Page 1

**EPA Tribes Only Session: Water Quality Standards Regulatory Changes** 

**Moderator: Evelyn Washington August 19, 2010**  **4 :**  **00 p.m.**  **ED T** 
Operator : Good afternoon. M y name is Patrick and I will be your conference o perator

today

. At this time

– or as a remind er, today 's call is being recorded and today 's briefing is available on your EPA Web site, and a link is included in your outreach materials. At this time, Iwould like to welcome every one to the tribes

- only session, water qualit y standards regulatory changes conference call. All lines have been placed mute to prevent an y background noise. After the speakers' remarks, there'll be a question

- and

- answer session. If y ou'd like to ask a question during this time, simply press star, then the number one on your telephone key

pad. If y ou would like to withdraw y our question, press the pound key

. Thank y ou. Ms. Washington, y ou may begin your conference. Evely n Washington : OK.

Hello. My

name is Evely

n Washington and I serve as the Director of the Standards and Health Protection Division here in EPA, the Environmental Protection Agency , and we're the group that's working on these revisions to the water quality

standard regulations. So Iwant to welcome to y ou this first of our listening sessions for the standards regulations, and this session is for tribal governments to hear your views on what we're thinking about in revising these regulations. Let me start out by

saying that we're at the earl y stage in this rulemaking process. We're at the very beginning of formulating what we're going to have in the proposal, and we're holding these informal opportunities to gather ideasPage 2

and to hear from you and others to help shape what we're going to put in the proposal. And this session today is the first step in consulting with tribes on this rulemaking . We recognize the importance of water qualit y standard to tribes and are prepared to work with y ou as we develop this proposal further. So Ialso want to note that this is one of several opportunities to provid e input over the course of developing these regulations. Over the next y ear there'll be an opportunity

for more formal comments after we actuall y publish the details of our proposal in the Federal Register, and during the comment period, we also expect to hold additional consultation sessions with tribes. As y ou will learn in a few minutes, we'll be taking a close look EPA regulations which govern the water quality standards' process, and we're doing that to improve the effectiveness in helping restore and maintain the integrity of the nation's waters. And all of us who work towards improving water quality have seen on a day

- to - day basis how important standards are at driving water qualit y improvements and also how controversial they can be sometimes. And we also see how issues that get in the way of us implementing standards seem to keep reoccurring from time to time over time the same issues. So the goal of this rulemaking is to address some of those reoccurring issues. That way , I think this rulemaking is an important goal for us, is one that we hope will make a difference in moving more effectivel y towards achieving the Clean Water Act goals. And with that in mind, we've come up with a targeted set of changes to the regulations and we've outlined what some of those changes are in the material that we sent out to y ou that invited you to this listening session, and we're going to go into more detail over the course of next few minutes into each of those issues so that y ou can understand what we're thinking about and then give us specific feedback on those issues. We think this rulemaking may be of most interest to those tribes that already have EPA

- approved water quality standards or developing them, but it's also probably of interest to tribes who have encountered issues relating toPage 3

standards

– related to standards in other jurisdictions around them. So for the next 20 minutes, we'll be using the briefing documents that we posted on the Web site to describe our thinking. And this briefing was d eveloped for the general public, but we will cover verbally some items that may

be of importance specificall y t o tribes. If you have the briefing in front of you, we'll lead you through it slide b y slide. We're now on slide one. And if you don't have the briefing in front of yo u that's OK, too. We'll be covering each of these points verball y, and the slides will be on the Web site for future reference and y ou can download them later. So moving onto slide two to look at the purpose of today's listen ing session, again, as I said, we want to solicit your views on specific provisions that EPA's considering in its proposed rulemaking . We will begin providing a short a short overview of what's being considered for the proposal and why we think it might b e helpful. We'll plan to keep our dialog about the issues short and concise so that most of the call can be devoted to questions and answers and hearing your views on the issues that we're thinking about. So slide three shows our schedule. As you can s ee, and as I said before, we're at the very

earl y stages of this rulemaking process. We've not made any final decisions y et on the content of the proposal and those decisions we'll be making after we talk to you as well as to state and to other stakeholde rs. Again, let me note that today 's session is not the only time we'll be talking to yo u. For example, as I said, once we publish the proposed rule in the summer of next y ear there'll be an opportunity for formal public comments. And then at that time, we'll have additional opportunity to meet with tribal governments to continue the consultation process. So turning to slide four, now we're launching into the actual meat of the presentation and the things that we're thinking about for the proposal. An d at this point, I'd like to introduce Fred Leutner, who's a senior advisor in our National Water Qualit y Standards program here in headquarters. Fred Leutner : Thank y ou, Evel yn, and welcome to everybod y on this call.Page 4
I've been really

looking forward to this. I've been working on tribal

- specific issues now for a long time, and I do see a lot of familiar names on the list of people who have called in. So I'm looking forward to this, and especiall y hearing your views when we get to the feedback part of the call. We're going to start out by [ running ] through our briefing outline here on slide number four. We're going to begin with some background on what standards are and wh y we have come to this point of revising our regulation. Then I'm going to provide a lot of details about the specific issues that EPA's considering, and those are listed here on the slide and we'll be getting to those in just a few minutes. On slide s five, six and seven, we'd like to give yo u a little bit of a refresher on som e of the basics of the water qualit y standards program and water quality standards. Slide five is a reminder of just what water qualit y standards are. They're provisions of state, tribal, or federal law that describe the desired condition of a waterbod y or the level of protection. Standards not only set the goals for waterbodies, but they are the foundation of water

- quality

- based controls, such as enforceable NPDES permits, for example. Standards consist of designated uses, water quality criteria, and antidegradation policies, and they can include general policies such as variances and mixing zones. On slide six, we continue with our refresher here. Under the Clean Water Act, states and authorized tribes have the primary role in setting standards. The states and tribes must hold public hearings to review their standards every three ye ars and revise them if they 're needed, and then EPA has to review and approve those standards and the revisions to standards in order for them to take e ffect under the Clean Water Act and be available for use in issuing permits or developing TMDL s . And finally , when deemed necessary , EPA can step in to impose federal standards in certain circumstances, and we'll be talking a little bit more about that under one of our i ssue areas. Now on slide seven, I'm going to give you a brief rundown of what's in the current standards regulation since that's the main topic for today 's call. In a nutshell, the regulation simply adds details to what the Clean Water Act itself say s a bout things like designated uses, water quality criteria, andPage 5
antidegradation , and it also specifies how states and tribes need to engage the public in any

revisions to water qualit y standards. The regulation also specifies the roles of states, tribes, an d EPA as we administer the standards' program. Now before I leave this slide, Iwant to point out that for tribes the regulation includes one particular section, Section 131.8, which was added in 1991 to implement what C ongress set up in the way of all owing EPA to treat tribes in a manner similar to a state for purposes of the Clean Water Act. Now in the future, I'm going to use the acron ymTAS instead of that mouthful that Ijust said. Iknow that some people may have problems with the TAS acrony m, b ut we really do mean and understand that that means treatment in a manner similar to a state for purposes of the Clean Water Act. EPA is not proposing to change Section 131.8. We support tribes who want to apply for TAS and we plan to continue doing that. The work we have been doing in recent ye ars to improve the TAS process has not actuall y involved any changes to that regulation, but just in procedures that EPA uses in working with tribes that are trying to get TAS. On s lide number eight, there's a little insight into why we're considering revising the standards regulation. The main parts of the regulation have been in place since 1983. So one could think that it's getting a little old, but on the other hand, these provisions have provided a very strong, solid foundation for controlling water qualit y in the country . But there are practical reasons for initiating this rulemaking

. As we have implemented the 1983 regulation, some important issues seem to keep coming up again and again, like Evel yn just mentioned, primarily with state standards. But occasionally with tribal standards as well, and that the regulation itself just doesn't address those issues, and that, in part, is why they keep coming up. And when they keep coming up, that can was te a lot of time and resources on every

body 's part, and we think that revising the regulation could help improve that situation. So that's our motivation.Page 6

On slide number nine we just wanted to give you a little bit of an idea of how we develop the ar eas of the reg that we are considering revising. We reviewed the recurring issues that I just mentioned, and the case law that has evolved. We have reviewed the 1998 advanced notice of proposed rulemaking that we put out, and we considered the comments that we got on it. We consulted with a number of state and EPA managers and experts to see their views, and finall y, we just sort of narrowed the focus to where we thought regulation changes would seem the most appropriate. Now those areas that we came u p with are listed on slide number 10, and I'll go through each of them in the next few slides. So Iwon't read through them right here. I do want to point out that we will be asking for your views at the end of this discussion. So as we go along in the next few slides, y ou might want to make a note of any questions and comments that y ou have as we go along and save them for the Q&A session that's coming up. I guess we would reall y welcome ideas or views supporting our ideas, but we would also be very interested and probabl y get more benefits if you actuall y have views on things like any possible unintended consequences of what we're thinking about and an y downsides to our proposals. W e also welcome an y specific suggestions for changes that you do or do not want to see in our proposal. So turning to the first issue, antidegradation

– it's on slide number 11

– the current regulation specifies that states and tribes must adopt specific antidegradation policies and must identify implementation methods . As a refresher, the policy

states that states and tribes need to protect existing uses and they need to prevent the lowering of high

- water quality unless it's necessary
– unless they

find it necessary

to accommodate important economic or social developm ent. The regulation also specifies that states and authorized tribes must adopt specific antidegradation policies, and at this point, all states and TAS tribes have adopted policies in accordance with the regulation. And we really don't see an y need t o change that; however, we are concerned about implementation of antidegradation ; implementation methods in particular. And althoughPage 7

many states have done a good job of implementation, some states have not even identified antidegradation implementation me thods despite the requirement to do so. And for tribes, there's somewhat of a similar situation. Many tribes have done an excellent job and

– but there are a few others that are onl y in the earl y stages of developing implementation methods. So at thi s point, EPA is considering modifying the regulation to specify that the antidegradation implementation methods must meet specific minimum requirements. To do this, EPA's considering adding a paragraph that would specify minimum implementation elements to be included in state or tribal standard s . A minimum element , for example, could be that we would require that a state or tribe have a process for identifying high

- quality waters. EPA is also considering requiring that anti

- deg implementation methods mu st be adopted into state and tribal water quality standards rather than simply being identified. The methods would thus be subject to EPA review and approval. Our current thinking is that these changes in the antidegradation area would bring more consist ent application, clarity , and transparency to the protection of high

- quality waters. And further, EPA's oversight role would be more clearl y defined. That's the first issue, five to go. The second one on slide 12 has to do with something we call the [E PA] A dministrator's determination, which is really the A dministrator's ability to determine that new or revised water quality standards are necessary

to meet the requirements of the Clean Water Act. If the A dministrator makes such a determination, it obli ges EPA to promptly propose federal standards and then finalize them within 90 day s unless the state or tribe steps in and revises its standards before that time elapses. Now over the ye ars there have been some recurring instances of confusion or misunde rstanding about what constitutes an A dministrator's determination, and I'll point out that all of these instances that I'm aware of have involved states not tribes. For example, in some cases, EPA staff people have sent routine letters suggesting prioriti es for states to consider when they revise their standards, and some courts have construed these kinds of routinePage 8

communications to states as official EPA determinations under Section 303(c)(4)(B) of the Clean Water Act that oblige EPA to promulgate water quality standards. So we're considering clarifying in the regulation that an administrator's determination must be actually signed b y the [EPA] A dministrator or by someone he or she specifically authorizes, and that the determination must include a statement that it

– that it in fact constitutes a determination under Section 303(c)(4)(B) of the Act. Our current thinking is that this ty pe of change could assure that it is clear when EPA has or has not made one of these determinations, and this kind of c hange would also allow EPA to continue to provide routine written suggestions to states and tribes without triggering the need for immediate federal action. The next issue area has to do with designated uses. Our current regulation is based on Section 101(a)(2) of the Clean Water Act, which establishes the national goal for water quality : protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water , wherever attainable. So if a state wants to remove one of these goal uses, our regulation requires it to demonstrate that attaining the designated use is not feasible for one of six specific factors, and they must also submit a use attainability anal ys is, which is a structured scientific assessment of factors affecting the attainment of designated uses. However, the regulation does not specify what y ou do if y ou
– what uses, if any , must be adopted to replace the use that is being removed. And on another front, EPA's longstanding interpretation of the Act and regulatio n is that Section 101(a)(2) uses are attainable unless a state or tribe demonstrates otherwise. This interpretation is actually central to the standards program, but it is not articulated explicitly in the regulation. So, as a result, we are considering clarifying that designated uses reflecting the goals of the Clean Water Act are attainable unless otherwise demonstrated. States and authorized tribes must designate such uses unless they have conducted a use attainability anal ys is to support a lesser de signated use and EPA has approved that action. And then we're also considering clarifying thatPage 9
the highest attainable uses closest to the 101(a)(2) goal of the Act must be adopted if such a goal itself is not attainable. That's what we're thinking of in the designated uses area. On slide 14, we talk about variances, which are temporary changes to water quality standards, and these are things that states and tribes can do. They 're not required to issue variances. Now the current regulation allows state s and tribes to adopt variances as general policies for applying and implementing their water quality

standards. We specify

this in Section 131.13 of the regulation. We would retain a state's or tribe's discretion to do this. I'm not aware of an y tribes actually having adopted a variance, so I'm not sure how much immediate e ffect this would have, but these changes would affect both states and tribes, of course. The current regulation does not provide an y specificity on how to use variances. So, as a r esult, there is some confusion about the proper use of variances. And furthermore, variances are sometimes repeatedl y renewed without achieving environmental improvements in a waterbody. So we're considering establishing some explicit provisions to guide the use of variances. For example, we're considering a provision that requires all variances to have an expiration date. This kind of change could provide some regulatory

clarity we think on what is acceptable for variances and what is not. On slide 1 5, we're going to talk about triennial reviews. These are the reviews that are required every

three y ears by

the Clean Water Act. The current regulation does not call for involving the public when states and tribes determine what they

will focus on in th eir reviews . I f a state or tribe chooses to focus just on some parts of their provisions rather than the entire set of

– the entirety of their water quality

standards, this can have the effect of narrowing public input to those portions of standards that the state or tribe choose to review and really

doesn't allow the public to comment on the entiret y or some other aspects of standards that they might be interested in. Another concern is that despite the availability of new scientific information from tim e to time, some states or tribes may not be considering that kind ofPage 10
information in a timely

fashion, and thus may

not alway s evaluate whether their current criteria continue to support their designated uses. So we're considering revising the requireme nts of the regulation to specify that states and authorized tribes must solicit and consider public comments in determining the scope of each triennial review. We're also considering establishing a new triennial review requirement that states and autho rized tribes must evaluate whether their current water quality criteria continue to be protective of designated uses taking into consideration any new information that has become available since the state or tribal criteria were adopted or last revised. S o this would clarify that states and tribes would need to consider EPA's most recent national recommended water quality criteria, for instance, that we publish under Section 304(a)

. Our current thinking is that these changes could increase transparency b y ensuring that stakeholders have an input on the scope of triennial reviews, and we think they

could also strengthen oversight of whether state and tribal water quality criteria are being kept up to date and whether they continue to protect designated use s. Finally , on slide 16, we get to some specific court cases that have come up since we last revised the regulation . W e're considering codifying into the regulation some of the results of those court decisions. The first two cases have generall y not i nvolved issues with tribal standards that we are aware of, but the third one, when I get to it here, would affect the administrative procedures of tribes that have TAS. So first, EPA's considering revising the definition of water quality standards that appears in the regulation to reflect the results of a 2004 court case concerning Florida's impaired waters rule. In this case, some binding provisions of state law had the affect of changing standards but without EPA review and approval. So the court de cision and EPA's response to it actually resulted in some definitional clarit y on what kinds of provisions actuall y constitute water qualit y s tandards, and thus would be subject to EPA's review.Page 11
So we thought we would try to codify what those distinctions are in our regulation. A second case involved compliance schedule, and specificall y provisions in standards that authorize compliance schedules . W e're considering specifying that those kinds of provisions that authorize compliance schedules are in fact considered water quality

standards, just to make that clear, and therefore, that they must be submitted to EPA for review and approval. As y ou may know, compliance schedules govern the timing of water

- quality

- based e ffluent limits in NPDES permits. T hi s change would codify the results of our 1990 environmental appeals board decision involving the StarKist Company
. I just wanted to point out, however, that while authorizing provisions would be considered water quality standards, compliance schedules them selves

– the actual change in dates for permits to be complied with

– are permitting provisions and not actually [water quality ] standard s . So it's authorizing provisions that we're most interested in here. Now the one that could affect some tribes is the third one. Here we're considering clarifying that states and authorized tribes must submit to EPA the records that they

have of public participation that has occurred in reviewing and adopting standards. These records would include public comments and the states ’ or tribes ’ responses to the comments. Normally , states and tribes do keep such records. The thing here is that they need to be submitted to EPA to comply with some of the points that were made in the 1996 decision concerning the city of A lbuquerque so that EPA can have full consideration of those comments and the responses to them when we're doing our review. In general, we think that these three ideas we have for codifying these positions in regulation will really help eliminate some confusion and hopefully could minimize future litigation on these topics. With that, we've finished our presentation, and slide 17 gives you a little bit more information or places y ou can go to get more information about these

–Page 12

both about these liste ning sessions themselves and about water quality standards in general. They also show where we will be posting the transcripts and recordings of these sessions and how you can provide your views in writing if you want to add to the views that y ou express here today

. Please note again that these are just listening sessions at an early stage of the rulemaking process and there will be a formal 60

- day public comment period coming up next summer when we actuall y, or after we actually publish the proposed r

ule. So thank y ou very

much for y our attention. I'm going to now back to Evely n Washington for the Q&A session. Evely n Washington : Thanks, Fred.

Now is where we turn to getting input from folks on the call. And first, Fred and I will be happ y to answer an y clarifying questions that y ou have about what y ou've heard in the presentation so far. And here we've set aside 15

– 10 to 15 minutes for these clarifying questions and would appreciate if y ou would keep the initial questions short and limit them to questions or clarification about what you've heard. And then after we're done with this phase, we'll go into getting more comments and views from you about what EPA's thinking about doing in this rulemaking

. So, Operator, if we can now move ont o the Q&A session for clarifying questions. Operator : OK. Yes, ma'am.

And at this time, if y ou would like to ask a clarifyingquestion, y ou may press star one on your telephone keypad. Again, that is star one to ask a clarifying question. And after o pening y our line, please give your tribe or affiliation. We'll pause for just a moment to compile the Q&A roster. And y our first question comes from the line of Eric Rich. Eric Rich : Ready ?Page 13

Operator : Go ahead, Eric. Eric Rich : OK.

Yes, hi. This is Eric Rich with the Navajo Nation Environment Protection Agency . I'm a senior hydrologist in Yuba City , Arizona, and I want to thank Evely n Washington and Mr. Leutner for providing us the opportunit y to comment on the Clean Water Act revisions and also other issues. And I know I brought this to Mr. L eutner's attention before, and I wanted to try to get an idea of how

– you had mentioned states and tribes must consider most recent federal criteria

– how the Clean Water Act, the changes to water quality standards exist within the context of the EPA strategic plan, specificall y objective 2.2 protect water qualit y. Now this is EPA strategic plan I'm looking at for 2006 and 2011. Under 2.2 Part one improve water quality on a watershed basis, it say s state s and tribes must

– or
– I' m sorry
– that states and tribes

– or
– I'm sorry

– improve water quality

in Indian country

at not fewer then 10 percent of baseline monitoring stations. It has a specific goal of improving water quality , which is not necessaril y consistent with 101(a) of the Clean Water Act and 101(a)(2) , which is to maintain the chemical, phy sical, and biological (integrity) of the nations waters. And then from that there's been a whole document, which is the [section] 106 grant guidance for tribes that was produced that relates to recommended core standards to which federal recommended criteria have not necessaril y been applied. So I'm just trying to get a sense of

– not working within just the vacuum of redoing the Clean Water Act or the water quality standards, but how, especiall y for tribes, it relates to these other issues, specifically the 101 grant guidance for tribes. So if y ou could elaborate on that, I'd appreciate it. Thank y ou. Fred Leutner : Sure. This is Fred Leutner. Thank y ou for y our question, Eric.Page 14

I guess a couple of thoughts come to mind. One is, Iknow that y ou and others have pointed out that

– and this

– by the way this is off the track of the standards... Eric Rich : I understand. Fred Leutner : I happen to know a l ittle bit about this other thing that y ou just raised so I'll go

ahead and answer it. You were concerned that some of our strategic plan measures focus on the restoration part of and

– I' m sorry
– on improving water quality but not on maintaining it. So for the next strategic plan we're going to change that and we're going to cover both maintenance and restoration. But specifically , Iguess I'm a little confused about the question. T he 106 guidance itself is very

comprehensive, and it talks about not o nly those tribes that may want to get TAS so that they can adopt their own standards under the Clean Water Act, but it also recognizes that there are man y tribes that want to just adopt standards under their own tribal law and forego the TAS process and en force those standards under tribal law, or there may be situations where they don't even need water quality standards to address particular water quality issues such as nonpoint sources that they might have. So it's a very

broad guidance, and we understand that, and I think we've made provisions in that particular strategic plan measure that y ou talked about for accommodating tribes that have TAS and those that don't have TAS and how they report under that measure. I think that's getting into a little de tail that goes bey ond what we were here to talk about today . Eric, I'd be happy to talk to y ou off line more about if this doesn't answer y our question here today

. Eric Rich : Thank y ou. Operator : And again to ask a question, y ou may do so by pressing st ar one on your telephone key

pad. Fred Leutner : We can go ahead with the next question then, please, Patrick. Operator : And our next question comes from Curtis Francisco.Page 15

Curtis Francisco : Hello? Fred Leutner : Yes? Curtis Francisco : Yes, this is Curtis Francisco from the Pueblo Laguna. I have a couple of

questions regarding specifically the point of race. I guess the first is antidegradation . I'm a little bit unclear about how these changes are going to be implemented across the board even that, though, the United States is a fairl y l arge country and each tribe is in a different area and a different environment. And so I'm a little concerned or may be confused about how headquarters is going to implement something that's going to be relevant to all tribes because a tribe in New England that has something, it's not going to be applicable or even applied to a tribe in New Mexico where I'm at. So I have some concerns and questions about that, and I'm not sure that this policy is going to address that. I have some questions also on the administrator's determination as to specificall y
– again, it refers to which tribes and where

– it's going to need to be specific. And you've mentioned here that the things that you're getting or yo u' re trying to get a clarity on and make things more specific it's going to be hard for tribes I think when it starts to get reall y s pecific because it's going to be dependent on location, name, what resources they have available, and how they use them, which leads into my third point on uses

– the designated uses specificall y
– especiall y for tribes that are

– I guess Iwould have to say more traditional

– cling to their more traditional way s designated uses has been seen as a very

basic tool for getting into a tribal site practices and uses of things that they

don't share with the outside world and specifying a designated use of a waterbod y, sa y, for traditional cultural purposes having to divulge some information when none is reall y wanted to be divulged without doing rep arable damage to a tribe and may be resources or artifacts that may be there because you're opening it up to thought hunters and people that don't need to be there. So Ihave very

strong concerns about the designated use verbiage

– usage portion of that . And then regarding variances, I have some questions andPage 16
concerns about variances and how they 're going to be applicable. Again, it's going to be dependent upon the tribe's location and the specific variance that they 're going to be going after, such as here in the Southwest with the Pueblo Laguna when we have heavy rainfall, we get torrential flooding. How would we address that

– the water quality standards, and y ou have something in between there that's going to impact water all the way down the chann el that there may not be water in before? So, again, it's going to be a very specific question. So that's what I'm concerned with at this point. Fred Leutner : OK, thank you very much for that. I covered a lot of territory , and may be we're sliding into

– a little bit into your comments and views rather than just clarifying questions, but let me try to answer in general terms. In several places, you made the point that water quality standards, whether they be the designated uses, or the antidegradation s , or the administrator determination, that those are all going to be very tribal

- specific or state

specific. They 're going to be different in different parts of the country . The regulation was set up back in the very beginning to recognize that. That's in fact wh y we don't have EPA setting those standards. That's wh y we have the states and the tribes setting those standards. We know that they 're going to be different. That's why we don't dictate exactly what number y ou should adopt for , you know , h ow man y milligrams per liter the water should have of dissolved oxygen. That's going to vary from waterbod y t ype to waterbody t ype. So I guess as a general answer to your question, we're not proposing to change an y of that with any of the revisions that we're talking about here today . The regulation recognizes that variability and we want to continue that. Now with regard to y our concern about when y ou designate uses that y ou might not want to divulge exactly what the tribe is going to do with the water and exactly

wh y it needs the water quality for that water body , those again are completely

the way y ou describe your use . H ow you explain it to the public is totally and completel y up to the tribe.Page 17

There are examples of how tribes have very effecti vely

protected water quality for their particular ceremonial or cultural or traditional uses, and they 've done that in a way that doesn't say

exactly how that water's going to be used. It may

require a certain level of purit y, a certain absence of disease

causing organisms, or certain contaminants being below a certain level, but it yo u don't have to specify exactly how you're

– what that use is going to be for. I hope, Curtis, that that answers your
– gives a very general answer to your question. If we need to get into specifics, I might ask y ou to hold y our comments to the latter part of the call when

– if yo u've got follow

- on questions, we can come back to them. Curtis Francisco : OK, thank you. Fred Leutner : Thank y ou. Evely n Washington : Are the re
– are there an y more clarifying questions? We are seeking

questions from folks who have questions about what's been presented in the overview of the issues that we're presenting today , and then we'll move on to more of the sort of comments and views. But what I'm looking for is specific questions where people are confused about facts or information that was presented earlier. Operator : And again, if you'd like to ask a clarifying question, please press star one. If

yo u would like to withdraw y our que stion, press the pound key now. And we'll move on to our next clarifying question. Our next clarifying question comes from the line of Marshal Chung. Marshal, your line is open. Marshal withdrew his question. Your next clarifying question comes th e line of Ken Norton. Ken Norton : Well, this is Ken Norton from the Hoopa Valley tribe.

This is in regards to the changes to the antidegradation policy and identifying high

- qualit y waters. A clarification that we identified our water qualityPage 18

standards based upon background levels that were established in 2002, and basically , our question is in establishing high

- quality waters, we would have to have a database identifying qualit y waters. Is there going to be a criteria of having so man y ye ars of information that characterizes the water qualit y? Fred Leutner : Hi, Ken. Thank you for your question.

I'm going to

– I'm looking around the room at our

– some of our experts here, but I

– we have not proposed that level of detail. Ken Norton : OK. Fred Leutner : See

– what you see here below is that we would simply specify that we would like to see

– well, let's take y our example. O ne minimum element we might like to see in antidegradation implementation method s , the one minimum element might be for you to d escribe to us how yo u are going to identify y our high

- qualit y waters. Ken Norton : OK. Fred Leutner : If you've chosen to use background levels in 2002 as to help you decide that,

that

– all you'd have to do is tell us, y es, that's yo ur method that you int end to use. Ken Norton : OK, good. Fred Leutner : So that's sort of the level of detail we were hoping to get into. Now when we

actuall y get to the proposal, Iguess, for the later part of this call, we would be very interested in knowing what kinds of mi nimum elements y ou would like to see. Ken Norton : Sure. Fred Leutner : So if

– when we get there, please hold your ideas and be prepared to give us

some ideas because we're looking for some.Page 19

Ken Norton : OK, so there wouldn't be a minimum of five y ears of collection of background

levels after our water qualities have been established for different perimeters that define high

- qualit y waters. Fred Leutner : No, y ou'll see in our guidance to date that we've been very open in allowing different methods to be used to identify

... Ken Norton : OK. Fred Leutner : ...high

- quality waters. That will continue to some extent, but we may be putting some boundaries on it. We may consider boundaries, and we'd be very interested in knowing if people out there have idea s for how we might want to make an y limitations. Ken Norton : Thank y ou, Fred. Fred Leutner : Thank y ou, Ken. Operator : And again, to ask a clarifying question, please press star one. If you would

like to withdraw y our question, y ou may press the pound k ey . Your next question comes from the line of Alex Cabillo

. Alex Cabillo : Is m y line open? Evely n Washington : Yes, Alex. Alex Cabillo : Yes, the question is how is EPA looking at going to assist tribes and funding

and be able to do these water qualit y standards' changes? Fred Leutner : Well, thanks, Alex. Good to hear your voice again.

As y ou might guess, EPA is not saying

– [in a policy rule] we don't reall y talk about how we're going to do funding. Well, let me try this again. This is a reall y go od [question] . We think that the actual burden that would be placed on states or tribes b y the kinds of changes we're talking about would not necessarily

be a huge resource load. For instance, in the antidegradation one we just talked about, it would be just simply to tell us what y ou're

– to specifyPage 20
the minimum elements in your anti

- deg implementation method and it could well be that your tribe alread y has done that. So it may not be much more of a requirement. I guess we have to just recognize that as with an y program to protect the environment under EPA there's alway s going to be resource limitations, and that we ty picall y make allowances for that in many different ways, including may be narrowing the scope of triennial reviews to those things that we
– that can be done in a particular triennium period. But I guess I will make a note for the record that you're expressing concern about resources. And we certainl y have heard that in other forums that tribes are concerned about their resources, and we 'll take that into account as we proceed with an ything we do under this rule. Alex Cabillo : Thank y ou, Fred. Evely n Washington : OK, I think we have time for may be one or two more specific clarifying questions and then we'll move on to open it up for the larger dialogue of views and comments. Operator : OK, and we'll move onto our next question, which comes from the line of

Gary Morashima. Gary Mor i shima : Hello. My

name is Gary

Mor i shima from the Quinault N ation. I've got two clarifying questions for yo u. The first is, is the place where I can find the proposed process that you intend to use for actual tribal consultation on these changes? Do you just intend to use conference calls like this, or y ou actually intend on undertaking a formal consultation process? The second question deals with y our issue number six and in corporation of findings or requirements under court decisions. Specificall y there was a case that just came out of the Ninth Circuit that ruled that logging roads were a point sourc e for industrial pollution and required permitting by the EPA under the Clean Water Act. The question primarily relates to how y ou decide which court decisions are going to be incorporated within the new rules.Page 21

Fred Leutner : OK, thank you, Gary . Those are two good questions.

First, the process for consultation, we

– as y ou know, the consultation process within the agency

is still in draft at this point. We have

– the Office of International and Tribal Affairs is taking comments on the draft policy

. W hatever comes out of that process, we will be

– as an y other rulemaking project in the agency , we will be subject to the policy that emerges from that

– from that process. We know that there are lots of different way s to consult. We are open to ideas on how to do that. We will certainly continue to have call is like this. But if there are calls

– if there are requests for other ways to consult, we will be open to those and be prepared to put those into our consultation plan. We will be working with the Office of International and Tribal Affairs to sort of refine our consultation approach as we go along. At this point, the next major step will be our proposal in the summer of next y ear, and we will be working out our specific plans for how to consul t

– how to continue the consultation process as we get nearer to that time. With regard to how did we select the cases, the one y ou cited, if we were to

– just knowing a little bit about it

– I just read about it probably just like y ou did in the last couple of day s
– it sounded to me like that's primarily something that has to do with our permitting program and what ty pes of discharges are covered b y permits. So

– with not a whole lot of implications for water quality standards

– we might not be looki ng at that one. The ones that we focused on and the three that we cited here are ones that have come up in implementing actual water quality standards' programs and the decisions that have come down have had direct ramifications for how we operate and make day

- to - day decisions. So it's more the content of the case. Whether it has to do with water qualit y standards, whether it is something that we feel extends bey ond the facts of that particular case and should be applied to other cases as well, a lot went into that and a lot of experience over the last couple of decades.Page 22

Gary Morishima : Thank y ou for y our clarification. Evely n Washington : OK, I think we have one

– time for one more clarifying question. Operator : OK, and our last clarifying question comes from the line of Marshal Chung as

a follow

- up . Marshal Ch e ung : Marshal Ch e ung, environmental coordinator for the 29 Palms Band of

Mission In dians. I just have a very quick question as

– or actually clarification as

– what is the “ public ” in Indian country , or what do y ou consider to be “ public ” ? Is that off and on the reservation, or is this on the reservation only ? Fred Leutner : Well, Iguess the same kind of question would apply to states, what is the public with regard to a state when they 're a dopting their standards. We tend to leave that up to the state or the tribe . C ertainl y it would involve people that reside within the reservation or within the state. So we would think that would be a minimum, but the tribe may choose to extend bey ond th at. But I would say

– this is off the top of my head

– I would think we would as a minimum say

that it would include people who reside within the jurisdiction of the entity

. Marshal Ch e ung : Thank y ou. Evely n Washington : Well, Ithink at this point, we s hould move on to take comments and views

about the targeted regulatory revisions that we're looking at and have the Operator open it up for any comments, views, opinions about what we're talking about today

and this proposal that we're looking at putting o ut next summer. Operator : OK, and at this time, if you'd like to ask an audio question, you may do so by pressing star one on your telephone keypad. Again, that is star one to ask a question. We'll pause for just a moment to compile the Q&A roster. An d our first question comes from the line of Eric Rich.Page 23

Eric Rich : Yes, this Eric Rich again. Iguess this is actually a specific clarifying question. As y ou may

or not may

know, we have primacy

for the 401 water quality certification process, which c ertifies that water quality standards will not be impacted b y either of the two federal permitting processes, which are the Clean Water Act Section 402 and N PD E S discharge permits and the Arm y Corp s [Section] 404 [permits for] discharge of dredge material in the waters of the United States. Under F, I see that there is not any discussion of the Raponos decision, and especiall y here in the Southwestern United States with ephemeral waters, we are getting quite a bit of, oh, from the regulate d community tryi ng to make sure that their you know waters are not navigable waters, and therefore not subject to our water quality standards' regulations. And that might be out of the scope of what you're trying to do. As you mentioned, it was

– this is kind of a progr am implementation applicability , may be not the Clean Water Act

– or water quality

standards' applicability

regulatory action that

– so I was just wondering if there's an y discussion of that. Thank y ou. Fred Leutner : Thank y ou. The first thought that cam e to my mind is the Raponos non

decision, but that's OK. Eric Rich : Exactly , y es. Fred Leutner : We

– I think the way it affects standards is that as with any other program the reach of the Clean Water Act is determined b y what is considered a water of the United States, and as you well know, that's in flux now as a result of that split decision

– plurality decision of the Supreme Court. We

– I think we just need to see how that sorts out. I don't think

– you know our regulation, if you look at it c arefully , doesn't reall y talk about which waters of the U.S. standards apply to. I think there's just a basic assumption that water quality standards should be adopted for all waters of the U.S., but we

– just like any other program, we're not going to si t down for standards and identify which waters [are waters of the U.S

. ] We're going to rel y on the evolving case law involving that definition to make thatPage 24

decision. I'm not aware of an y case right now or any situations. Maybe other people in my

group c an think about (inaudible) situations where... Sherry Barish : Fred? Fred Leutner:

... water qualit y standards come up. Is that Sherry? Sherry Barish : Yes. So this is Sherry Barish

.

I'm also with the Water Quality Standards program, and Ijust wante d to add that Ibelieve that the folks who run the 404 program, like the wetlands program at EPA, are looking into that and trying

– you know trying to move forward to figure out how to address the waters of the U.S. issue. I don't know where they 're goin g to end up you know, whether it's additional guidance or regulation or

– you know we're not as close to that topic, but there is a group in EPA who is trying to move forward to figure out and sort that issue out. Eric Rich : Yes, what's been happening, at least at the Navajo Nation, is that in certain

cases, we have the regulated community making those determinations for themselves, basicall y sa ying, well, based on Raponos we don't feel that yo u know our activity

in this waterbody

falls within the scope of the Arm y Corp s of Engineers, therefore, we don't need an y 401 certification. That's

– several or y ou know a few incidences, but that's kind of what's been happening a bit. Fred Leutner : OK, thank you. Eric Rich : Thank y ou. Operator : And our next que stion comes from the line of Nancy Schuldt

. Nancy Schuldt : Hello, Fred. I have a question or may be an observation about the very first issue that y ou're looking at for review and revision, and that's the antidegradation demonstration. That was a su

bject that we tackled when we went through our first triennial review process here a couple of y ears back, and it was something that we felt we wanted to strengthen in our water quality standards. But as I looked atPage 25
other tribal and state water quality st andards' documents, they 're really all over the place, and I didn't find any thing that I thought was doing a better job. And I wondered if you're at the point now at EPA to where you could recommend certain ordinances or a certain language that you have s een have held up well when implemented. Fred Leutner : Nancy , that's a reall y good question and good observation.

I think may

be there's a distinction here between what's the minimum that EPA can accept, what's the federal minimum requirement, and on th e other hand, what kinds of things would we like to see, what kinds of things do we recommend. The regulation change that we're considering here would work on the first part of that problem, that is focusing on trying to bring everyone to an equitable lev el so that the minimum requirements that really stand out as the things needed to make antidegradation work would be specified in our regulation. Now I guess in other context s , you can't legislate good behavior, and so following that kind of logic what we can do and have done and have been very happ y to do is to provide examples through our regional offices of things that we have found useful. We also have on our Web site a clearing house of ideas on antidegradation . Idon't have the URL for that, but we would be happy to send that to y ou off line if we have if we have

– so we could let you know what we have been doing in that area. It's a good idea and that's wh y we set up that kind of a clearing house. So, in short, we would love for every state and every

tribe to have the ideal antidegradation program, but some places

– but the ideal is oftentimes in the ey e of the beholder. And so the most we think we can do at the federal level is talk about what minimum elements would be required. And at th is point, our regulation's silent on that. We've got lots of guidance but not a whole lot of specificit y [on minimum requirements] , and we think that's what's led to some of the confusion and lack of uniformit y and consistency from state to state and from tribe to tribe.Page 26

Nancy Schuldt : Well, thanks, Fred, and I would appreciate having a link to that clearing house

information. Fred Leutner : OK, thank you. We c an do that. Operator : And again, if you would like to ask a question, you may do so b y pressin g star

one. Your next question comes from the line of Eric Morris. Eric, your line is open. Eric Morris, your line is open. And we'll move on to our next question. And at this time, we do have no questions in queue. If you would like to ask a que stion, y ou may

press star one now. Your next question comes from the line of Curtis Francisco. Curtis Francisco : Yes, this is Curtis Francisco from the Pueblo of Laguna again.

I have some questions Iguess that are a little bit off topic of what y ou we re talking about. And I guess the first one that I would

– I would like to see built into this whole process is quality assurance project plans. Iknow that y ou gu ys require tribes to have quality assurance project plans before we submit data, and whethe r it's first hand, second hand or fifteenth hand, we still have to have a QAPP . Ithink that

– and it's probabl y would pacify a lot of tribes it

– and it would also give them some I guess comfort if the EPA had to provide a QAPP for how they 're using thei r data that's going to be put into the STORET WQX warehouse. We'd like to know how it's going to be used and what procedures y ou guy s have in place for that. I know y ou've written that into the 106 guidance and yo u require it of tribes. But I think f or the old adage, what's good for the goose is what's good for the gander, I think EPA needs to take a serious look at that in providing that information. The other question sparks some interest on our part here as what you gu ys are defining as community and public review. I know that within the Pueblo ofPage 27
Laguna when we have our meetings

– we have them every week, they 're called village meetings and that's how our council interacts with the people

– we don't record an ything. There's no minutes taken. A lot of it is not done in English. It's done in our native language, which is not written. Recording is not allowed so sharing that with y ou is going to be a problem especiall y when it comes to issues that y ou raised like with the decision with Albuquer que versus Browner and how specifically we get into that. M an y tribes conduct those t ypes of meetings in their own native language and unless it's written I don't know how that's going to be handled. So that sparks an interesting question. Then y ou said you leave it up to the tribes or states to determine that. We don't allow non

- tribal members into our meeting. It doesn't pertain to them. If we get water quality

standards, I guess we have to figure out some way to interact with the non

- Indian community if our standards are going to impact them, but Ithink most of our standards are going to apply to water just within the reservation. We don't have a lot of this here. So those are kind of generic questions that Ihave in area. And the other thin g I just wanted to touch on again deals with the designated uses, a little bit more elaboration on our part here. Iknow for under region six, they like us to identify latitude and longitude on a map, and the answer that we've been given that we're not co mfortable is, well, don't define it. If you define every

thing around it, y ou define it, and the fact that EPA say s, well, that's not defining it. And if you define every thing around it and y ou have a hole there, it doesn't take a rocket scientist to fi gure out that there's some may

be cultural, traditional use that goes on there and then we have problems keeping people out of those. Whether your reservation is large or small, that's the proprietary information, and just because you want to

– you want t o know it doesn't mean that y ou actuall y have the clearance or the right to know it, and that goes back to having a top securit y cl earance you might (inaudible). But unless you have a right to know or a need to know y ou're not going to be given that infor mation.Page 28

So Ithink that same t ype of mentality that EPA sells to tribes they need to remember itself. Fred Leutner : Hey , Curtis. Thank y ou. Those are prett y good questions.

I'm going to forward your [ first ] question on QAPPs

– for the uninitiated, th at's Quality

Assurance Project Plan, QAPP

– I'mgoing to refer

– suggest that we refer that to our Office of Wetlands, Oceans, and Watersheds that oversees the water quality monitoring program. That whole requirement to have qualit y assurance project p lans comes from a

– sort of derives from a requirement in the Clean Water Act [section] 106(e)(1) that has to do with requiring certain features for water quality monitoring programs, and those are all administered by that particular office. So, Curtis, w ith your permission I'm going to refer that question to them and give them your e - mail address so they can get back to y ou. Would that be OK? OK, secondl y, on the public review, can I ask you

– just to clarify m y understanding, [that] yo ur tribe has no t y et received

– been found eligible

– for TAS. Is that right? And... Curtis Francisco : Yes. Fred Leutner : ... I'm not sure that you've even applied for it at this point. I s that... Curtis Francisco : Well, we're in the process... Fred Leutner : OK. Curtis Francisco: ...and the reason

– one of the reasons I guess wh y we're more interested about

it is because of the resumed interest in uranium mining here in the grants mineral belt. And just for your clarification, we're bound by two Pueblos that do have water qualit y standards, the Pueblo of Acoma and the Pueblo of (inaudible). And so Laguna has been wanting to get water quality standards in place for quite some time now and with the upcoming issue of resumed uranium

– a potential uranium mining th at does purely affect the water qualityPage 29
and quantities that we would receive. And so that's something that we're interested in here. But how these are all going to play out together are going to be

– I guess that still needs to be figured out. Fred Leutner : Right, right. Well, I think y ou made a good point y ourself. You said that

may be this

– the whole idea of what y ou define as y our public and how y ou conduct the public hearing that's required b y the Clean Water Act, you will need to , I suggest , work with the regional office in Dallas, [EPA] R egion six, and their staff there to figure out a good way to address that. There is no requirement that all

– that a state or tribal deliberative process be recorded in the public record

. What we're talking h ere about is that there is a requirement under our regulation, and I think under the Clean Water Act, y es, to have a public hearing. You're going to have to figure out what your public is and you're going to have to figure out how you're going to conduct that. Public hearings are subject to another regulation of EPA. It' s 40 CFR Part 25, I believe, and so y ou and your legal staffs will have to sort through exactl y how you handle that. And y ou might take some advice from other tribes on that. I'm sure that other tribes have encountered that situation, and I'm sure that folks like Diane Evans in the R egion six regional office would be able to help you find examples of how other tribes have done it. On the third question about designated uses , again, th is is one where may be the regional office can help you, and I think what you may want to look at is whether you reall y do even need to specify which waterbod y has special protection. It depends on what kind of protection you need for that cultural and tra ditional use that you may have. And if it turns out it's the same as, let's say , some people doing some boating or fishing activities nearby that might need the same kind of protection as the cultural and traditional use might need, then you may not even need to specify a different use. On the other hand, if you do have specific needs that apply to that stretch of the waterbod y, it might mean that you need to have that same standard applyPage 30
to a broader stretch. So there may be way s to, if you will, witho ut disclosing the exact location where a ceremon y might be taking place, still provide the protections that y ou need. So Iwould recommend that's the kind of thing that would be best discussed with y our regional staff that we have available. Curtis Francisco : That's... Fred Leutner : (Inaudible) Curtis Francisco: ... one of the problems we've been facing and that's wh y I brought up the point

of them

– region six’s decision or suggestion was define every thing except the point where we're doing stuff, and our contention is, well, that still defines it. Fred Leutner : Yes. Curtis Francisco : As for the use of

– the highest use would be consumption, [and as for] boating

or fishing, well that's not allowed here so the assumption is what we would be protect ing. Fred Leutner : OK, good. Curtis, I'm going to need to cut y ou off because I think we're

running out of time. We only have about 10 minutes left and we've got several people in the queue. Would y ou mind if we went on to the next... Curtis Francisco : No, that's fine. Sherry Barris : And, Fred, this is Sherry . Iwanted to give the Web site for the

clearinghouse. Fred Leutner : Sure. Sherry Barris : OK, it's

– our new Web site doesn't start with www any more, so it's [ http://water.epa.gov/scitech/swguidance/waterquality /standards/adeg ] , and that's the clearinghouse. You can also do a Google, EPA antidegradation clearinghouse, which is how I found it. OK, that's all. Fred Leutner : I see a trend here away from long URL s . Can we go to the next...Page 31

Operator : Yes, sir, we can.

Your next question comes from the line of Todd Thorn. Todd Thorn : Hi, this is Todd Thorn with the Colville Confederated Tribes.

I had a question regarding the triennial reviews and getting back to the phrase that you used taking into consideration any new information that is EPA recommendations, and I' m just wondering if you could provide a little extra detail regarding that is the expe ctation you think for that we will need to respond to all new recommendations and either integrate those into our standards or somehow rebut the need for them. Fred Leutner : Yes, thank you, Todd.

The proposal that we're considering would simpl y
– let me just turn to that page so I'd be sure to get that right

– would simply require that states and tribes evaluate whether water qualit y criteria are still protective of the designated uses taking into consideration an y new information. Ithink most states and tribes do that, but what we're concerned about are the situations where a state may

have gone several triennial review cycles without having incorporated some of our updated numbers. So that's what that's aimed at. I think there's flexibility

in h ow it's implemented, taking into

– to take into consideration things like you know how important is that change to make and so on and whether it can wait till the next cycle. But any way ,this would give us a little bit more oversight over that aspect of st ate and tribal standards. Todd Thorn : OK, thanks. Operator : And our next question comes from the line of Scott Bulgrin. Scott Bulgrin : Yes, these changes you've got here on the water quality standards that are regulatory

hope they 'll improve the tribe s' water quality standards and the states' water quality

standards, which you probably will once you've finalized some of the

– like the minimum requirements and all that you're trying to putPage 32
in there which will be put in Iguess in the proposed rule so we 'll be able to reall y look at the meat and potatoes of this. Fred Leutner : Yes, exactly

. Scott Bulgrin : Yes, but my question is, there are over 560

- something tribes that are recognized b y the Department of Interior that have the potential to have

– t o protect their waters through water qualit y standards, and currently there are only 36 tribes with water quality standards in the nation. And my question is what are EPA's plans for trying to deal with these other tribes in protecting their waters, espec ially

if they feel that approved water qualit y standards aren't the answer? And it seems to me that over the ye ars that

– what, it's been 1983

– that only

36 tribes have got the water qualit y standards that we (inaudible) look at other

– you know some oth er methods. Fred Leutner : Yes, that's a very good question and an observation that we get and we are concerned about it here as well. There are several answers to that. First of all, the ability

for tribes to get standards actually began in 1987 when C ongress passed it. So just to correct the record a little bit there, we've been successful in approving 45 tribes to get TAS, and of those, 35 have adopted water qualit y standards to date, and we've also promulgated standards for the Colville reservation. So that makes the 36 that yo u're talking about. So Ithink we all recognize that that falls far short of 562. These

– the tribes that do have TAS are somewhere on the order of like 45 percent of all the tribal land area in the country . So I think we' re picking up some of the larger tribes, but that sure leaves a lot of the smaller ones that don't have standards. This is an issue that we continue to explore. Most recentl y, the National Tribal Water Council has raised that to people here in the Off

ice of Water to consider, and we continue to look at that. In the meantime, we are doing every thing we can to make the TAS process as viable as possible. The tribes that Italked to say that they really like the idea of retaining their sovereignty and having it recognized through TAS because it allows them to use their inherent regulatory authority . And so we certainly honor that and want to keep trying to find way s to make it work.Page 33

At the other end of the spectrum, there are some tribes, such as the Alaskan Native Villages, that actually by the evolution of federal law cannot

– they don't have reservations, and therefore we can't do much within the construct of Section 518 of the Clean Water Act to get them to have standards. So we're looking at cre ative way s, we're alway s looking for ideas. And if people have those ideas, we would be most delighted to hear how to go about meeting those needs and honoring the tribes that want to protect their water quality through standards. Operator : So do we mo ve on to our question? Fred Leutner : OK. Operator : Our next question is from the line of Eric Morris. Eric Morris : Yes, hello. This is Eric Morris from the native village of White Mountain.

We are one those villages in Alaska. We rel y on the state o f Alaska, which is mostly fine, but we are interesting in the antidegradation policy because we do have high water quality . But, of course, the antidegradation policy allows this state to lower water quality for economic and social development if they fin d it necessary , which is also a good out for every one concerned, but we do have two comments that we would like to put forward to perhaps strengthen antidegradation of our waters. And one is that an y implementation methods have a requirement to identif y and define baseline water quality conditions over a period of multiple y ears. And secondl y, we would like to suggest that the term aquatic invertebrates is added to the propagation of fish, shellfish, and wildlife clause so that they are specificall y in cluded since they 're such a good indicator of high water quality and health y water s ys tems and waterbodies. So those are our comments. Fred Leutner : Great, those are excellent comments, and I'm going to

– we'll just add that to

our list of things to cons ider as we help develop our proposal. Thank you for that.Page 34

Operator : And again, if you would like to ask a question or make a comment, you may

do so by pressing star one now. Again, to ask a question or make a comment, yo u should press star one now. And our next question comes from the line of Eric Rich. Eric Rich : Yes, just quickly on the administrator's determination, a couple of things you were talking about, the ability for the U.S. EPA to basically set standards for tribes. As I understand it, the issues of core water quality standards for Indian country has kind of (disappear), but do these changes, or in Item B, does this

– is this the ability

for U.S. EPA to do something similar to the core water quality standards where they

felt the tribes' waters were not protected or they needed protected

– protection? Excuse me. Fred Leutner : Yes, you're very perceptive. That Section 303(c)(4)(B) of the Clean Water

Act was the authority

that we used to develop that proposal. As people know, that propos al was developed and signed b y outgoing A dministrator Carol Browner, but was never published in the Federal Registry . It was pulled back by the next administration. And since then no action has been taken on it. But y es, that is the section that we're t alking about. If that

– if our revision had gone into place, that is the particular kind of determination [we are discussing in this briefing. It was alread y being made by the A dministrator and it did self

- identify itself as a determination. So it woul d not have been affected b y this regulation change. What we're trying to address is the confusion that arises sometimes when people look at a letter signed b y someone in authority at EPA that say s
– that say s something negative about a state's standards, and some court decides that that is in fact a determination. Even though those standards might be fully acceptable with the EPA, there just may

not be as good as we wanted them to be. So that's sort of a long answer to your question. But y es, it's the same provision, and if our revision had gone into place 15 y ears ago, it would not have had an y
– it would not have changed in an y way what Carol Browner did when she signed that proposal. Eric Rich : OK, thank you.Page 35

Operator : And there are no further ques tions in queue at this time. Evely n Washington : OK, I guess we're read y t o close out, and I want to thank every body for participating with us on the call today , and we'll take back y our questions and comments and additional information as we develop this rulemaking . The insights and the information that you've given us today has been valuable, so I want to thank y ou for that. In addition to the questions and views that you gave us alread y, if additional questions or comments or thoughts come to mind abo ut this regulation that we're looking at, there are three way s that y ou can get those comments to us. And on slide 19 we've provided information about getting written comments to us. The first is, in terms of participating on additional calls, we have t wo public listening sessions that are coming up next week. The first is Tuesday , August 24th, and the second is Thursday , August 26, and the information about those calls is on the Web site so y ou can participate on those calls. The second is yo u can communicate with us by sending us e

- mail and the inf ormation is shown on slide 19. And if y ou don't have that

– those slides in front of y ou, y ou can download them again from the Web site to get that information. But for those who don't have it right in fr ont of them let me give you the e

- mail address to send your written comments and that's [SHPD comments@epa.gov ] . And the third way , yo u can send us a letter to the address that's shown on slide 19. For an y written comments that you want to send us, it would be helpful if we could get those within the next two weeks or b y September 3rd. That way when we have our meetings with senior managers we can refer to issues that folks have raised to us in the listening sessions that we're having. So with that , Ialso want to refer people back to slide 17. It' s a slide that we included in the package here where you can get additional information about the rulemaking , about the listening sessions, and about water qualit y standards in general. Since an y comment s that we're getting in these listening sessionsPage 36
are part of our earl y process in developing rulemaking s, we're not going to be responding in writing to views and information that we've heard, but we are documenting this input and it's going to be part of the public record in the proposal that we issue next summer. So, again, thank you for your participation and this concludes the call. Operator : This does conclude today's conference call. You may now disconnect. END