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ASIWPCA call

December 15, 2010

2:00 pm – 3:30 pm (ET)

EPA participants: Shari Barash, Manjali Vlcan, Grace Robiou, Christina Christensen, Fred 

Leutner

Q6: One idea that could makes variances appealing to some people would be for the 

regulation to require that progress be made towards meeting WQS during the period of the 

variance. If progress milestones were required as part of the variance implementation, do 

you think your public would find variances more appealing or less appealing?

 ID: have such a requirement; doesn’t make a difference

 VA: Get grief from enviros re: variances, thinks this could help

 NY: have such a requirement; for states w/o variances, thinks this would make them 

more appealing

 CA: would help make variances more appealing; great idea

 OR: this is central to OR’s revisions to variances; critical; OR recognizes progress may

not be significant but could still be beneficial. They call this “pollutant reduction plans”.

 ID: we put these things in variances (our state doesn’t have primacy)

 OR: gets confusing when we talk about the permittee not being able to attain the use; 

should say the permittee cannot attain the WQS.

 OK: need clarity in terms – variance to WQS vs. variance to use and/or criteria.

Q7: We understand a few States have not classified all of their waters and have heard it 

could be beneficial to have EPA specify that all waters must be designated to protect 

101(a)(2) goal uses unless demonstrated to be unattainable through a UAA. How would 

this affect the way your state is administrating its standards? Would it be helpful in dealing 

with an adjacent state that might not have adopted standards for shared waters?

 NY: all waters classified, but could see benefits to states w/unclassified waters

 CO: all waters classified that can be classified (e.g., ditches not classified)

 CA: all waters classified that can be classified

 ID: all waters should be classified, but they do have some unclassified waters; however, 

these waters have a “default” level of 101(a) protection assigned. Noted that they don’t 

need to go through a UAA process to designate their waters.

Q8: After removing a 101(a)(2) use through a UAA, does your State generally identify the 

appropriate designated use to replace the unattainable use? And if so, how?

 CA: they would replace unattainable use w/another use or create a new use thru a subcategory

 NY: waters don’t have a single “best” use – if remove one use, other uses remain in 

place. If NY removes a Class C/fishing use, would leave another use (e.g., fish survival) 

in its place.
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 CO: some situations below abandoned mines where use has been removed all together 

(with nothing designated in its place, but did go through some sort of analysis to do this); 

in other cases, adopt SSC.

 OK: thinks that a trend towards requiring a full UAA, when only the criterion is 

changing, is worrisome (OST clarified this is not our intent).

Q9: If EPA were to require the “highest attainable use” be adopted in place of the 

unattainable use, how would this change your State’s day-to-day practices?

 CO: devil in details. How would different Regions interpret this? What is the “showing” 

that would have to be made? This scares her – prefers we not require this – doesn’t think 

CO is doing anything wrong currently.

 AK: sounds like additional work – what is the benefit of this?

 ID: thinks this is very problematic. Idaho doesn’t view subcategories of uses as being 

“better” than another subcategory.

 OK: concept is problematic with effluent dominated streams.

 ID: attempted UAA where a seasonal coldwater aquatic life use was more appropriate. 

UAA was disapproved.

 PA: How does this differ from existing use protection?

 ME: confusing concept b/c highest attainable use could be higher than 101(a) use.

 OR: devil is in details. How deep would analysis go in terms of figuring out HAU? In 

establishing HAU – implicit requirement to determine pollutant concentration? How is 

this constructed? Thinks it could require a disproportionate amount of effort for a use 

change.

 CA: agree with OR. Must be carefully defined. Relationship between existing use and 

HAU. Challenge is coming up with a new criteria.

Q10: We are considering requiring in regulation that States provide documentation or 

conduct an evaluation in order to remove a non 101(a)(2) use, such as a public water supply 

use. We expect this would help level the playing field, where today some states are being asked 

to conduct full UAAs for removing such uses, while others are given more discretion. Such an 

evaluation would not be based on attainability. How would this impact your current 

practice?

 NY: would not impact NY. They don’t distinguish between removing 101(a) and 303(c) 

uses. Always require UAA.

 CO: Devil in details. Always make an adequate showing when they remove a use. Will 

be burdensome for some states.

 EPA pointed out that this requirement would likely lower the bar for some states.

Q11 and Q12: Can you share with us how your State ensures your public is involved in a 

Triennial Review? We are considering requiring that States and Tribes take public 

comment on the scope of the Triennial Review. At what point in your review process do 

you involve your public and how would this change affect your process?
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 AK: They public notice ideas for revisions, involve tribes early.

 PA: Have public notification process; share with Advisory Council through a public 

meeting. Suggest the scope at the Advisory Council but don’t take comments on the 

scope.

 OK: Seems like “solution looking for a problem.”

 ??: States do this; EPA should not do this.

 AK: It is policy (not regulation) to check in with public on scope of triennial review.

 VA: as one triennial review concludes, state receives comments on the scope of the next 

review (Shari pointed out that VA is meeting our new requirement).

 OR: Hate to see any additional focus on triennial review process – just adding 

opportunities to be litigated on.

 CA: they do what we are asking – solicit things to be covered in triennial review, then 

prioritize the list.

 NY: Extensive public outreach requirements, but do not have a requirement to involve 

public in the scope. Could this be an unfunded mandate issue. If EPA moves forward, 

talk with states.

 NJ: have done this informally via email.

 ??: agrees with OR. Capacity issue. Might make sense if triennial review were more like 

5 or 10 years.

Q13: We are considering clarifying that, in order to constitute an Administrator’s 

Determination, a document must be signed by the Administrator and contain a statement 

that the document is a determination under 303(c)(4)(B). We think this will allow EPA to 

provide States and Tribes with standards advice and recommendations in writing, without 

a concern that such letters will be construed as a determination. How will this affect your 

State’s current practices?

 OK: won’t change practices at state level; may improve interactions with Regions.

 OR: if objective is to “free the pen” – could be helpful.

 ??: Probably helpful where states need guidance on particular issue.

 NY: good idea.