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March 1 7 , 2011

Ephraim King

Director

Office of Science and Technology

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

Via e

- mail to: king.ephraim@epa.gov

RE: Regulatory Change Considerations to 40 CFR Part 131, WQS

EPA

- HQ

- OW

- 2010

- 0606; FRL

- 9182

- 1

Dear Mr. King:

The Association of State and Interstate Water Pollution Control Administrators (ASIWPC A ) would like to offer the following comments and observations regarding the water quality standards (WQS) regulatory

ch anges under consideration by the U.S. Environmental Protection Agency (EPA). According to the Agency’s announced schedule, following the current outreach and consultation phase EPA will propose a rule in summer 2011. Given this ambitious schedule, we encourage continued communication with

states and urge EPA to conduct workshops in advance of proposing regulatory changes. The Agency’s participation in ASIWP C A’s Monitoring, Standards and Assessment Task Force calls with the states in

November and December 2010 and February 2011 afforded us to learn more about EPA’s intent and timeline. However, these conversations have identified several key issues that need attention as early in the process as possible.

The Clean Water A ct (CWA) clearly direct s primacy for the establish ment of water quality standards (WQS) and the periodic review of those standards to state environmental agencies. 1 The Act does give EPA authority to approve or disapprove the standards the states develop, but it does not give EPA the authority to approve or disapprove of the process states use to review and develop those standards. 2
EPA must recognize that state s have different geophysical factors to consider when establishing WQS

, as well as varying legal and political factors to consider.

With this context, ASIWPCA offers the following input to assist the Agency as it plan s changes to the
WQS development and review process.

I. Triennial Reviews

EPA has outlined two changes under consideration : 1) requiring states to solicit and consider public input on the scope of triennial reviews and 2) requiring states to evaluate whether criteria

1 CWA section 303(c)(1) requires that states review their standards at least once every three years.

2 CWA section 303(c)(3) establishes timelines for EPA review and approval or disapproval of new or revised standards.ASIWPCA Input to EPA on WQS Regulatory Changes

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- 0605 • WWW.ASIWPCA.ORG are still protective of uses, taking into consideration any new information. ASIWPCA quest ion s EPA’s authority to make these changes. CWA Section 303 (c)(1) requires the Governor of a state, or the state water pollution control agency, to hold triennial reviews and make the results

available to EPA. 3 There is no provision directing EPA to estab lish the framework for a state triennial review, nor is there a provision for EPA to perform the review in lieu of the states, even if

the sta te does not perform the review. In addition, while ASIWPCA supports EPA’s goal of increasing public transparency for the tr iennial r eview process, states do not support prescriptive requirements for public involvement

.

II. Antidegradation Implementation Measures

St ates generally do not support requiring the adoption of antidegradation implementation requirements in state WQS . States have a variety of ways of providing implementation instruction to regulated entities

– such as continuous planning process documents, NPDES regulations, and stand alone guidance documents. Requiring such procedures to be adopted as part of state WQS may completely change how implementation would be handled. For example , most states have to adopt WQS into state regulations. The rulemaking process can be time consuming and

contentious. A ntidegradation implementation is more akin to guidance than regulation. Prior to imposing new antidegradation requirements that may interfere with sound existing practices,

ASIWPCA recommends that EPA thoroughly evaluate current state statutes, rules

, and policies

for evidence of effective actions that fulfill the CWA’s intent to prevent the degradation of high quality waters. If, after such an evaluation, EPA believes that states are not appropriately implementing their antidegradation policies, ASIWPCA e ncourage s the Agency to work with specific states

, rather than pursuing rulemaking that will unnecessarily complicate or stall the majority of state s with proven and effective antidegradation programs. In addition, a regulation change mandating the inclus ion of antidegradation implementation in state WQS, without guidance or confines on what EPA R egion s can ask of states in the process , will lead to uneven applicatio n of the antidegradation rule.

EPA has stated that antidegradation is not implemented we ll across the country. Some states will be making significant investment in their antidegradation policies as a result of EPA’s rulemaking. Before antidegradation implementation is codified in regulation, we recommend states be given time to pilot their implementation procedure s though policy and guidance, allowing refinement and flexibility that cannot be found in regulation. ASIWPCA also recommends EPA conduct a comprehensive inventory of state efforts to identify the most successful antidegradation so lutions

.

EPA is considering other regulatory changes related to activities associated with WQS implementation

. The states appreciate a clear and predictable process to utilize the available tools, like variances and use attainability analyses (UAAs), which address situations where strict WQS application is impractical. However, it is important to retain flexibility to allow for the creative application of this limited set of tools.

III. Variances

ASIWPCA urges EPA to offer more specificity regarding its plans for variances to go through a more public process. EPA may be considering details such a s what can and cannot be considered a variance, singular methods for adopting variances, and/or what criteria must be

included to dete rmine the adequacy of a variance

. Prescribing detail in r egulation on these topics

could preclude states’ use of new and innovative approaches that were not considered when the regulation was developed. We request any variance regulation maintain sufficient flexibility to

allo w for innovative, streamlined variance processes. We support the concept of establishing

3 Neither the Clean Water Act nor EPA regulations explicitly define what constitutes a triennial review. According to Section 3 03(c)(1) of the Act, states are required once every three years to hold public hearings for the purpose of rev iewing applicable water quality standards, and, as appropriate, modifying and adopting standards. Results of the review should be made available to EPA.ASIWPCA Input to EPA on WQS Regulatory Changes

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- 0605 • WWW.ASIWPCA.ORG milestones in a variance to show progress towards meeting a WQS, but are concerned that, if not communicated correctly, such milestones may create unreasonable expectations that cannot be

a chieved within the permit term. It is important to note that states believe that variances should be reviewed subsequent to permit renewals.

IV. Designated Uses

We recommend additional conversation with states on the issue of “highest attainable use.”

EPA’s plans assume that states have tiers or subsets within each broad use categor y, which is

not always the case. For instance, many states have a singular recreation use. If that use is

removed via a UAA, there is no “next highest” recreation use. Similarly, states with only warm water fisheries may only have a singular aquatic life use. If EPA desires states to d evelop subsets of all uses so a “next highest use” is available, this is a time and labor intensiv e cost which should be explored before EPA makes a proposal to this end.

V. Administrator’s Determination

States support EPA clarifying what constitutes the Administrator’s determination. Such

clarification is best made via a definitional amendment.

VI. Updates To Reflect Court Decisions 4

 Definition of WQS

– ASIWPCA recommends significant discussion on what EPA will define as a WQS and the ramifications of that determination. For instance, defining “implementation

documents” as WQS would usurp t he issue discussed above regarding whether antidegradation implementation should be considered a mandatory WQS

. Again, we believe requiring EPA approval of WQS implementation guidance is cumbersome, unnecessary, and will not further the CWA’s purposes.

 Authorization of Compliance Schedules

– I f EPA plans only to clarify that WQS must contain a provision allowing for the use of compliance schedules then, States are not concerned . If EPA plans to go into more detail, such as what such schedules should look like, ASIW PCA recommends further discussion with the states on the contemplated changes.

 State Submission of Public Participation Records

– States typically submit response to commen t documents to EPA, which we believe is sufficient.

ASWPCA is p leased to facilitate EPA’s outreach to states on these important WQS issues. States

possess a wealth of experience on WQS development and implementation. We support improved

clarifications that enhance water quality protection programs. However, many of the changes EPA is contemplating States believe are unnecessary and will lead to a significantly increased state workload without additional resources. If EPA is unable to meaningfully consult with states in advance of proposing a rule in summer 2011, ASI WPCA recommends EPA delay its planned proposal date.

ASIWPCA appreciate s the Agency’s consideration of these issues and look s forward to its response.

4 (Definition of Water Quality Standards) Florida Public Interest Research Group Citizen Lobby, Inc., S ave our Suwannee, Inc., et al. v. EPA, et al., 386 F.3d 1070 (11th Cir. 2004) concerning Florida's Impaired Water Rule (IWR). (Authorization of Compliance Schedules) See In the Matter of Star

- Kist Caribe, Inc., 1990 WL 324290 (EPA), 3 EAD 172 (April 16, 1 990). (State Submission of Public Participation Records) City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996).ASIWPCA Input to EPA on WQS Regulatory Changes

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Walt Baker Director, Utah Division of Water Quality

ASIWPCA President

cc: Derek Smithee (Chief, Oklahoma Water Resources Board ), Co

- Chair, ASIWPCA Monitoring,

Standards & Assessment Task Force Martha Clark Mettler (Chief, Indiana Department of Environmental Management ), Co

- Chair, ASIWPCA Monitoring, Standards & Assessment Task Force Thomas J. Gardner, Office of Science and Technology, EPA