1221 CONNECTICUT AVENUE, N.W, 2ND FLOOR • WASHINGTON, DC 20036 • TEL: 202-756-0600 • FAX: 202-756-0605 • WWW.ASIWPCA.ORG

March 17, 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 (ASIWPCA) would like to 

offer the following comments and observations regarding the water quality standards (WQS) regulatory 

changes 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 ASIWPCA’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 Act (CWA) clearly directs primacy for the establishment 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 states 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 plans 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.
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are still protective of uses, taking into consideration any new information. ASIWPCA questions

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 establish 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 state does not perform the review. In addition, while ASIWPCA supports EPA’s goal of 

increasing public transparency for the triennial review process, states do not support prescriptive 

requirements for public involvement.

II. Antidegradation Implementation Measures

States 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. Antidegradation 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 encourages the Agency to work with 

specific states, rather than pursuing rulemaking that will unnecessarily complicate or stall the 

majority of states with proven and effective antidegradation programs. In addition, a regulation 

change mandating the inclusion of antidegradation implementation in state WQS, without 

guidance or confines on what EPA Regions can ask of states in the process, will lead to uneven 

application of the antidegradation rule. 

EPA has stated that antidegradation is not implemented well 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 procedures 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 solutions.

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 as what can and cannot be 

considered a variance, singular methods for adopting variances, and/or what criteria must be 

included to determine the adequacy of a variance. Prescribing detail in regulation 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 

allow 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 303(c)(1) of the Act, 

states are required once every three years to hold public hearings for the purpose of reviewing applicable water quality standards, and, as 

appropriate, modifying and adopting standards. Results of the review should be made available to EPA.
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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 

achieved 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 category, 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 develop 

subsets of all uses so a “next highest use” is available, this is a time and labor intensive 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 Decisions4

 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 the 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 –If 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, ASIWPCA 

recommends further discussion with the states on the contemplated changes. 

 State Submission of Public Participation Records – States typically submit response to comment 

documents to EPA, which we believe is sufficient.

ASWPCA is pleased 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, ASIWPCA recommends EPA delay its planned proposal date. 

ASIWPCA appreciates the Agency’s consideration of these issues and looks forward to its response.

 

4

(Definition of Water Quality Standards) Florida Public Interest Research Group Citizen Lobby, Inc., Save 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, 1990).

(State Submission of Public Participation Records) City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996). 
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1221 CONNECTICUT AVENUE, N.W, 2ND FLOOR • WASHINGTON, DC 20036 • TEL: 202-756-0600 • FAX: 202-756-0605 • WWW.ASIWPCA.ORG

Sincerely,

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