EPA 

Moderator: Grace Robiou 

08-26-10/12:00 a.m. CT 

Confirmation # 90716138 

Page 1 

EPA 

Public Session: Water Quality Standards Regulatory Changes 

Moderator: Grace Robiou 

August 26, 2010 

1:00 p.m. EDT

Operator: Good afternoon. My name is Jessica, and I'll be your conference Operator 

today. 

At this time, I would like to welcome everyone to the water quality standards 

regulatory changes conference call. All lines have been placed on mute to 

prevent any background noise. After the speakers' remarks, there will be a 

question-and-answer session. If you'd like to ask a question during this time, 

simply press star, then the number 1 on your telephone keypad. If you'd like 

to withdraw your question, press the pound key. As a reminder, today's 

conference is being recorded. 

I would now like to turn the call over to Grace Robiou. 

You may begin your conference. 

Grace Robiou: Good afternoon. My name is Grace Robiou, and I'm located in EPA 

headquarters in Washington, DC. I want to welcome you to this listening 

session for the general public on EPA's proposed rulemaking to revise the 

water quality standards regulation. 

We are at an early stage in this effort, and that's why we're holding these 

opportunities to gather your ideas. What we hear from you today is going to 

help us in formulating our proposal. There will be, however, other 

opportunities next year for more formal comments after we publish the details 

of our proposal in the Federal Register. 
EPA 

Moderator: Grace Robiou 

08-26-10/12:00 a.m. CT 

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As you'll learn in a few minutes, we've been taking a close look at EPA's 

regulation, which governs water quality standards, to see if we can improve its 

effectiveness in helping restore and maintain the integrity of the nation's 

waters. We have come up with a targeted set of changes to the regulation, and 

these were outlined in the Federal Register notice that announced these 

listening sessions. This is the start of the rulemaking efforts that will result in 

a proposal in the Federal Register next summer. 

For the next 20 minutes, we'll be using the briefing document that was posted 

on the website to describe our thinking. If you have that briefing in front of 

you, we will (inaudible) through it slide-by-slide, and we're currently on slide 

number 1. If you don't have the briefing that's also OK. We will cover the 

important points verbally, and then you can turn to the slides on our website 

for future reference. 

I'm now turning to slide number two. The main purpose of today is to solicit 

your views on the specific provisions that we're considering for this 

rulemaking. We will be providing a short overview of our proposal and why 

we think changes in the regulation might be appropriate, but we really want to 

spend most of the call getting your feedback. 

On slide number three, we present our schedule. As you can see, we are in the 

early stages of the rulemaking. We haven't made any final decisions on the 

contents of the proposal. Those decisions will be made after this call, as well 

as some other ones that we are having with states and tribes. And after we 

publish our proposed rule in the summer of next year, there will be a formal 

60-day public comment period. 

Now I'm going to turn to Christina Christensen to give you more information 

on the proposal. 

Christina Christensen: Thank you, Grace. 

Slide four provides an outline of what I will be discussing today, and I'll begin 

with some background on what water quality standards are and why we're 

considering revising our national water quality standards regulations. I'll then 
EPA 

Moderator: Grace Robiou 

08-26-10/12:00 a.m. CT 

Confirmation # 90716138 

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give some more detail about each of the six areas we are considering for 

revision, which are listed on this slide. 

So turning to slide number five, what are water quality standards? Under the 

Clean Water Act, water quality standards are provisions of state, tribal, or 

federal law approved by EPA that describe the desired condition of a 

waterbody or the level of protection. Standards are the foundation for other 

programs of the Act, such as discharge permits that impose enforceable water 

quality-based controls. Standards consist of three major components: 

designated uses, water quality criteria, and antidegradation policies, and can 

include optional general policies such as variances and mixing zones. 

Slide number six shows that the Clean Water Act gives states and authorized 

tribes the primary role to set standards. Authorized tribes are federally 

recognized Indian tribes that EPA found eligible to run standards programs. 

This is known as treatment in a manner similar to states, or TAS. As of today, 

45 tribes have been approved for TAS. 

The Clean Water Act requires states and tribes to review their standards every 

three years. If they decide new or revised standards are needed, they must 

adopt these amendments and submit them to EPA for review. The Clean 

Water Act calls on EPA to review and approve standards within 60 days of 

submission or disapprove within 90 days. If EPA approves the standards, they 

can then be used for all purposes under the Clean Water Act, such as setting 

permit limits or developing total maximum daily loads. The Clean Water Act 

also authorizes the EPA Administrator to determine that federal water quality 

standards are needed to replace or augment state and tribal standards and to 

promulgate them as binding standards. 

Now let's consider the national standards regulation on slide number seven. 

The regulation simply adds detail to what the Clean Water Act says on 

designated uses of water quality criteria and antidegradation. It requires states 

and tribes to engage the public before revising their standards, and it specifies 

the roles of states, tribes, and EPA for administering standards. 
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We're now on slide number eight. So why is EPA considering revising this 

regulation? Well, the main parts of EPA's regulation have been in place since 

1983. They provided a solid foundation for controlling water quality, but 

there are some practical reasons for initiating this rulemaking. As we've 

implemented this 1983 regulation, some important issues have come up again 

and again that the regulation does not explicitly address. This can waste time 

and resources, and we'd like to try and improve that situation. 

Slide number nine lists some of the work we did before settling on specific 

areas we'd like to improve. In 2008, EPA developed a list of over 40 potential 

regulatory revisions that might help provide clarity and national consistency 

and leads to environmental improvements. In developing this list, we 

considered recurring policy issues as well as case law from the past 25 years. 

We also reviewed our 1998 advanced notice of proposed rulemaking and 

considered the comments that we received on it. 

In addition, we've held preliminary consultations with several state water 

quality standards managers and consulted with EPA regional experts to get a 

sense of where regulatory revisions were most needed. To narrow the field of 

over 40 potential revisions, EPA managers also considered how well the 

current regulation addresses recurring issues, whether it's equipped to handle 

emerging issues, and whether sufficient flexibility is provided to states and 

tribes when needed. Based on our review, we've narrowed our focus to six 

specific areas, and I will walk through each of them in sequence. 

OK, turning to slide number 10, you see a list of the six targeted areas where 

we're considering revisions. Once I'm done going through these areas, we'll 

be asking you for your views. You might want to make a note of any 

comments you have as we go along and save them for the feedback part of 

this conference call. And, of course, we welcome any of your views that 

support our ideas, but we're also interested in hearing your views on any 

possible unintended consequences of changing the regulation in a specific 

area. We also welcome any specific suggestions for changes that you do or do 

not wish to see in this proposal. 
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08-26-10/12:00 a.m. CT 

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Now let's turn to slide number11 on antidegradation. The current regulations 

set the national policy of protecting existing uses and preventing the lowering 

of high water quality and what's necessary to accommodate important 

economic or social development. The regulation also specifies that states and 

authorized tribes must adopt specific antidegradation policies. Also, some 

tribes have adopted policies in accordance with the regulation, and we do not 

see a need to change this. We are concerned, however, about implementation 

of these policies. 

Although many states have done a good job of implementation, some states 

have not even identified antidegradation implementation methods despite the 

regulation's requirement to do so. We recognize that the current regulation 

does not specify what the implementation methods must include, but only 

requires them to be consistent with the antidegradation policy. So as possible 

changes, EPA is considering modifying the regulation to specify that 

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 a state or tribal 

standard. As an example, a minimum element could be a state or tribe's 

process for identifying high quality waters. 

EPA is also considering requiring that antidegradation implementation 

methods be adopted into state and tribal water quality standards rather than 

simply being identified. The methods would thus be subject to EPA for 

review and approval. Our current thinking is that these changes will bring 

more consistent application, clarity, and transparency to the protection of high 

quality waters. Further, EPA's oversight role would be more clearly defined. 

Our next area on slide 12 concerns the discretionary determination the EPA 

Administrator can make that a revised or new standard is necessary to meet 

the requirements of the Act. This provision is in Section 301(c)(4)(b) of the 

Act. If such a determination is made, EPA must promptly propose a federal 

standard and promulgate a standard within 90 days of proposal. 

Over the years, there have been recurring instances of confusion or 

misunderstanding about what actually constitutes an EPA Administrator's 
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determination. So, for example, in some cases, EPA staff have sent routine 

letters suggesting priorities for states to consider when revising their water 

quality standards. Some courts have construed these types of communications 

to states as official EPA Administrator determination that oblige EPA to 

promulgate water quality standards. 

So EPA is considering clarifying in the water quality standards regulation that 

an [EPA] Administrator's determination must be signed by the Administrator 

or someone he or she specifically authorizes, and must include a statement 

that the document constitutes a determination under Section 301(c)(4)(b) of 

the Clean Water Act. EPA's current thinking is that this type of change could 

ensure that it is clear when EPA has or has not made one of these 

determinations, and this kind of change would also allow EPA to continue to 

provide routine written suggestions to states and tribes without triggering the 

need for immediate federal action. 

On slide 13, we turn to the topic of designated uses. Section 101(a)(2) of the 

Act establishes a national goal that wherever attainable water quality must 

provide for the protection and propagation of fish, shellfish, and wildlife, and 

recreation in and on the water. And if a state or tribe wants to remove one of 

these goal uses, the regulation requires it demonstrate that attaining the 

designated use is not feasible for one of six specific factors. They must also 

submit a use attainability analysis, a structured scientific assessment of factors 

affecting attainment of designated uses. 

The regulation does not, however, specify which uses, if any, must be adopted 

to replace the use that is being removed. Furthermore, EPA's longstanding 

interpretation of the Act and regulation is that Section 101(a)(2) uses are 

attainable unless a state or tribe demonstrates otherwise. This interpretation is 

central to our water quality standards' program, however, it's not articulated 

explicitly in the regulation. So EPA's 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've 

conducted a use attainability analysis to support a lesser designated use and 
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08-26-10/12:00 a.m. CT 

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EPA's approved that action. EPA's also considering clarifying that the highest 

attainable uses closest to the 101(a)(2) goal must be adopted if such a goal 

itself is non-attainable. 

OK, on slide 14, we'll discuss variances or temporary changes to water quality 

standards. Our current regulation allows states and authorized tribes to adopt 

variances as general policies for applying and implementing their water 

quality standards. This is specified in Section 131.13 of the regulation. We 

would retain the state and tribal discretions, but the current regulation does not 

provide any specificity on how to use variances. 

As a result, there is a lack of clarity on the proper use of variances. 

Furthermore, variances may often be repeatedly renewed without achieving 

environmental improvements in a waterbody. So EPA's considering 

establishing explicit provisions to guide the use of variances. So, for example, 

EPA's considering a provision that requires all variances to have an expiration 

date. Such a change could provide regulatory clarity on what is an acceptable 

variance versus what is not. 

Slide number 15 addresses the reviews required every three years by the Clean 

Water Act or triennial reviews. The current regulation does not call for 

involving the public when states and tribes determine what they will focus on 

in their reviews. This can have the effect of narrowing public input to those 

portions of standards that the state or tribe chooses to review. A second 

concern is that despite the availability of new scientific information, some 

states or tribes may not consider it in a timely fashion, and thus may not 

always evaluate whether their current criteria continue to protect their 

designated uses. 

EPA is considering revising its requirements to specify that states and 

authorized tribes must solicit and consider public comments in determining 

the scope of each triennial review. EPA is also considering establishing a new 

triennial requirement that states and authorized 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. 
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08-26-10/12:00 a.m. CT 

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This will clarify that states and tribes will need to consider EPA's most recent 

national recommended water quality criteria published under Section 304(a). 

EPA's current thinking is that these changes will increase transparency by 

ensuring that stakeholders have input on a scope of triennial reviews. 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 uses. 

Slide number 16 refers to three court decisions handed down since the 

regulation was last revised. The complete legal citations for these cases are in 

EPA's Federal Register notice. EPA is considering codifying the results of 

these decisions in the regulation. 

First, EPA's considering revising the definition of water quality standards that 

currently 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 have the effect of changing water quality standards 

without EPA approval. The court decision and EPA's response to it more 

clearly define which kinds of provisions actually constitute water quality 

standards requiring EPA review. 

Second, EPA's considering specifying that provisions which authorize 

compliance schedules are considered water quality standards, and therefore 

must be submitted to EPA for review and approval. Compliance schedules 

govern the timing of water-quality-based affluent limits in NPDES permits. 

 This change would codify the results of a 1990 environmental appeals 

board decision involving Star-Kist Caribe Incorporated. Note that while 

authorizing provisions would be considered water quality standards, 

compliance schedules themselves are not. They are permitting provisions. 

Third, EPA's considering clarifying that states and authorized tribes must 

submit to EPA records of public participation that has occurred in reviewing 

and adopting standards. These records would include public comments and 

the state or tribe's responses to the comments. This change would codify the 

results in a 1996 decision involving standards affecting the City of 
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Albuquerque. Codifying these three positions and regulation will really help 

eliminate confusion could minimize future litigation on these topics. 

This concludes our presentation of the proposal EPA is developing. Slide 

number 17 gives you several EPA websites for more information. They 

provide more information about these listening sessions and also about water 

quality standards in general. They also show you 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 you express here today. 

Please note again that these are just listening sessions at a very early stage in 

the rulemaking process. There will still be a formal 60-day public comment 

period after the proposed rule is published in the summer of 2011. 

Thank you all for your attention, and I'll now turn the presentation back to 

Grace Robiou. 

Grace Robiou: Thank you. 

We're going to now turn to the feedback part of the session. First, we're going 

to answer any clarifying questions that you may have about anything that you 

heard so far. We're going to dedicate between 15 and 20 minutes to 

answering those kinds of questions, and then we're going to turn to answering 

any or taking comments or views on the specific regulatory revisions that 

we're considering. 

We're going to be relying on the Operator to help us through this process, so 

I'm now going to turn it to the Operator to start that feedback session. 

Operator: At this time, I'd like to remind everyone, in order to ask a question, press star, 

then the number 1 on your telephone keypad. We'll pause for just a moment 

to compile the Q&A roster. 

Grace Robiou: Operator; are you there? 

Operator: Yes, your first question comes from Arthur Wolff, Friends of Shelby. 

Arthur Wolff: Hello? Hello? 
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Grace Robiou: Yes, yes, you're on. 

Arthur Wolff: I have a general question I think would be instructive to everybody listening 

or at least to me. When we talk about the Clean Water Act, does that also 

include and incorporate the regulations of the Safe Drinking Water Act? Are 

both of those involved in this discussion? 

Christina Christensen: No. Today, we are specifically talking about the Clean Water Act and 

particularly Section 131, which is the water quality standards regulation. 

Arthur Wolff: So there's no study being done on the Safe Drinking Water Act, and your 

study has nothing to do with that. Is that correct? 

Christina Christensen: Yes, that's correct. 

Arthur Wolff: All right. What if I have a situation of – at the same time there's a problem 

that is affecting both of these, the Safe Drinking Water Act and the Clean 

Water Act, as I understand it. You know who do I address that problem to? 

I'm sure they're both EPA, but whom specifically should I call on? 

We have a problem where there's some runoff that is contaminating a river 

and is contaminating our aqua that provides a wonderful drinking water. The 

same project is doing both. How would you recommend that I address that, or 

to whom would you ... 

Grace Robiou: Yes, I suggest, sir, that you e-mail us at the shpdcomment@epa.gov address 

that appears on the last slide of these presentation and we'll be happy to refer 

you to somebody in the drinking water program who may be able to help you. 

Arthur Wolff: Oh, that'll be in the last part of this program? 

Grace Robiou: Yes, on the very last slide there is an e-mail address where you may send 

comments. You can send us a question there, and we will refer it on or get 

back to you. 

Arthur Wolff: OK, I haven't been able to pull that up. Could you please give me that e-mail 

address now quickly? 
EPA 

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Grace Robiou: Sure. I'll do it quickly and then we'll move on. It's shpd – S-H-P-D ... 

Arthur Wolff: Please say it again. 

Grace Robiou: S as in Sam, H as in Harriett, P as in... 

 

Arthur Wolff: S as in Sam ... 

Grace Robiou: ...shpdcomment – one word... 

Arthur Wolff: SAPD? 

Grace Robiou: SH. . . 

Arthur Wolff: SH like in Harry? 

Grace Robiou: Yes. 

Arthur Wolff: Say S like in Sam, H like in Harry... 

Grace Robiou: P as in Paul... 

Arthur Wolff: P as in Paul 

Grace Robiou: ...and D as in David... 

Arthur Wolff: D as in David. 

Grace Robiou: ...comment – one word... 

Arthur Wolff: ...promise? 

Grace Robiou: Comments as in we're... 

Arthur Wolff: Oh, comment. Excuse me. 

Grace Robiou: That's OK. 

Arthur Wolff: All right. 
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Grace Robiou: And then @... 

Arthur Wolff: @... 

Grace Robiou: ...EPA... 

Arthur Wolff: ...EPA ... 

Grace Robiou: ....gov. 

Arthur Wolff: ....gov. Is that the federal – that'd be the federal department . . 

Grace Robiou: That's ... 

Arthur Wolff: ...the EPA (inaudible) ... 

Grace Robiou: Yes, that's the e-mail address. We're going to receive comments on this 

particular rulemaking, and if you can send us a question there to referring to 

this conversation we'll be able to help you. 

Arthur Wolff: Thank you very much. 

Grace Robiou: No problem. Thank you. 

Operator: Your next question comes from Michael Bloom. 

Michael Bloom: You refer to a number of states being consulted early on, I was wondering if a 

list of those contacts or states that were involved in those discussions could be 

made available on the website or at some point. And then also on slide 16, I 

was wondering if the specific court decisions, you know the dates or the 

dockets or some you know reference number could be made available so that 

someone who wanted to look back at that particular court decision could do 

so. 

Christina Christensen: Yes, thank you. A couple of great clarifying questions. 
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With regards to the list of participants from this session as well as from 

previous sessions, those will be made available on our website. And if you 

have that presentation in front of you, we identify the websites on slide 17. 

Michael Bloom: OK 

Christina Christensen: (Inaudible) 

Michael Bloom: ... but in terms of the state – particularly the state water quality managers that 

were consulted that – even before this event (inaudible) (constructive) I think 

to see a list of those folks too. 

Grace Robiou: Yes, I think that lists from the session as well as the participants who dialed in 

will be available, including the – kind of the organizations that they represent. 

Michael Bloom: OK. 

Christina Christensen: And then with regards to your second question on the court decision, I can 

also direct you to the Federal Register notice that we put out announcing 

these public listening sessions which, I believe, you can also find that on our 

website. That Federal Register notice identifies the specific legal citation for 

those cases. 

Michael Bloom: OK, thank you. 

Christina Christensen: You're welcome. 

Operator: Your next question comes from Jon Ball. 

Jon Ball: (Inaudible) 

Female: My question is about the uses and the UAA. I would like to know if there are 

clear sort of instructions as when some of the uses are not attainable or they're 

conflicting uses for waterbody, and therefore, the agencies can do a UAA for 

those uses to be reconsidered. Are there clear instructions for that, because 

we haven't seen UAAs done for a long time and there clearly are now some – 

I can give you an example. For example, in Los Angeles, we have man-made 

lakes which are filled with potable water. There's no input into the storm 
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drain or output. They're filled with potable water and the statewide policy is 

to use recycled water, and we're seeing now nutrient standards, nitrogen, and 

phosphorus standards that we would see for a normal lake – you know a soft 

bottom lake applied to these man-made lake, which gets filled up with potable 

water. And those nitrogen standards are even lower than potable water. So it 

clearly asks for a revision of the use or somehow annoying UAA, and I 

wanted to know if there are some efforts in that area to clarify how UAA – in 

what case it would be looked at and it would be approved. 

Christina Christensen: OK, it sounds like you are looking maybe for some information and 

examples of UAAs that have been done in the past. On slide 17of our 

presentation we note that for further information about water quality standards 

under the Clean Water Act, we give you two websites to go visit. And on I 

believe the first website, you can actually link to some case studies we've 

developed; you know situations where UAA has been conducted for various 

reasons, and I think you might find some really helpful information on that 

site. 

Female: (Inaudible) Thank you. 

Grace Robiou: Next comment, please. 

Operator: Your next question comes from Sharron Green. 

Sharron Green: Yes, my question also has to do with the page that has to do with uses, and I 

wanted to ask a clarifying question about the bullet point of possible changes, 

number two, where you specified if 101(a)(2) is deemed unattainable, the 

highest attainable use closest to the goal must be adopted, that language. 

My question, I guess, is whether your current thinking is that there would also 

be an elaboration or definition of what the highest attainable use language 

means because it's not always clear when you look at the variety of designated 

uses if you did remove you know one of the goal uses what the "highest 

attainable use" would be. 

Grace Robiou: Yes, thank you. That's a very good comment, and in indeed, it seems to have 

reoccurred between this call today and the previous sessions that we've had, 
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the need for us to clarify what we mean by highest attainable use. And we 

will take note again of that and make sure that that's forthcoming. 

Sharron Green: Thank you. 

Operator: Your next question comes from Sally Shaver. 

Sally Shaver: When you were talking about antidegradation policy, you made the statement 

that it applied or that states needed to identify high quality waters. Does 

antidegradation only apply to high quality waters? 

Grace Robiou: No. Well, the antidegradation regulatory requirements currently describe the 

protection of existing uses as well as high quality waters. I think it's fair to 

say, though, that the targeted revisions that we are proposing for you to 

consider here and give a comment on are really more specific to enhancing the 

protection of high quality waters, otherwise known as tier two waters, in the 

antidegradation language. 

Sally Shaver: OK, thank you. 

Grace Robiou: It's a good question. Thank you. 

Operator: Your next question comes from Dave Peeler. 

Dave Peeler: Hi. This is Dave Peeler out in Olympia, Washington, and the question I first 

want to ask has to do with your work on variances. I'm wondering if that will 

also include any language about mixing zones for NPDES permit discharges. 

As I understand it, the current regulation does not address these mixing zones. 

Christina Christensen: Yes, that is correct. Current regulation speaks very briefly to mixing 

zones. What we're considering doing for variances, I don't think we will be 

addressing mixing zones as part of that. I believe on our website we do have 

some information on mixing zones. We have a compendium of information 

on mixing zones that you might find useful, but not in the changes we're 

considering making to this regulation. 

Dave Peeler: OK, and one other comment or question I had was around the uses of 

protection uses and updating where it talked about the states actually having to 
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talk about whether or not their current uses and criteria were protective. And 

some states, I believe, are still covered including Washington state under the 

National Toxics Rule adopted in 1991 or 1992 – a long time ago – and you 

know they've never had to demonstrate that that particular rule is still 

protective of the uses in those states, including my state. And it seems like 

some kind of a link in the rule that you're addressing here that's at NTR 

specifically I think would be something that would be useful. I wondered if 

you're considering how to address the states that are still covered by the NTR. 

Christina Christensen: I think that's a great comment and thank you. We're going to make a note 

of that. I want to let everyone know that we have a room full of people here, 

and we're all taking notes on everything you're saying. So rest assured, we 

have your comments, and we're also recording as well. 

Operator: Your next question comes from Ben Otto. 

Ben Otto: Hello. This is Ben Otto with the Idaho Conservation League. I just realized I 

think my question was answered. It was about the uses and whether the 

highest attainable – whether there would be some guidance about what highest 

attainable use means, that there's a sort of ranking system for the various uses. 

It sounds like you said you will offer that guidance at some point. 

Manjali: This is Manjali talking. I did just want to clarify one thing is that the concept 

of highest attainable use is not intended to indicate that there would be a 

ranking system amongst the different uses. It's not about adopting aquatic life 

over recreation or another use over another. 

What we're talking about with highest attainable use is the assumption that 

there is a spectrum of what is attainable for an aquatic life use, anywhere 

ranging from really, really bad aquatic life to a full 101(a)(2) Clean Water Act 

citation for aquatic life. And high attainable use is really referring to where 

along that spectrum state standards are established at – the use that they're 

established at. 

Ben Otto: Very good. That is an interesting approach. And so I guess my question was 

just making sure that that is promulgated in some sort of... 
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Manjali: Yes and ... 

Ben Otto: ...(inaudible) ... 

Manjali: As Grace had said, we would clearly need to define it and expand on our 

thinking in the preamble as well. 

Ben Otto: Great, very good. Thank you. 

Operator: Your next question comes from Brooks Smith. 

Brooks Smith: I have a question – a clarification. On page 16, you referenced potentially 

revising the definition of water quality standards in response to litigation 

involving the Florida Impaired Waters Rule. 

That litigation was complicated – there's a long procedural history and a 

lengthy docket, and I am curious to confirm – as I understand it, in 2004 the 

11th Circuit remanded an earlier district court decision back to the district 

court, who then asked EPA for a determination as to what might constitute or 

not constitute a water quality revision. In 2005 – on July 6th, 2005, EPA 

submitted that determination specifying what the agency believed to be 

interpretive changes that were tantamount to water quality standard changes 

subject to their review and approval, and I would like to know whether that is 

what you mean when you talk about the 2004 case decision and EPA's 

response. 

Christina Christensen: Yes, yes, that is what we're referring to with revising the definition of the 

water quality standards. 

Brooks Smith: Thank you. 

Operator: Your next question comes from Gerald Blaha. 

(Mark Tomasak): Yes, (inaudible), this is (Mark Tomasak) on Jerry's line. 

The question is on slide 16 with compliance schedules. In the Florida water 

quality standards for nutrients which EPA put together, there was a discussion 

about restoration standards, and I'm wondering if restoration standards are off 
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the table and compliance schedules is envisioned and the revision are to take 

their place. 

Grace Robiou: OK, Manjali. 

Manjali: This is Manjali. Restoration standards and compliance schedules were 

actually to some extent independent thoughts, and what we're talking about 

here on slide 16 is really about the compliance schedule authorizing 

provisions, which in the Florida rule we were clear that Florida itself has their 

own compliance schedule authorizing provision. 

The concept of restoration water quality standards are very similar to the 

concepts of variances. And so in terms of what you're seeing here in the link, 

many of the principles and docs would probably fall under whatever we 

decide to do through any changes to the variances in the regulations. 

(Mark Tomasak): And do you expect that it will talk about the length of time that compliance 

schedules can be listed for? 

Manjali: No. Again, this is where compliance schedules and variances are different. 

We would talk about lengths of time for variances, but as Christina had 

mentioned, with compliance schedules themselves, those are actual permitting 

provisions. So all our regulation is only going to address the relevant portion 

of compliance schedules that has to do with water quality standards, which is 

nearly the authorizing provision. Any restrictions or regulations or 

requirements related to the permit compliance schedules themselves are really 

contained in the permitting program regulations, which is not subject to 

change in our action here. 

(Mark Tomasak): Thank you. 

Operator: Your next question comes from Annette Feliberty . 

Annette Feliberty : My question also regards the compliance and what EPA is (inaudible) to 

requiring the state to include in their water quality standard regulation, the 

provisions to establish (to more) regarding the process uses by the state in 
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approving the compliance (inaudible) or what EPA intention is to require 

(there some) (inaudible) of this compliance schedule to EPA. 

Manjali: This is Manjali again. What we are contemplating saying is that where a state 

wishes to authorize itself to be able to grant compliance schedules in its 

permits somewhere in a binding regulation such as the water quality standards 

or other implementing regulations, it has to provide some sort of an 

authorizing provision. And while that authorizing provision doesn't 

necessarily have to be in their water quality standards program, it would need 

to have EPA approval as an effective water quality standard. 

So the way our programs work is that states and territories have water quality 

standards, but regulations outside of the water quality standards can also be 

approved by us as water quality standards. The states will still have the 

discretion and (inaudible) discretion of where they put the authorizing 

provision. It just means that EPA needs to approve it under the Clean Water 

Act 303(c) program. 

Operator: Your next question comes from Ann Coan. 

Ann Coan: Hello. This is Ann Coan. Some of this has already been talked about and I 

guess I need a little more clarification. 

The water quality high attainable use information, if I understood you 

correctly, you say that you will not be publishing a hierarchy that recreation is 

higher than fish propagation. My question is this; what if a state has 

additional designated uses, how would that fit into this? 

Grace Robiou: You mean as if the state had maybe a subcategory of use? 

Ann Coan: Yes, for example, nutrient sensitive waters, potential water supply. 

Manjali: This is Manjali. The concept of high attainable use is really referring to the 

spectrum within one set of uses, whether it's related to aquatic life or 

recreation. So it wouldn't necessarily talk about the differences between 

(inaudible) uses unless there are multiple designated uses you know for 

aquatic life let's say. Our regulations say that states need to protect for the 
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most sensitive use in the – you know in the (inaudible) that are adopted in the 

standards. 

Ann Coan: So if I have a state that has aquatic use standard for shellfish, endangered 

species versus aquatic use standard for fish propagation, you're saying that 

would be a hierarchy. 

Manjali: Shellfish is a little harder because some states have shellfish sort of protected 

separately from the regular aquatic life, but I think in theory – right, in theory 

if it's all related to aquatic life, yes, there would be probably a hierarchy. But 

the idea also declares that we will not be establishing any sort of list of 

hierarchical uses in the rule of the preamble. We are only going to be saying 

that the states must evaluate what is a high attainable use that is attainable. 

Ann Coan: When you review water quality standards submitted by the states will you 

expect them to designate the hierarchy? 

Manjali: Not the hierarchy, but to reflect that they have evaluated what is the high 

attainable use. 

Ann Coan: OK, thank you. 

Operator: Your next question comes from Art O’Brien. 

Art O’Brien: Yes, my question relates to slide 15 on the triennial review. I was wondering 

if you could clarify if the current regulation or the possible changes require 

states or tribes to actually implement the recommendations that come out of 

the triennial review. 

Grace Robiou: We actually got a similar comment on Tuesday during the public session, 

meaning that we got the comment about whether EPA is going to be 

evaluating the states’ consideration of public comments. I think that we are 

taking that as a comment, and we'll see where we land on it. But initially that 

is not the intent of this provision here. 
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Art O’Brien: So in California oftentimes we do the triennial reviews and come up with a 

long list of recommendations, but there's no requirement to go through and 

implement those list of recommendations. 

Christina Christensen: And these are recommendations from the public on what they think your 

triennial review should cover? 

Art O’Brien: No, they're recommendations from the state regulatory folks – the regional 

board of – likely the regional board to actually – here's what they recommend, 

but we often don't see an implementation of those recommendations. 

Grace Robiou: Thank you. 

Operator: Your next question comes from Jeff Salt. 

Jeff Salt: Jeff Salt in St. Lake City. I have several questions, one regarding beneficial 

designated uses. Will there be any opportunity to address the threshold time 

period in the law for establishing that beneficial use? 

Here in Utah, we have a situation where waterways were used for certain 

recreational uses, but then those uses were precluded through the '50s and '60s 

by industrial discharges in sewer plants. And now we're being told we can't 

establish the regulatory authority to bring back those beneficial uses that were 

precluded before the 1970s cutoff time. 

Another question would be whether your recommended changes would 

provide an opportunity to require states to have only narrative standards to 

force them or to encourage them to develop criteria so that those narrative 

standards could then evolve and have water quality standards – numeric 

standards applied to them. 

Another question would be, will your revisions provide an opportunity to 

refine and update and clarify the list of designated beneficial used. For 

example, recreational boating is typically classified as to be non-contact or 

secondary contact activity, when in fact much of the non-motorized boating 

that's done in this country is primary contact – kayaking. And so can we look 

to this opportunity to refine those definitions? 
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And lastly, is there an opportunity to allow in the triennial review adoption of 

water quality standards or modifications of water quality standards that are not 

tied to a problem identified in the state's 303(d) list so we can go outside of 

the current 303(d) list and make recommendations and not be precluded from 

doing that during that triennial cycle? 

Grace Robiou: Those are pretty loaded questions. 

Christina, can you start with the second one maybe? 

Christina Christensen: Well, I think what I was going to suggest is in the interest of time we were 

hoping to move ahead to our discussion where we ask people for their 

comments and views. And since those were very in-depth questions... 

Female: (Inaudible) states. 

Christina Christensen: Yes, very specific to some situations in your state. I think what we'll 

suggest is you could send those questions to us in an e-mail to the SHPD 

comments e-mail address that Grace provided and that's identified on slide 17. 

Jeff Salt: Sure. 

Christina Christensen: If you could send those questions to us, I think it'll be more efficient if we 

get back to you via e-mail. 

Jeff Salt: OK, great. Thanks. 

Christina Christensen: Thank you. 

Operator: Your next question comes from Lisa Zemba. 

(Kevin Stetter): This is actually Kevin Stetter on Lisa's line, but I had a question regarding 

variances and the question or the concern about how to use those variances 

and whether the focus would be on trying to look at who would be or what 

situations would be applicable to allow a variance, or if a variance is granted 

there'd be certain requirements on the permitting to follow through with. Kind 

of what the focus 
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 would (inaudible). 

Manjali: This is Manjali speaking – I think we are looking at trying to figure out 

regulatory requirements on both of them. 

Christina Christensen: And we are open to any suggestions that you or anyone else on our call 

might have on specific things you'd like us to consider when identifying 

regulatory expectations (inaudible). 

(Kevin Stetter): OK, I guess the concern is that there is some flexibility for variances to apply 

to multiple entities, let's say. You know you can't be too restrictive of what's 

required, but at the same time, this starts to get pretty close to basically 

compliance schedules. So it's how the two are different. 

Christina Christensen: OK. 

Grace Robiou: I want to use this opportunity to end the period of taking clarifying questions 

and move to taking your comments and views on specific reg revisions. 

Operator: At this time, I would like to remind everyone, in order to state a comment, 

press star, then the number 1 on your telephone keypad. 

Your first comment comes from Ben Otto. 

Ben Otto: Hi. It's Ben Otto again with Idaho Conservation League. 

First of all, we think that your move – the proposals for antidegradation are 

timely and very appropriate. We definitely appreciate the EPA's work on this. 

We think that this is a very positive step forward in implementing the Clean 

Water Act. So the proposal so far looks very good. We are highly supportive. 

We think they're critical to effectively enforcing the Act and urge you to move 

rapidly forward on that front. 

And also the same with triennial reviews. Essentially (inaudible) we have the 

same position on that. But antidegradation looks like a patchwork across the 

country, and I think it's good for EPA. I think it's good for everybody that the 

EPA's going to put some certainty and clarity and some minimum standards 
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on that requirement. So, again, thanks, and you can be a strong effort in that 

regard. 

And that's the end of my comments. Thank you. 

Christina Christensen: Great. Thank you very much. 

Operator: Your next comment comes from Sally Shaver. 

Sally Shaver: Yes, thank you. 

I'm not sure whether this is a question or a comment, maybe a little bit of 

both. But on the uses and attainability of those uses, I would be concerned 

about how swimmable is treated, and I don't know how that is now, but I 

would be concerned if states had to demonstrate that swimmable was not an 

appropriate use where depths make it impossible. You understand what I'm 

saying? 

Grace Robiou: Yes, we do know. 

Sally Shaver: And I don't know how that's currently dealt with. 

Grace Robiou: So is your comment that you would like to see us address that as part of this 

rule or clarify that or ... 

Sally Shaver: I would hate for us to require states to do a lot of demonstration and 

paperwork to show that swimmable is not a designated use when you know 

it's just not viable because of the water depths and stuff. I mean, that just 

seems like a waste of effort and time, and I just don't think it's worthy of a lot 

– I mean, this should be clear (inaudible), but I don't think a lot of paperwork 

should have to be done by the state in terms of demonstrating that that's not an 

appropriate use even though I understand that that's a goal of the Clean Water 

Act that's been in there for a long time. But if you move to this demonstration 

type approach, it sounded like to me there might be a lot more paperwork that 

could be unnecessary in the case of swimmable for some waters. 

Christina Christensen: Thank you. That was a good comment. 
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Sally Shaver: Thank you. 

Operator: Your next comment comes from David Peeler. 

David Peeler: Hi. This is Dave Peeler again with People for Puget Sound in Olympia, 

Washington, and I wanted to echo the first commenter that I think overall this 

is a really, really positive, constructive proposal and the various courses you 

have here on uses, antidegradation, variances, et cetera, I think really make a 

lot of sense overall. Of course, as we all know, it will be difficult to get all the 

details just right so that it actually accomplishes what you want to do without 

doing things you don't want to do. So we'll look forward to those. 

I did want to come back to the National Toxics Rule for a moment. I think 

that where you have the issue of uses not being protective and the 

administrative's determination in another section about things that the state 

needs to do to correct water quality standards. I think that would be an 

excellent place to start to address states that are still covered by the National 

Toxics Rule. I think that's extremely important that that rule be basically 

taken off the books by having states adopt their own criteria. 

The other issue that I was thinking about here, and I think this could be tricky, 

is that I do believe that having more specificity about the process of the 

triennial review, as you indicate on slide 15, is critical. But one thing that 

isn't included there, at least I didn't see it, is what happens at the end of the 

state's triennial review process. You're going to clarify that they must 

consider public input and they must demonstrate that they got that input. But 

as with one of the previous commenter's I think where is it that the state 

actually makes a determination about what it then is going to do with that 

information and why or why not it's going to proceed you know with certain 

changes or additions to its standards. 

And states for the most part I think – well, I shouldn't – I won't generalize here 

– I think it's a difficult step for states, and I know that they don't want to have 

yet one more decision point that could be appealable, so I don't – I don't think 

I really want to push it that far. But I do think there needs to be a very 
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straightforward sort of determination made by the state that (inaudible) at the 

EPA. 

The other thing I would say here is that my experience tells me that states are 

really not on a 3-year schedule here and probably haven't been for a number 

of years. And so there doesn't seem to be anything sort of built in currently 

into the rule that sort of pushes states to really want to keep up with a more 

current type of scheduling for the triennial reviews. 

Female: Thank you. 

Female: Thank you. 

Operator: Your next comment comes from Shannon Filarecki. 

Shannon Filarecki: Yes, my question is, here in Michigan we seem to have some confusion as 

to how some of the EPA regulations get enforced or carried out through the 

local municipalities. We have cities, villages, and townships, and townships 

are oftentimes being asked to (right) things that they have no control or 

authority over. 

They don't maintain roads, they don't have storm sewer systems. Those are all 

typically handled through a county (drink) commission or a road commission. 

I'd like to see some clarification in the rules and regulations as to how to 

address those communities that don't have authority over the waters and what 

can actually be expected from them. 

Christina Christensen: Thank you. 

Operator: Your next comment comes from Katherine Baer. 

Katherine Baer: Yes, hi. This is Katherine Baer from American Rivers and also we'd like to 

echo the other comments that we think this is a positive step on many of the 

components that EPA is proposing today. 

And (inaudible) there's a wide range of issues that have been discussed, I 

wanted to focus my comment today on tier three policy under antidegradation, 

and we feel that tier three waters represent a key part of the Clean Waters Act 
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water quality standards and one that should really be better utilized to protect 

some of our highest quality waters. I think the federal policy in this area 

remains too vague and really needs to be improved to provide a better impetus 

for states to designate and protect tier three waters. 

As you know, in many cases the (inaudible) designations are either not used or 

fully defined and underutilized. This really represents a missed opportunity to 

protect some of our high quality and healthy waters. And it was just 

interesting to note that in the EPA's recently released coming together for 

clean water strategy, the protection of high quality waters is actually listed as 

a priority/ So this is a great opportunity to bring those things together. 

In an analysis done for American Rivers, we found that across the country 

only 27 states even have waters designated as tier three, and in some of those 

27 states only – some of those states only have one or two waters designated 

(showing) really we're not doing a great job of using tier three to fully protect 

our outstanding and healthy waters. 

So we recommend that we look at some of the best examples around the 

country as a way to possibly inform federal regulations in how to define and 

provide implementation guidance and requirements for states. So some states 

around the country – the ones who had a well-written policy that really 

expanded on the minimum guidance provided in a federal policy, these 

policies often include some of the following; some states automatically 

designate waters within federal and state protected land such as federal, wild 

and scenic rivers that don't necessarily get clean water protections upon 

designation, many states also define degradation as one of the tier two policy, 

you know defines degradation as more than just a expanded point source of 

pollution but recognizing that flow alteration and non-point source pollution 

are often sources of degradation. 

In accordance with the federal definition, some states also designate 

ecologically significant waters, such as waters that provide habitat for 

federally listed, endangered-threatened species at tier three waters, and that's 

something that really needs more emphasis to reach the Clean Water Act's 

goals of biological integrity. We really hope that under this rulemaking that 
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EPA should provide a more clear and (inaudible) policy to make more robust 

use of tier three protection, including some of those things that some of the 

strong states are doing. 

This would also include an accessible public nomination process for 

designated waters that would include a mandatory response time because in 

some states we know that people have petitioned to have tier three waters, but 

those petitions in fact (inaudible) for several years at this point. So we 

support EPA's proposal on to really require antidegradation implementation 

adopted into state and tribal water quality standards, and we'd like to continue 

working with you to make this happen. 

And finally in terms of triennial review process, we also support EPA's 

proposal on to make this a mechanism where the public is meaningfully 

involved and that people should be able to petition for a change in the 

standards and ensure that states actually conduct these reviews on the threeyear schedule. Thank you. 

Grace Robiou: Great. Thank you. Those are very helpful comments. 

Operator: Again, if you'd like to make a comment, press star, then the number 1 on your 

telephone keypad. 

Your next comment comes from Mary Ware. 

Mary Ware: Hello. This is Mary Ware from Memphis, Tennessee, and I wanted to know 

what provisions under degradation would cover coal ash storage, which is 

always close to rivers and you know what happened in East Tennessee. But I 

don't know if any of this is covered now. 

Christina Christensen: That is a very interesting question and we're all kind of looking at each 

other. 

Grace Robiou: Could you restate the question. 

Christina Christensen: Yes, maybe you could tell us a little bit more briefly about coal ash 

storage. I don't know if we're that familiar with ... 
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Mary Ware: Coal power plants have to store the coal ash that is left over and they 

frequently do it in these large reservoirs that's right next to the rivers that they 

use for cooling. And we had a terrible disaster in East Tennessee, which 

ruined hundreds of miles of rivers there. But all of our coal power plants have 

these coal ash – some type of storage facility that can potentially pollute all of 

our waters like here in Memphis on the Mississippi River going all the way 

down. What provisions do you have to safeguard these from polluting our 

water? 

Grace Robiou: Our current regulation does provide for states to adopt water quality criteria to 

protect designated uses and... 

Mary Ware: I don't think those are used to ... 

Grace Robiou: Yes. 

Mary Ware: ...regulate these coal ash storage. I don't think anything regulates this beyond 

what just the power companies want to do. 

Grace Robiou: Yes, I guess we're a little puzzled because I'm not sure that we are prepared to 

answer to your question or help you in any way. If you are able to provide us 

with more information via e-mail, we... 

Mary Ware: I (inaudible) ... 

Grace Robiou: ...will direct you to somebody who can help you more. We're not seeing a 

direct link between the problem that you're highlighting for us and our ability 

to act on it as part of this action that's the subject of this call. 

Mary Ware: OK, can I ask one other (impossible)... 

Grace Robiou: Sure. 

Mary Ware: .. question? Have you considered doing any regional standards for areas that 

have multi-state problems as in the Mississippi River dead zone and the 

Chesapeake Bay dead zones? There's multiple states that are involved with 

this that cause it. 
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Grace Robiou: And when you say it's the coal ash problem? 

Mary Ware: No, no, no. I'm saying the dead zone in ... 

Grace Robiou: Right. 

Mary Ware: ...the lower Mississippi River where there's no fish at all. There's also a dead 

zone in the Chesapeake Bay. 

Grace Robiou: Yes, I think 

Mary Ware: (Inaudible) by pollution from multiple states upriver. 

Grace Robiou: Yes, I think that you're asking very relevant environmental questions and 

(inaudible) ... 

Mary Ware: It takes more than one state to solve it is what I'm saying, so there needs to be 

yes multiple states working on consistent standards for the whole region. 

Grace Robiou: Right, and in fact some other caller previously mentioned the draft strategy for 

clean water that was put out for public comment last week. In that document, 

the EPA proposes to dedicate a lot of resources to the Chesapeake Bay and 

use that as a model for restoration of other waterbodies across the nation. And 

so I think there's numerous activities that EPA is undertaking in this program 

and other programs with a goal of restoring these waters and dealing with a 

high (inaudible) zone in the Gulf of Mexico. 

We can provide you with information about where to go with your questions. 

(Inaudible) our action – this specific rulemaking here would not be dealing 

with any region-specific, state-specific issue. This is more looking at 

changing the fundamental water quality standards regulation to try to allow 

states to use the regulations to drive towards maintenance and restoration 

efforts with more power and more authority. 

Mary Ware: Right. Well, my only comment on that as long as each state sets their own 

standards and implementation plans then it doesn't come together to have a 

regional action that's required, or at least it hasn't happened yet. 
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Grace Robiou: OK, thank you. 

Operator: Your next comment comes from Jessica Baca. 

Jessica Baca: Hi. I just wanted to comment. Is this – your NPDES permits will be related 

or will you take into consideration the (inaudible) river that these NPDES 

permits are the point source where they're emptying into rivers – the 

antidegradation laws will take that into consideration when issuing permits? 

Grace Robiou: Well, I believe currently antidegradation needs to be considered in the 

issuance and renewal rule of NPDES permits. Our proposed rulemaking here 

regarding water quality standards wouldn't change that in any way. It's more 

looking at the contents of the implementation methods and allowing EPA to 

have an opportunity to review those and approve them as part of water quality 

standards. So I'm not sure that I'm answering your question, but we're not 

looking at changing anything in the permit regulations dealing with 

antidegradation. 

Female: OK, I guess I just wanted to make sure that you know we were not going to 

continue to pollute already polluted streams, if there was going to be included 

in the antidegradation section, or to further pollute an already polluted – or 

how that was going to be addressed actually. 

Grace Robiou: We got your comment. There are other efforts in the permitting arena that I 

think are more relevant to your comment and we'll pass your comments along 

to those people. 

Operator: Your next comment comes from Jennifer Hecker. 

Jennifer Hecker: Hi. This is Jennifer Hecker from the Conservancy of Southwest Florida, and I 

just had a couple of questions/comments and follow-up to the ones we offered 

on Tuesday. 

One has to do with variances, and I wondered what EPA was doing to address 

what we're observing here in Florida with more widespread practice of not 

listing impaired waterbodies on the 303(d) list based on "natural conditions" 

that they're not exceeding – that they're exceeding state water quality 
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standards based on "natural pollution". And EPA guidance is very clear that 

even if there is you know a natural source, as long as there are human 

identified sources or plausible sources that it should still be listed. 

But our state is not doing that, so I wondered if EPA could, number 1, put 

some defined guidance as part of this rulemaking that addresses that in any 

way, perhaps under the variances section because our state is not going 

through any formal variance process when it does this. And so that was my 

first question. And the second one has to do with uses, and it was in follow up 

to a comment that was earlier about swimmable, and I would just encourage 

EPA to consider that swimmable should not be eliminated as a use based on 

physical characteristics of the waterbody alone, such as depths, that we're 

really talking about having a water quality condition that's safe for primary 

contact. 

And so you know rather than a literal interpretation of swimmable, I think we 

need to be emphasizing: more the primary contact public health and safety 

aspect and make sure that things that are just shallow aren't "swimmable". 

Thank you. I just want a feedback on those two things. 

Grace Robiou: Yes, and just in brief response, when you have an opportunity to comment on 

our proposal the place where that would appear would be in reference to high 

attainable use. So you might want to take a look at that whenever that's made 

available and see if that is sufficiently clear to you. 

Jennifer Hecker: OK, so do you anticipate that EPA will not be eliminating swimmable as the 

high attainable use based on physical characteristics alone? 

Grace Robiou: We haven't made any decisions about the extent to which we're going to be 

making new policy a part of this rulemaking in the context of what factors 

may be used to change a recreational use. So far, our thinking has been 

limited to creating or not creating but reinforcing the concepts that if you are 

changing your users and doing a UAA that the high attainable use that's 

closest to the 101(a)(2) to use is what should be put in place instead. 
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Jennifer Hecker: OK, well, we would encourage you. It's definitely a big movement here to 

make the argument to downgrade swimmable/fishable waterbodies based on 

physical characteristics like locks (inaudible), things of that nature, as well as 

depths, and we would discourage EPA from moving in that direction. Is there 

any feedback you could give us on this whole natural conditions issue? 

Grace Robiou: You know not really, honestly. I think we need to think about that and we are 

taking it down as a comment that we need to really kind of consider this. I 

guess we hadn't honestly looked at the connection between variances and 

natural resources, and I think we need to do a little research if we're able to 

answer substantively. 

Jennifer Hecker: Well, I guess my comment is just that they should have to do something in 

lines of going through some kind of formal variance process. They can't just 

ignore the requirement to list these waterbodies if they're not meeting state 

water quality standards because they say they're natural. And in many cases 

you know – for instance, like iron, there'll be a small contribution from ground 

water and they'll just be listed for you know informally, just not continue to 

list it based on that even though there are anthropogenic iron contributions are 

well. 

So I want to make sure that you all are aware of that, and if there's any way 

that you can address that and reinforce EPA guidance that those waterbodies 

should in fact be listed and continue to be listed. 

Manjali: This is Manjali. I just wanted to clarify one thing. I think some part of your 

problem may be more rich from how they list the waters and live independent 

of the water quality standards and the variance process. It sounds as if there is 

some concern over whether or not their list are appropriately reflecting what is 

impaired and whether our quality standards are being attained. 

So – but separate from that in relation to your variance thought, some of the 

thinking that we have been going through in terms of what we would add in 

the variances would be to clarify what are the expectations for these waters in 

relation to 303(d) decisions when a waterbody is indeed granted a variance or 
EPA 

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when there is a variance that's somehow applicable somewhere on the 

waterbody. 

We have been talking about you know whether we would clarify in regulation 

what does that mean for 303(d) listing, but if the concern is that the state is not 

listing waters appropriately, that is probably something that would not be 

directly addressed through this regulation. 

Jennifer Hecker: Well, I should clarify. They list it as not meeting standards. They just put it 

as in our state 4C, which means it's not meeting standards but they're not 

moving forward with any TMDL development because they believe it to be 

due to natural conditions. But then they don't get a science specific alternative 

criteria, and they don't go through the processes delisting. So they don't really 

prove their case, but they don't move forward either. It just kind of sits in 

purgatory and if you could address that, we would greatly appreciate it. 

Thank you, and that was the comment. 

Operator: Your next comment comes from Judith Petersen. 

Judith Petersen: I'm sorry. Did you say Judith Petersen? 

Operator: You're on – yes, you're on. 

Judith Petersen: OK, sure. Sorry. I had a problem understanding her. 

Well, this is Judith Petersen. I'm with Kentucky Waterways Alliance. 

I'd like to echo some of the previous callers' comments. In particular, for the 

most part, I think that our organization very much supports most of what EPA 

is trying to do here, and we will be submitting written comments. I would 

also like to echo the commenter from Florida recently with the concern about 

possibly removing swimmable or other uses just based on physical 

characteristics of a waterbody, and again just state that we interpret that as 

needing to meet primary contact for a variety of reasons. It could be 

children's contact, it could be a whole host of uses notwithstanding the 

traditional definition of swimming. 
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But primarily, I wanted to comment on antidegradation. And as you may 

know or may not know, Kentucky has a very long history with 

antidegradation implementation, including rules that are before EPA right 

now. I'd like to echo Katherine Baer’s comments regarding tier three ONRW 

and the need to clarify and make additional procedures and make it easier for 

citizens to nominate tier three waters and some sort of guidance – clarifying 

regulations that states need to at leader make – need to rule on any complete 

submissions for tier three waters that are – that are before that as a part of the 

triennial review process. 

And some of that would be I think included in EPA's move here to make sure 

that triennial reviews are complete review of water quality standards, and that 

citizens' comments are sought prior to determining what a state will modify as 

a part of the triennial review. 

But in particular, I wanted to comment on antidegradation. In general, again, 

we very much support EPA's move here to clarify the minimum requirements 

and make sure that they are adopted into a state or tribe water quality 

standards and that those are submitted for EPA's approval and review. But 

what I would also like to urge EPA is not to leave the issue at just that. 

That is, there are other Clean Water Act permits that we believe very strongly 

require an antidegradation analysis, in particular 401, water quality 

certifications. These should be required to undergo antidegradation review, 

and it's unclear to me whether or not that kind of review would be explicitly 

stated in EPA's proposed actions here. Thank you. 

Female: Thank you. 

Female: Thank you. 

Grace Robiou: I want to do a little bit of a wrap-up and we have two callers with comments 

or views pending, but I want to do the wrap-up and then turn to those two so 

that we can wrap up on time. I want to communicate that if you have 

additional thoughts or views after the call here's several ways to proceed. 
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Page 36 

You can communicate those thoughts to us by e-mail to the e-mail address 

that have been provided a couple of times and I'll provide once more, which is 

shpdcomment@epa.gov. Or you could write us a letter to the address shown 

on slide number 19. For those of you that are listening only the addressee 

would be Thomas Gardner at the Office of Science and Technology, and you 

need to indicate where this correspondence needs to be sent to. So please 

include our mail code, which would be 4305T, and that would be EPA, 1200 

Pennsylvania Avenue Northwest in Washington, DC, 20460. So again, 

Thomas Gardner, Office of Science and Technology. The mail code is – 

please indicate it – 4305T, EPA, 1200 Pennsylvania Avenue Northwest, 

Washington, DC, 20460. 

We will take any written comments by e-mail or mail that you choose to 

submit by September 10th. This is a little different from what the slide says. 

The slide currently says September 3rd. We've extended that to allow for a 

little bit more time for you to think about this and submit your comments. 

But it's important for us to get those comments by then because after that time 

we cannot promise that they will be considered as part of our decision making. 

We are on a schedule here obviously and they would be most useful if they're 

provided to us by September 10th. 

And then I'll now turn it back to the Operator. We seem to have three 

comments left, but we have seven minutes so we'll try to cover them all. 

Please try to be succinct. 

Operator: Your next comment comes from (inaudible). 

Female: Hey. I'm (calling the) comment that maybe related back to a earlier moment 

about the antidegradation policy implementation. 

My understanding is that the current antidegradation policy does not allow for 

changes to state technology standards that have been incorporated into a state 

(inaudible) permit even if those state technology requirements are exceeding 

the federal requirements. The problem we have is a state technology 

requirement for multi-filtration that relates to drinking water purposes but it's 

in the (inaudible) permit and now we are looking to remove that. There 
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wouldn't be any change to the designated use or the water quality, but it seems 

to be that once it's in the permit it can't come out. Would that – is that a 

proper understanding, and would the antidegradation implementation policy 

possibly address that? 

Grace Robiou: That's not our current understanding unless we're interpreting your question 

differently. I'm not sure. I feel like maybe just a brief answer here would not 

give you – give (inaudible) appropriate for this. 

Female: OK. 

Grace Robiou: I would encourage you to submit a question to our e-mail address, and we can 

be more thoughtful in our response that way. 

Female: OK. 

Operator: Your next comment comes from Ann Coan. 

Ann Coan: This is Ann Coan. I represent the North Carolina Farm Bureau, and I have 

tremendous amount of concerns about our land and our agricultural land, and I 

feel that EPA as they're considering changes to water quality standards need 

to take into account unintended consequences such as increased contaminants 

in bio solids that are then applied to land, or if they're taking a discharge thing 

that a facility cannot discharge into a certain water that that is then land 

applied with consequences to the land. 

And I just want EPA to consider as they're considering these water quality 

standards that they're not working in a vacuum. That there is another aspect 

of where people live and work and have their food produced that it is very 

important to protect as well. And that's my comment. 

Christina Christensen: Thank you. 

Operator: Your next comment comes from Ray Tahir. 

Ray Tahir: Hello. As you know, the USEPA commission is studying the state of urban 

storm water management in the nation, which was conducted by the National 

Resources Council. The study was released in 2009 and included dramatically 
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in fact that the national storm water program's in need of an overhaul and 

recommended that USEPA implement several of its recommendations. 

My questions are, one, does USEPA intend to implement any of the study's 

recommendations, and two, if so, when will those recommendations be 

implemented? 

Grace Robiou: I want to make sure that you're aware that EPA is undertaking a separate 

rulemaking for storm water that was announced not long ago. If you'd like us 

to point you in the direction of a specific person that you can talk to we will 

be happy to do that. 

Ray Tahir: That would be helpful. 

Grace Robiou: OK, send us an e-mail, and we'll provide you with a contact. 

Ray Tahir: Great. 

Grace Robiou: Christina reminded me that I should mention that we will not be responding 

to the written comments you submit by e-mail or mail except that if you're 

specifically asking us to put you in contact with somebody else or seeking 

some clarification. But the specific comments or views on the content of our 

reg revisions will not be responding throughout this time because this is not 

our official public comment period. 

We'll be taking that input and factoring it into our thinking and our 

recommendations moving forward, and it's important for you to know that 

both this audio feed as well as any comments that you provide to us in writing 

will become part of a public record for this action. And that public docket or 

record is going to be available to anybody. 

So just be thoughtful for that reason. And with that, unless anybody else has 

another comment, I'd like to thank you all. This has been very helpful to us. 

We have a lot to think about and welcome your feedback as well on the 

effectiveness of these sessions to provide us with your input. 
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It seems like we have one more comment and then, Operator, you can wrap it 

up. 

Operator: Your next comment comes from Jennifer Chavez. 

Jennifer Chavez: Hi. This is Jennifer Chavez from Earthjustice. I know everyone's been 

patient here so I'll be quick. 

Quickly echo that there are many positive steps here and we generally support 

them. I'm a little concerned about Proposal B regarding the Administrator's 

determination that revised or new water quality standards need to be adopted 

by a state. That hasn't gotten a lot of attention here, and it seems incongruous 

to us with the other proposals because it doesn't really strengthen water 

quality protections. It addresses the process question, and as it's described, it's 

basically aimed at protecting EPA from inadvertently creating a legal duty for 

itself you know, which is understandable. 

We suggest that EPA consider not only clarifying new process point, but also 

expanding the scope of this change to include substantive factors or guidelines 

that will be considered for when the Administrator should make that 

determination that a state needs to adopt water quality standards. And this all 

sounds very technical, but it's very crucial when a state waters quality 

standards are too weak to accomplish anything and need to be revised. When 

would EPA consider expanding this change to include a substantive factor or 

guidance on that point? 

Grace Robiou: I take your observation as a comment, and we'll take it and think about it 

(inaudible) other ways that we can achieve our objectives. 

(Jennifer Travis): OK, thank you. 

Grace Robiou: Thank you. 

OK,. I'm turning it back to the Operator. Oh, we have one more? Do we 

actually have that line open (inaudible)? OK, well, we'll take one more 

comment from (Sandra). 
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Operator: Your next comment comes from (Sonya Borhasen). 

(Sonya Borhasen): Hello. My name is (Sonya Borhasen). I'm from Portland, Oregon. 

I'm glad EPA's considering changes to water quality standards regulation, 

however, I don't think they really go far enough. I'd like to see EPA take 

more of a look at the bigger picture. And so consistent with this I'd like to 

propose an approach to protecting our nation's waters from toxics. The 

current approach which involves setting water quality standards for toxics on 

a chemical-by-chemical basis is not effective. 

This is evidenced by the fact that EPA has managed to set standards for less 

than one percent of the chemicals (and using) our economy, and I'm surprised 

by the silence around this. The assumption at which the current approach is 

based is that in order to protect water quality from toxics we have to define 

safe levels of these chemicals. While this seems perfectly logical – in fact this 

is very difficult to do – in many cases, the chemicals for which EPA is trying 

to develop standards for or should be trying to develop standards for have 

already been introduced into the environment sometimes in large quantities. 

The debate over how much (inaudible) is not used (inaudible) to delay action. 

We need to shift our focus from defining safe levels of chemicals to 

developing disincentives for using them when there's scientific evidence that 

they can cause harm even if that evidence is not sufficiently developed for us 

to be able to define a level at which they may be considered safe. 

What might be these disincentives look like? Well, one option would be to 

require manufacturers to provide toxicity ratings on the labels of consumer 

products. The rating could appear as say a score from one to 10 and coming 

up with these ratings may not be difficult. For consumer products they go 

down the drain. And at the treatment plants it could be done using an existing 

regulatory tool for which EPA's already developed extensive guidance. 

This tool is known as whole effluent toxicity testing, or WET testing. It's 

currently used to evaluate the toxicity of sewage treatment plant (inaudible). 

It basically involves assessing the impact of treated effluent on the growth and 

survival of a select group of aquatic species. WET tests could be used to 
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evaluate the toxicity of consumer products and the results translated into a 

toxicity rating to appear on the label of the product 

By giving consumers a way to distinguish between more or less hazardous 

products, manufacturers would have a reason to reduce their toxicity perhaps 

well ahead of when water quality standards may develop – may be developed 

for all of the water – all of the chemicals they contain. Manufacturers who are 

already producing less toxic products would have a competitive edge. The 

field or green chemistry would get a boost. 

It cost on the order of $5,000 to run a set of WET tests on a sample of sewage 

effluent. This is trivial compared to what manufacturers might spend to 

advertise a single product. It's also modest compared to the cost of treating a 

single case of cancer. In fact, compared to trying to determine which of the 

80,000 chemicals currently in use in our economy are safe and (inaudible) 

concentrations this proposal to use whole effluent toxicity testing to evaluate 

the toxicity of consumer products is modest. And thank you for the 

opportunity to comment. 

Grace Robiou: Thank you for your thoughtful comment. 

I think we're going to wrap it up again. Thank you very much and that's it. 

Have a nice day. 

Operator: This concludes today's conference call. You may now disconnect. 

END