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 Federal Water Quality Coalition

September 17, 2010 

Mail Docket 

Office of Water 

Mail Code 2822-T 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave., NW 

Washington, DC 20460 

RE: Comments on Notice re Stakeholder Input; Revisions to Water 

Quality Standards Regulation

 Docket No. EPA-HQ-OW-2010-0606

Ladies and Gentlemen: 

The Federal Water Quality Coalition (the “Coalition”) is pleased to 

provide the following comments on the Notice regarding Stakeholder Input; 

Revisions to Water Quality Standards Regulation” (the “Notice”) that was issued 

by the U.S. Environmental Protection Agency (“EPA”) on July 30, 2010 (75 

Fed. Reg. 44930). 

The Coalition is a group of industrial companies, municipal entities, 

agricultural parties, and trade associations that are directly affected, or which 

have members that are directly affected, by regulatory decisions made under the 

federal Clean Water Act. The Coalition members, for purposes of these 

comments, are as follows: Alcoa, Inc., American Chemistry Council, American 

Coke and Coal Chemicals Institute, American Forest & Paper Association, 

American Iron and Steel Institute, American Petroleum Institute, Association of 

Idaho Cities, City of Superior (WI), Coeur D’Alene Mines Corporation, Edison 

Electric Institute, Ford Motor Company, Freeport-McMoRan Copper & Gold, 

Inc., General Electric Company, Hecla Mining Company, Indiana Coal Council, 

Mid America CropLife Association, National Association of Home Builders, 

Olin Corporation, Orange County Sanitation District, Pharmaceutical EHS 

Sustainability Council, Rubber Manufacturers Association, Utility Water Act 

Group, Western Coalition of Arid States, and Weyerhaeuser Company. 

Coalition member entities or their members own and operate facilities located on 

or near waters of the United States. Many of these facilities operate pursuant to 

individual and/or general NPDES permits for discharges into those 

waters. Those permits often include, and will include in the future, 

Fredric P. Andes, Coordinator

Barnes & Thornburg LLP 

One North Wacker Drive 

Suite 4400 

Chicago, IL 60606 

(312) 214-8310 
Docket No. EPA-HQ-OW-2010-0606 

September 17, 2010 

Page 2 

effluent limitations based on water quality standards established by the States or EPA. 

The Coalition therefore has a direct interest in the matters addressed in the Notice. 

I. INTRODUCTION 

In the Notice, EPA announces its plans to begin a rulemaking to make changes to 

its water quality standards regulation (the “WQS Regulation,” found at 40 CFR 131). 

The Notice provides a general overview of the regulatory changes that EPA is 

considering, and seeks stakeholder input regarding those changes. That input is being 

obtained through several means, including listening sessions being held by EPA, 

meetings with stakeholders, and submittal of written comments. The FWQC has 

participated in the listening sessions, had a meeting with Agency staff on September 7, 

2010, and is now submitting these comments. We look forward to continuing to 

participate in this regulatory process as EPA moves toward the possible issuance of a 

formal proposed rule in the summer of 2011. 

In these comments, the FWQC will address each of the possible regulatory 

changes that EPA is considering. In general, we do not see an urgent need for major 

revisions to the WQS Regulation. To the extent that EPA does proceed with changes to 

that rule, they should be focused on issues where there is a clear need to clarify the 

existing requirements. In making changes, EPA needs to ensure that it is not infringing 

on the States’ primary role in setting water quality standards under the Clean Water Act. 

EPA also should make sure that it does not unduly restrict the use of available Act 

mechanisms, such as Use Attainability Analyses (UAAs) and variances, which are 

needed so that water quality standards and permit limits are appropriate and attainable. 

II. ANTIDEGRADATION 

The WQS Regulation currently requires States to identify the methods that they 

are using to implement their antidegradation policies. EPA is considering making two 

changes in that provision: (1) to specify minimum elements that must be included in the 

State’s antidegradation implementation procedures; and (2) to provide that the State’s 

implementation procedure must be adopted into the State’s water quality standards and 

then submitted to EPA for approval. We have concerns about both of these requirements. 

As to the “minimum elements” that a State would apparently have to submit for 

EPA approval, we have several concerns, grounded in the basic structure of the Act. 

Antidegradation is a component of State water quality standards, and States are supposed 

to be able to make their own choices as to how to implement their water quality 

standards. This is particularly so for those States (almost all) that have been delegated 

authority to issue NPDES permits. The only constraint should be that the States may not 

act in a manner that is inconsistent with the Act. Since the Act 

mentions antidegradation only once (in section 303(d)(4)) and provides 
Docket No. EPA-HQ-OW-2010-0606 

September 17, 2010 

Page 3 

no specifics as to what elements must be contained in a State’s antidegradation 

procedures, there is no basis for EPA to require States to implement antidegradation in a 

particular way. We understand EPA’s interest in ensuring that States actually implement 

the antidegradation program, but that is a management concern that can be addressed 

without adding new regulatory requirements. 

To the extent that EPA does decide to specify minimum elements of State 

antidegradation programs, the Agency needs to recognize that there are some aspects of 

those State programs that have proven to be important in ensuring that those programs 

can be implemented in an efficient and effective manner. Any EPA requirements should 

not interfere with States’ ability to make their own decisions as to how to structure their 

programs. For example, many States have adopted “de minimis” levels, so that small 

increases in pollutant loadings do not have to undergo antidegradation review, and the 

State agency can focus its resources on larger projects that can have more impact on 

water quality. In addition, some States have adopted exceptions to antidegradation 

review for particular kinds of projects, where review is unnecessary (since a similar 

review is taking place under another program) or where it is clear that the action being 

planned is of clear social/economic benefit (and therefore would pass antidegradation 

review anyway). An example is an increase in loading due to installation of required air 

pollution control equipment; it would be environmentally counterproductive to refuse to 

allow a facility to install measures needed to comply with the Clean Air Act because it 

has to go through antidegradation review for a small loading increase to an unimpaired 

waterbody. These exceptions and “de minimis” levels are critical to development of a 

properly functioning State antidegradation program, and EPA should not hamper States 

from developing these aspects in the manner that makes the most sense for their 

particular situations. 

In addition to possibly specifying minimum elements for State antidegradation 

programs, EPA also suggests that it could require States to adopt their antidegradation 

procedures into the State water quality standards, and then submit those procedures for 

EPA approval. The FWQC strongly disagrees with imposition of such a requirement. In 

the first place, we see no legal basis for EPA to dictate how States (particularly NPDES 

States) should implement their water quality standards. The Star-Kist decision indicates 

that these are State choices. Some States currently implement antidegradation through 

rules, and others use guidance instead. In some cases, that decision is affected by State 

laws that must be met. As long as the program is being implemented, it should not be an 

EPA concern whether it is done under a State rule or a State policy or a State guidance 

document. If EPA is seeking State regulations because it can then require that those 

regulations be built into the water quality standards, which then have to be submitted for 

EPA approval, that is a wholly illegitimate way for EPA to attempt to control how States 

develop their antidegradation procedures, through its power to approve or disapprove 
Docket No. EPA-HQ-OW-2010-0606 

September 17, 2010 

Page 4 

State standards. Our concern is that EPA will use this power to make States adopt 

antidegradation provisions that are to EPA’s preference, not the State’s. 

If EPA’s concern is that some States are not currently implementing the 

antidegradation program, the solution is not to impose Federal requirements on all States, 

including those that are implementing their antidegradation standards. Instead, EPA 

should work closely with the States that are not implementing the program, to determine 

why that is the case and to find solutions that will enable the program to be implemented 

in those States. In many cases, we believe that the issue can be addressed by clearer EPA 

guidance that explains the basics of antidegradation and shows States, in a step-by-step 

manner, how antidegradation can be built into their permitting programs in an effective 

and efficient manner. At this time, there is no single EPA document that does that job, 

even though the antidegradation program has been in EPA rules for more than 20 years. 

Before adopting new regulations, EPA should issue adequate guidance along those lines, 

and then determine if anything further is needed. 

III. ADMINISTRATOR DETERMINATIONS 

Under the Act (section 303(c)(4)(B )), EPA can “determine” that a new or revised 

water quality standard is necessary to meet the requirements of the Act. If such a 

determination is made, EPA has to adopt a new standard in place of the State. EPA is 

considering clarifying that a “determination” that triggers that requirement must be 

signed by the Administrator or their duly authorized representative, and must state that it 

constitutes a “determination” under section 303(c)(4)(B). The FWQC supports this 

clarification, which we think is only logical. Before a statutory obligation is triggered, it 

should be clear that the Agency actually intended to make the finding that created that 

obligation. No one should be able to claim that by some offhand factual statement in an 

Agency report or letter, EPA made a “determination” that requires it to take over a State’s 

responsibilities and adopt new water quality standards, which will eventually be 

implemented in binding limitations in NPDES permits. That kind of attempt to “game 

the system” should not be allowed, and the clarification suggested by EPA should stop 

that from happening in the future. 

IV. DESIGNATED USES 

EPA is considering clarifying several aspects of the provisions of the WQS 

Regulation that address designated uses. Among those changes, EPA may provide that 

designated uses reflecting the section 101(a) goals (“fishable/swimmable”) are presumed 

attainable unless otherwise demonstrated, and that those uses can only be changed based 

on a UAA. The FWQC understands that this action would codify the policy that EPA has 

always held. Our concern is that this policy has led to States having to treat waters as 

fishable/swimmable, and then having to adopt standards, TMDLs and 

permit limits based on that presumption, even though those waters 
Docket No. EPA-HQ-OW-2010-0606 

September 17, 2010 

Page 5 

clearly have no capability to meet the fishable/swimmable uses and never will have that 

capability. The only way to avoid that result is for States to do detailed UAAs to justify 

less stringent uses, and no States have the resources to do that work for the many waters 

that should have uses other than “full fishable/swimmable.” The result is an enormous 

waste of resources on trying to meet standards that cannot be met, which would be better 

spent on focused plans to have each waterbody meet the uses that are appropriate and 

attainable. 

 We understand that EPA’s response to our concern over unattainable uses is that 

the UAA process exists. However, our experience is that that process is underused, 

partly due to confusion and misunderstanding over when it can be used and how it should 

be applied. While EPA has issued some guidance in this area, that action has not been 

sufficient to help the States implement this program in the manner that is needed. 

Therefore, if EPA is going to retain and codify its presumption that waters are 

“fishable/swimmable” (which we do not believe is legally supported), it is essential that 

the Agency also take steps to ensure that the UAA program will function effectively to 

help States adopt the right uses for each waterbody – uses that are both scientifically 

defensible and technically and economically attainable. At the same time, it would also 

be helpful for EPA to clarify when States can make changes in their designated uses 

without having to conduct a UAA. For example, EPA has previously indicated that 

States may “refine” their uses (for example, change from “recreational” to “powerboating”) without having to go through the UAA process. That flexibility in defining 

uses is important, and EPA should ensure that States retain the ability to take that kind of 

action. 

V. VARIANCES 

Under the WQS Regulation, States can adopt variances as one of their 

mechanisms for implementing water quality standards. EPA is considering adding 

requirements “to ensure proper use of variances and reduce the possibility of 

inappropriate use.” This statement is fairly vague, and EPA cites no specific examples of 

variance misuse. We understand that the Agency is focused on issues such as ensuring 

that variances have expiration dates, and that sources subject to variances make progress 

toward reducing loadings during the term of the variance. We understand EPA’s concern 

in those areas, and are interested in working with EPA to make sure that those concerns 

are addressed. However, it is important to view those issues in a broader context, in 

terms of the role that variances can and should apply under the Act. 

Variances are an extremely important regulatory tool for States to have available, 

and it will become even more critical in the future. States and EPA are increasing their 

efforts to impose stringent water quality-based effluent limits in NPDES permits. In 

many cases – particularly when “fishable/swimmable” uses apply – 

those limits will not be possible to attain. In some cases, they are 
Docket No. EPA-HQ-OW-2010-0606 

September 17, 2010 

Page 6 

physically possible to meet, but only by incurring control costs that are outside of the 

financial capability of the businesses or communities that would have to meet them. In 

other cases, it may be possible in the long-term to meet the limits, but at the time that the 

permit is issued, there is simply no way to guarantee that they will become attainable at 

some point in the future. In all of these situations, it would be helpful to be able to issue 

variances, so that the sources are able to stay in compliance with their permits while they 

are working to reduce their discharges toward the applicable standards. However, EPA 

guidance on variances has been fragmentary and inconsistent. To ensure that the 

mechanism is used when it should be, and is used appropriately, EPA should consider 

issuing guidance that clearly explains the situations in which variances can be used, 

encourages the issuance of variances in those situations when requested by the permittee, 

and provides basic elements of how variances should be issued, without dictating the 

specifics that States can develop for themselves. 

VI. TRIENNIAL REVIEW 

EPA is considering clarifying several aspects of the process by which States 

review their water quality standards, which is supposed to occur every three years. There 

are two changes being contemplated. One would require States to request and consider 

public comments on the scope of the review. The FWQC supports that concept. The 

other change would require States to evaluate, when they do their triennial reviews, 

whether their existing water quality criteria are still protective of designated uses. We 

have no problem with such a requirement, as long as it is not one-sided. In other words, 

if States are going to review their criteria relative to the designated uses, they should 

review both whether the criteria are stringent enough, and whether the criteria are too 

stringent – whether they go beyond the level that is needed to protect the uses.1

 In 

addition, the State should assess whether the criteria remain scientifically defensible. If 

new information shows that the criteria are no longer defensible, the criteria should be 

changed (no matter in which direction the change moves them). These measures would 

help ensure that at any point in time, State water quality criteria are set at the levels 

needed to protect the uses that have been designated – which, as noted above, need to 

also be appropriate and attainable. When that is accomplished, public and private 

resources can be focused, in an effective and efficient manner, on those water quality 

issues that truly need to be addressed and which can be practically remedied. 

VII. UPDATES TO REFLECT COURT DECISIONS 

EPA has suggested several revisions of the WQS Regulation that it believes are needed to 

address court decisions. While the FWQC has no problem with the basic concept of 

 1

 (The same is true of the uses themselves: during the triennial review process, the State should evaluate the 

designated uses to determine if, based on current information, it is reasonable to expect that they can be 

attained. If not, they should be revised, through the UAA process.) 
Docket No. EPA-HQ-OW-2010-0606 

September 17, 2010 

Page 7 

revising rules when needed to address judicial rulings, we do have some concerns 

regarding the particular changes that EPA has discussed in the Notice. 

 The first issue discussed in the Notice relates to the definition of “water quality 

standards.” EPA is considering revising that definition “to reflect the results of and 

EPA’s actions on remand from” the 11th Circuit Court of Appeals decision in Florida 

Public Interest Research Group Citizen Lobby, Inc. v. EPA, 386 F.3d 1070 (11th Cir. 

2004) (“Florida PIRG”). That statement is vague; for the FWQC to respond adequately, 

we need the Agency to clarify its intended course of action. The Notice appears to be 

referring to two discrete events that will influence the shape of EPA’s revisions to the 

WQS Regulation: the Court of Appeals ruling in Florida PIRG, and EPA’s action on 

remand from that ruling. We have strong concerns about the Court ruling. As to EPA’s 

action on remand from that ruling, we need a clearer understanding of how the rationale 

for those specific actions might be applied nationally. 

The Court of Appeals decision in Florida PIRG required that certain aspects of a 

State’s process for listing impaired waters (under Section 303(d) of the Act) must be 

adopted as part of the State’s water quality standards and submitted to EPA for approval. 

We believe that that case was wrongly decided, and its holding should not be 

incorporated into national rules. Under that Court’s holding, we are concerned that any 

part of a State’s 303(d) listing process will have to be submitted for EPA approval as a 

water quality standard, if it has the result of moving any waterbody off the list of 

impaired waters. That ruling is an unwarranted interference with the ability of States to 

make their own decisions as to how to implement their water quality standards, and to 

establish their own decision criteria as to when a given dataset is adequate to make a 

determination that a waterbody does not meet those standards. While that ruling may 

apply in the 11th Circuit, there is no reason for EPA to extend it nationally by adding new 

requirements to the WQS Regulation. 

The second legal issue discussed in the Notice concerns compliance schedules. 

EPA is considering specifying that State compliance schedule provisions must be adopted 

as water quality standards and submitted for EPA approval. As we indicated above with 

respect to other issues, we do not agree with subjecting these State decisions to EPA 

judgment. State decisions as to how and when to require compliance with water qualitybased limits are made within the confines of the NPDES permitting process, based on the 

State’s judgment as to how their standards should be implemented. EPA should not be 

able to tell States how to make those decisions. 

EPA appears to believe that this new requirement for EPA approval of State 

compliance schedule provisions is supported by the Star-Kist Caribe decision (In the 

Matter of Star-Kist Caribe, Inc., 3 EAD 172 (April 16, 1990), since that ruling is cited in 

the Notice. However, the Star-Kist Caribe decision makes it clear that 

decisions as to standards implementation, such as the issuance of 
Docket No. EPA-HQ-OW-2010-0606 

September 17, 2010 

Page 8 

compliance schedules, are up to the States to make – not EPA. Compliance schedules are 

allowed, according to that decision, “when the water quality standard itself (or the State’s 

implementing regulations) can be fairly construed as authorizing a schedule of 

compliance.” Thus, the State does not have to put its compliance schedule provisions 

into the standard itself; those provisions can be in the State’s implementing regulations, 

which are not standards and therefore do not need to be submitted to EPA for approval. 

Moreover, according to Star-Kist Caribe, all that is needed in the standard or regulations 

is the clear indication that the State is authorizing the use of compliance schedules; 

details, such as time limits or any other restrictions on compliance schedules, are not 

covered by the Star-Kist Caribe requirement, and are therefore within the province of the 

State, subject to compliance with the Clean Water Act. EPA has no authority to require 

that a State’s detailed compliance schedule provisions be submitted to the Agency for its 

approval. 

The final legal issue cited in the Notice relates to public participation. EPA 

suggests that it could clarify that States must, when submitting new or revised water 

quality standards to EPA, include records of public participation that has occurred at the 

State level, including public comments and State responses. We agree that those records 

should be submitted with any triennial review package. We want to caution, however, 

that receiving these records should not relieve EPA from its obligation to accept and 

consider public input on its own. Under current practices, EPA takes comment when it 

decides to disapprove State standards submissions, but it does not take comment – or 

even notify the public in any way – when it decides to approve a State submittal. It is 

not sufficient to simply rely on the State’s public process, since the State may have made 

changes to the standards in its final submittal that no party will have reviewed, much less 

commented on. So as a basic matter of Administrative Procedure Act compliance, EPA 

needs to develop and implement a procedure whereby it can accept and consider public 

input in reviewing and approving State water quality standards. If States have to be open 

to public participation, then so should EPA. 

VIII. CONCLUSION 

The FWQC appreciates the opportunity to submit these comments on the Notice. 

Please feel free to call or e-mail if you have any questions, or if you would like any 

additional information concerning the issues raised in these comments. 

Fredric P. Andes 

Coordinator 
Docket No. EPA-HQ-OW-2010-0606 

September 17, 2010 

Page 9 

Cc: Peter Silva, EPA 

 Ephraim King, EPA 

Jim Laity, OMB