Page 1 BOARD OF DIRECTORS

Jon McNussen President

Charles Goodall Treasurer

Eric Freyfogle Secretary

Maggie Bruns

Clark Bullard

Dan Deeb

Jean Flemma

Jason Lindsey

Joe Petry

Michael Rosenthal PRAIRIE RIVERS NETWORK

1902 Fox Drive, Suite G Champaign, Illinois 61820

217 / 344-2371 217 / 344-2381 fax

www.prairierivers.org

September 9, 2010

Via email to SHPDcomments@epa.gov

Thomas J. Gardner Office of Science and Technology (Mail Code 4305T) Office of Water U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington, D.C. 20460

Re: Comments on HQ-OW-2010-0606, EPA Proposal to Revise Water Quality Standards

Dear Mr. Gardner:

These comments are submitted on behalf of Prairie Rivers Network, a non-profit, membership-based organization in Illinois with a long history of participation in water quality standards issues and Clean Water Act permitting in the state of Illinois. Prairie Rivers Network is also a member of the Mississippi River Collaborative.

We thank Administrator Lisa Jackson and A ssistant Administrator Peter Silva for the Coming Together for Clean Water initiative and for the agency’s recognition of the need for a new “leap forward” in water quality. As you no doubt know the lack of federal regulatory control over non-poi nt sources of pollution and state political and budgetary constraints have stalled earlier advances in clean water. Confusion over the scope of the Clean Water Act and over the proper means of implementing antidegradation policy has also interfered with progress.

I.

EPA must create stronger programs to control pollution from row crop agriculture and should create incentives for the establ ishment of effective nonpoint programs.

The purely voluntary approaches that have been used with regard to most agricultural pollution have failed miserably. The result is th at agriculture is the primary source for the nutrient and sediment pollution and habitat lo ss that the 2010 draft Clean Water Strategy identifies as among the most seri ous water quality challenges.Page 2 EPA must do more to addre ss nonpoint pollution. Strengtheni ng the “reasonable assurance” requirement of TMDL implementation is a step that EPA can take under its existing authority without delay. In addition, the threat of EPA promulgation of numeric nutrient standards should be used against states that fail to develop effective nonpoint programs.

EPA and Congress should create incentives for states to do more to control nonpoint pollution using the TMDL program and by providing more federal aid for states with sound nonpoint

programs. II.

EPA can strengthen antidegradation implemen tation by amending its regulations to require that state implementation rules include the following:

i) A method for ensuring that existing uses will be maintained and protected. Such method should require a site specific asse ssment of existing uses and specify the necessary steps for fully protecting exis ting uses not protected by the state’s current water quality standards. ii) Provisions allowing public participation in antidegradation reviews early enough in the review to allow for meaningful i nput. In Illinois, public participation is required only during the NP DES comment period, at a time when the major decisions regarding treatment metho dologies have already been made. iii) A requirement that all economically and technically feasible treatment alternatives be fully considered a nd documented, including a procedure for identifying and analyzing such altern atives. EPA should also provide muchneeded guidance to the states on the meaning of these terms and on how an analysis for economic feasibility should be performed. iv) A procedure for performing antidegrada tion reviews on projects requiring 401 certification. In Missouri, the state has a bdicated this role to the Army Corps of Engineers, clearly an unacceptable appro ach. EPA should clarify that the state water protection agencies have a duty to perform their own antidegradation assessments before issuing 401 certifications.

EPA can also strengthen antidegradation by e liminating the waterbody-by-waterbody approach. As in Illinois and Missouri, all states should be required to perform Tier II antidegradation analyses on a pollutant-b y-pollutant basis. A waterbody-by-wate rbody approach that denies Tier II protection because of existing impairments al lows and encourages continued degradation. Please consider a revision of 40 CFR 131.12 (a )(1) to require a parameter-by-parameter approach.Page 3 III. EPA should identify expedited procedures for identifying and correcting state agency
actions that violate the Clean Water Act

Many states are failing to fully implement Clean Water Act requirements. In Illinois, as in many states, the state water pr otection program is failing to implem ent an antidegradation program that adheres to the spirit and intenti on of the federal policy. Existing uses are not being assessed and alternative analyses are often nothing more than paper exercises finding in all cases, a lack of
feasible alternatives. States are also commonly allowing discha rges of pollutants linked to impairments, and are refusing to include water qu ality based effluent limits in permits. There is little if any state enforcement against unaut horized discharges from CAFOs and unpermitted residential sewage systems, and we are hard pressed to find a st ate that actually performs a
triennial review.

EPA should develop an expedited procedure for correcting state programs under 40 CFR § 123 as well as a method of assuming immediate control over state functions when needed to protect water quality.
IV.

EPA should clarify the meaning of waters of the United St ates and insist on wetland avoidance by vetoing permits that fail to prove absence of pr actical alternative

EPA should immediately enact re gulations to reinstate the broa d scope of the Clean Water Act to cover all wetlands that affect interstate comm erce. In tandem, EPA needs to insist that the Army Corps of Engineers comply with the 404(b) Guidelines by re quiring all 404 permit applicants to avoid impacts to a quatic ecosystems where a practical alternative to such impacts is available. The clear regulatory requirement to avoid impacts wherever practical has not been enough. EPA can ensure compliance through exercise of its veto authority. Consistent use of the agency’s 404(c) authority will send an unambiguous message.

Thank you for this opportunity to comment and for your stated commitment to strengthening the nation’s water quality standards.

Sincerely,

Kim Knowles Water Resources Specialist