NACWA Comments on Proposed WQS Revisions

September 22, 2010 

Page 1 of 4

EXECUTIVE COMMITTEE

PRESIDENT

Jeff Theerman

Executive Director

Metropolitan St. Louis

Sewer District

Saint Louis, MO

VICE PRESIDENT

David R. Williams

Director of Wastewater

East Bay Municipal 

Utility District

Oakland, CA

TREASURER

Suzanne E. Goss

Government Relations Specialist

JEA (Electric, Water & Sewer)

Jacksonville, FL

SECRETARY

Julius Ciaccia, Jr.

Executive Director

Northeast Ohio Regional 

Sewer District

Cleveland, OH 

PAST PRESIDENT

Kevin L. Shafer

Executive Director

Milwaukee Metropolitan 

Sewerage District

Milwaukee, WI

EXECUTIVE DIRECTOR

Ken Kirk

September 22, 2010 

Thomas J. Gardner 

Office of Science and Technology (Mail Code 4305T) 

Office of Water 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

Via Electronic Mail: SHPDcomments@epa.gov

Dear Tom, 

The National Association of Clean Water Agencies (NACWA) appreciates the 

opportunity to comment on the U.S. Environmental Protection Agency’s (EPA) 

potential revisions to the water quality standards (WQS) regulations announced in 

a July 30, 2010 Federal Register (75 Fed. Reg. 44930) Notice (Notice). NACWA’s public 

wastewater agency members own and operate treatment plants with National 

Pollutant Discharge Elimination System (NPDES) permits, which often contain 

effluent limitations based on WQS established by the states or EPA. NACWA 

understands EPA’s desire to clarify and include more specificity in its WQS 

regulations in an effort to provide states with more certainty regarding the Agency’s 

review and approval process and to ensure greater consistency in implementation, 

but has concerns with the revisions EPA is currently considering. 

As evidenced by the response EPA received to its July 7, 1998, Advanced Notice of 

Proposed Rulemaking (ANPRM) on the WQS program, including extensive 

comments from NACWA, this issue is critically important as well as extremely 

complex and technical. NACWA believes that EPA should only revise the WQS 

regulations when there is a clear need to modify or clarify existing requirements. 

EPA’s 1998 ANPRM explored the possibility of making more substantial changes to 

the WQS regulations than the current Notice. At that time, NACWA recognized that 

revisions to the WQS regulations could be controversial and suggested that EPA 

convene a formal stakeholder process to resolve the more difficult issues. No 

additional Agency action, however, was taken on the issues raised in the ANPRM. 

Now, NACWA understands that EPA has used the list of more than 100 issues 

identified in the ANPRM process as a starting point for this new effort, culminating 
NACWA Comments on Proposed WQS Revisions

September 22, 2010 

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in the selection of the six issues outlined in the Notice. This selection was based on the implementation of the 

WQS program over the last decade. 

While NACWA agrees with some of the changes EPA is proposing, the Association generally believes that they 

do not warrant significant revisions to the WQS regulations at this time. For most of the areas the Agency is 

targeting, additional guidance to the states, instead of new regulatory provisions, would suffice. NACWA’s 

comments on the six areas highlighted in the Notice are outlined below. 

Antidegradation Implementation Methods 

The Notice indicates that EPA is considering modifying the WQS regulations to require that antidegradation 

implementation plans meet specific minimum requirements and be adopted into state WQS, thereby subjecting 

those plans to EPA review and approval. EPA, in the Notice and in subsequent meetings with stakeholders, has 

expressed concern that certain states have insufficient procedures for ensuring their antidegradation policies 

are implemented. NACWA understands EPA’s desire to ensure the states implement their antidegradation 

programs, but NACWA believes such issues can and should be addressed without making any regulatory 

changes. NACWA believes that EPA should focus its efforts on those states that the Agency has identified as 

having insufficient implementation procedures in place, rather than changing the rules for all states.

NACWA members have expressed concern over the proposed changes, fearing that they will lead to less 

flexibility in their states, not necessarily more consistent implementation. If EPA does pursue regulatory 

changes in this area, NACWA believes that any Agency requirements must not interfere with the ability of states 

to make their own decisions as to how to structure their antidegradation programs. Those states that have 

established antidegradation policies and robust implementation must be allowed to continue these programs, 

including any special provisions they may have developed. For example, many states have adopted “de 

minimis” levels or antidegradation exceptions that exempt insignificant new or increased discharges from 

antidegradation review. These types of provisions are crucial given the time-consuming, resource-intensive 

nature of the technical and economic analyses involved in a full antidegradation review. States must have the 

flexibility to develop and incorporate these types of provisions as appropriate. 

Administrator’s “Determination” 

As EPA describes in the Notice, the Clean Water Act (CWA) provides the EPA Administrator the authority to 

determine whether a new or revised WQS is necessary in a particular state or states to meet the requirements of 

the CWA (Section 303(c)(4)(B)). If such a determination is made, EPA must adopt a new standard to replace 

the state standard. EPA is considering clarifying that such a determination must be signed by the 

Administrator or his/her duly authorized designee, and must include a statement that the document 

constitutes a determination under section 303(c)(4)(B) of the CWA. NACWA supports this clarification. It is 

important that general statements in EPA guidance or policy memoranda are not misinterpreted or 

misconstrued as official Agency determinations under Section 303(c)(4)(B) triggering EPA’s duty to take over a 

state’s responsibilities and adopt new water quality standards. 

Designated Uses 

NACWA understands that EPA’s proposed regulatory changes regarding designated uses are intended to codify 

the Agency’s long-established policy that the CWA’s ‘fishable/swimmable’ goals are presumed attainable unless 

otherwise demonstrated. The key to demonstrating that ‘fishable/swimmable’ goals are not attainable is the 

use attainability analysis (UAA). Currently, however, UAAs are underutilized due to the resources they demand 
NACWA Comments on Proposed WQS Revisions

September 22, 2010 

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and the negative perceptions they elicit from the environmental NGO community. This has led many states to 

treat waters as fishable/swimmable and develop standards, TMDLs and permit limits, even though those waters 

are incapable of achieving those uses. EPA must do more to ensure that states can use UAAs to ensure a use is 

appropriate before resources are committed to develop water quality standards, TMDLs, and permit limits. 

EPA is also considering clarifying that the ‘highest attainable use’ closest to the ‘fishable/swimmable’ goal be 

adopted if fishable/swimmable is unattainable. EPA has explained that one of its top concerns here is that 

many states have removed uses that they have deemed unattainable, without replacing them with uses that are 

attainable. In meetings with stakeholders, EPA has indicated that they want to encourage the utilization of 

tiered uses, so that, for example, if a waterbody cannot meet a “cold water fishery” use, it might still be able to 

meet a “warm water fishery” use, rather than declaring the aquatic life use as unattainable. NACWA believes 

EPA should encourage this type of use refinement or sub-categorization and should clarify when states can 

make such changes in their designated uses without having to conduct a full UAA. There remains significant 

uncertainty regarding the concept of ‘highest attainable use’ and NACWA believes EPA should collect more 

input from stakeholders before pursuing any regulatory changes. 

The issue of designated uses is at the foundation of EPA’s entire CWA program. For water quality standards, 

TMDLs, and water quality-based effluent limits to work, the entire system must be based on accurate and 

attainable uses. Otherwise, resources are wasted trying to meet standards that cannot be attained. If EPA is to 

codify the ‘fishable/swimmable’ use presumption, then it is essential that EPA also take the necessary steps to 

ensure that the UAA program will function effectively to help states adopt the right uses for each waterbody. 

Variances 

EPA’s Notice indicates that it is proposing changes to address concerns from the states regarding the 

appropriate use of variances. These changes are intended to ensure that sources subject to a variance make 

progress toward reducing loadings during the term of the variance and that variances have an identified end 

date. EPA has also stated that its proposal to establish regulatory requirements will increase the use of 

variances by reducing uncertainty among the states over how they can be appropriately approved. 

Again, NACWA believes that EPA’s concerns regarding variances can be best addressed via guidance, not 

regulatory changes. Variances are very situation-specific and attempting to overlay minimum federal 

requirements will likely inhibit their use. Instead, EPA should look for ways to ensure states know when and 

how to use variances and provide guidance, not strict regulatory conditions or limits, on how to best 

demonstrate continued progress or determine an appropriate expiration date. 

Triennial Reviews 

Under current federal regulation, states are required to review their water quality standards at least every three 

years, and modify standards or adopt new standards as appropriate. NACWA agrees with EPA’s proposal to

clarify that states must solicit and consider public comments in determining the scope of each triennial review. 

Furthermore, NACWA believes that it is appropriate during the triennial reviews to evaluate whether existing 

water quality criteria continue to be protective of, or are more stringent than, necessary to protect designated 

and existing uses. This evaluation should be conducted as part of a comprehensive review that carefully 

examines, based on sound science, whether existing criteria are either inadequate or overly conservative. At the 

same time, very real state resource limitations must be considered in determining how to best use these 

resources. 
NACWA Comments on Proposed WQS Revisions

September 22, 2010 

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Updates Based on Court Decisions 

EPA has indicated that it may make changes to the WQS regulations to reflect what it believes are needed 

updates based on past legal decisions. With regard to possible changes regarding the definition of “water 

quality standards” based on 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), NACWA takes no position at this time on this possible 

change but will reserve judgment until actual language outlining the proposed change is put forth by EPA. 

Additionally, NACWA has no objections at this time to the proposed change suggested by EPA based on the 10th

Circuit Court of Appeals decision in City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), regarding 

submission of state public participation records related to reviewing and revising state water quality standards. 

We would also note that such a change would not absolve EPA of its own responsibility to seek and consider 

public comments when reviewing and making decisions about state water quality standards. 

However, NACWA does have significant concerns with EPA’s proposed change to require federal approval of 

state compliance schedules for implementing water quality-based effluent limits in NPDES permits and would 

strongly object to any efforts by EPA to make such a change. Furthermore, NACWA believes that EPA’s reliance 

on the Star-Kist Caribe (In the Matter of Star-Kist Caribe, Inc., 3 EAD 172) to justify federal review of these 

compliance schedules is misplaced. In fact, the Star-Kist Caribe decision clearly found that compliance schedules 

are to be dealt with solely by the states and not the federal government, holding that these schedules are “purely 

matters of state law, which EPA has no authority to override,” Star-Kist, 3 EAD 172. It is NACWA’s position that 

EPA does not have the authority to require states to submit compliance schedule provisions to the Agency for 

approval. 

* * * 

Again, NACWA appreciates the opportunity to comment on EPA’s potential revisions to the water quality 

standards regulations. Please contact me at 202/833-9106 or chornback@nacwa.org if you have any questions or 

would like to discuss further. 

Sincerely, 

Chris Hornback 

Senior Director, Regulatory Affairs