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 (N ACWA) appreciates the opportunity to comment on the U.S. Environmental Pr otection 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) perm its, which often contain effluent limitations based on WQS established by th e states or EPA. NACWA understands EPA’s desire to clarify and include mor e specificity in its WQS regulations in an effort to provide states with mor e certainty regarding the Agency’s review and approval process and to ensure greater c onsistency in implementation,

but has concerns with the revisions EPA is currentl y considering.

As evidenced by the response EPA received to its Ju ly 7, 1998, Advanced Notice of Proposed Rulemaking (ANPRM) on the WQS program, inc luding extensive comments from NACWA, this issue is critically impor tant as well as extremely complex and technical. NACWA believes that EPA sho uld 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 controver sial 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 o f more than 100 issues identified in the ANPRM process as a starting point for this new effort, culminatingNACWA Comments on Proposed WQS Revisions September 22, 2010 Page 2 of 4

in the selection of the six issues outlined in the Notice . This selection was based on the implementation o f 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 reg ulations at this time. For most of the areas the A gency is targeting, additional guidance to the states, inste ad of new regulatory provisions, would suffice. N ACWA’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 WQ S regulations to require that antidegradation implementation plans meet specific minimum requirem ents and be adopted into state WQS, thereby subject ing those plans to EPA review and approval. EPA, in th e Notice and in subsequent meetings with stakeholders, has expressed concern that certain states have insuffic ient 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 sh ould be addressed without making any regulatory changes. NACWA believes that EPA should focus its efforts on those states that the Agency has identif ied as having insufficient implementation procedures in pl ace, rather than changing the rules for all states.

NACWA members have expressed concern over the propo sed changes, fearing that they will lead to less flexibility in their states, not necessarily more c onsistent implementation. If EPA does pursue regul atory changes in this area, NACWA believes that any Agenc y 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 imp lementation must be allowed to continue these progr ams, including any special provisions they may have deve loped. For example, many states have adopted “de minimis” levels or antidegradation exceptions that exempt insignificant new or increased discharges fr om antidegradation review. These types of provisions are crucial given the time-consuming, resource-inte nsive nature of the technical and economic analyses invol ved 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 Admini strator the authority to determine whether a new or revised WQS is necessary in a particular state or states to meet the requir ements of the CWA (Section 303(c)(4)(B)). If such a determi nation is made, EPA must adopt a new standard to re place 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 o r policy memoranda are not misinterpreted or misconstrued as official Agency determinations unde r Section 303(c)(4)(B) triggering EPA’s duty to tak e over a state’s responsibilities and adopt new water qualit y standards.



### Designated Uses NACWA understands that EPA’s proposed regulatory ch anges regarding designated uses are intended to cod ify the Agency’s long-established policy that the CWA’s ‘fishable/swimmable’ goals are presumed attainable unless otherwise demonstrated. The key to demonstrating t hat ‘fishable/swimmable’ goals are not attainable i s the use attainability analysis (UAA). Currently, howev er, UAAs are underutilized due to the resources the y demandNACWA Comments on Proposed WQS Revisions September 22, 2010 Page 3 of 4

and the negative perceptions they elicit from the e nvironmental NGO community. This has led many stat es to treat waters as fishable/swimmable and develop stan dards, TMDLs and permit limits, even though those w aters 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 devel op water quality standards, TMDLs, and permit limit s.

EPA is also considering clarifying that the ‘highes t attainable use’ closest to the ‘fishable/swimmabl e’ 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 tha t are attainable. In meetings with stakeholders, EPA has indicated that they want to encourage the utilizat ion of tiered uses, so that, for example, if a waterbody c annot meet a “cold water fishery” use, it might sti ll be able to meet a “warm water fishery” use, rather than declar ing the aquatic life use as unattainable. NACWA be lieves 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 signi ficant uncertainty regarding the concept of ‘highest attai nable use’ and NACWA believes EPA should collect mo re input from stakeholders before pursuing any regulat ory changes.

The issue of designated uses is at the foundation o f EPA’s entire CWA program. For water quality stan dards, TMDLs, and water quality-based effluent limits to w ork, the entire system must be based on accurate an d attainable uses. Otherwise, resources are wasted t rying to meet standards that cannot be attained. I f EPA is to codify the ‘fishable/swimmable’ use presumption, th en it is essential that EPA also take the necessary steps to ensure that the UAA program will function effective ly to help states adopt the right uses for each wat erbody.



### 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 in tended to ensure that sources subject to a variance make progress toward reducing loadings during the term o f the variance and that variances have an identifie d end date. EPA has also stated that its proposal to est ablish regulatory requirements will increase the us e 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-s pecific and attempting to overlay minimum federal requirements will likely inhibit their use. Instea d, EPA should look for ways to ensure states know w hen and how to use variances and provide guidance, not stri ct regulatory conditions or limits, on how to best demonstrate continued progress or determine an appr opriate expiration date.



### Triennial Reviews Under current federal regulation, states are requir ed 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 publi c comments in determining the scope of each trienni al review. Furthermore, NACWA believes that it is appropriate during the triennial reviews to evaluate whether ex isting water quality criteria continue to be protective of , or are more stringent than, necessary to protect designated and existing uses. This evaluation should be condu cted as part of a comprehensive review that careful ly examines, based on sound science, whether existing criteria are either inadequate or overly conservati ve. At the same time, very real state resource limitations mus t be considered in determining how to best use thes e

resources.NACWA Comments on Proposed WQS Revisions September 22, 2010 Page 4 of 4



### Updates Based on Court Decisions EPA has indicated that it may make changes to the W QS regulations to reflect what it believes are need ed updates based on past legal decisions. With regard to possible changes regarding the definition of “w ater quality standards” based on the 11 th Circuit Court of Appeals decision in Florida Public Interest Research Group Citizen Lobby, Inc. v. EPA , 386 F.3d 1070 (11 th Cir. 2004), NACWA takes no position at this time o n this possible change but will reserve judgment until actual langu age outlining the proposed change is put forth by E PA. Additionally, NACWA has no objections at this time to the proposed change suggested by EPA based on th e 10 th Circuit Court of Appeals decision in City of Albuquerque v. Browner , 97 F.3d 415 (10 th Cir. 1996), regarding submission of state public participation records re lated to reviewing and revising state water quality standards. We would also note that such a change would not abs olve EPA of its own responsibility to seek and cons ider 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 o f state compliance schedules for implementing water q uality-based effluent limits in NPDES permits and w ould strongly object to any efforts by EPA to make such a change. Furthermore, NACWA believes that EPA’s r eliance

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 t he 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 t o submit compliance schedule provisions to the Agen cy for approval.

* * * Again, NACWA appreciates the opportunity to comment on EPA’s potential revisions to the water quality standards regulations. Please contact me at 202/83 3-9106 or chornback@nacwa.org if you have any questions or

would like to discuss further.

Sincerely,

Chris Hornback Senior Director, Regulatory Affairs