ACTION ALERT: Comment Now to Help
Improve Water Quality in Your State!
EPA has published its newest strategy
for water quality standards
priorities for the Agency.
The strategy will determine what actions
with regards to water quality standards the Agency
will implement over the
next 5 to 7 years. You
can find view a fact sheet about the
strategy and the actual draft strategy at http://www.epa.gov/waterscience/standards/strategy/.
Many Network members have found their
state agencies and industries
attempting to lower water quality standards in
recent years in order to
appease industrial interests or to avoid listing
a waterbody on the 303d
list of impaired waters. For this reason, commenting
on this strategy and
helping to determine EPA's standards priorities for the
next few years is important to the water quality work
of all Network members. EPA
is under presure from states and industries to
provide greater flexibility in the water quality standards program.
Comments on EPA's Draft Strategy for
Water Quality Standards and
Criteria are due AUGUST 16, 2002
Here's how you can help!
1.) Sign on to the Network letter below
by AUGUST 12. All sign-ons must include your name, organization, city and state
and should be sent to
Merritt Frey at email@example.com.
(We can also send you this
letter as an attachment if needed.)
2.) Or use these comments to develop
your own comments reflecting your
experience with standards in your state.
If you decide to develop your
own comments, please send also send Merritt a copy.
August 16, 2002
Fred Leutner, Chief
Water Quality Standards Branch U.S. Environmental
Protection Agency (4305T) 1200 Pennsylvania Avenue NW
Washington, DC 20460 Dear Mr. Leutner:
This letter contains comments on EPA’s
draft Strategy for Water Quality
Standards and Criteria: Strengthening
the Foundation of Programs to
Protect and Restore the Nation’s Waters of the
[insert #] Clean Water
Network members listed below. The Clean Water Network is an alliance of
over 1,000 organizations that are dedicated to
and enforcing the Clean Water Act. We believe strongly that EPA must focus its attention and resources
on achieving the goals
of the Clean Water Act, not on assisting those
who would weaken its protections.
Many of the comments you see here repeat
views expressed in the
September 21, 2001 letter sent in response to EPA’s
set of questions with
regards to its proposed water quality standards strategy. We have attached
those comments again for your records.
Overall, EPA’s priority on water quality
standards should be helping and
pushing the states and tribes to implement and
enforce water quality
standards regulations. The existing regulations
are sound. We completely agree with EPA’s decision not to pursue regulatory
changes at this time (Draft
Strategy page 9). Moreover, we believe that the regulations
are generally clear and, to the extent guidance
on the regulations is
necessary, EPA has already supplied proper guidance
through the Water Quality Standards Handbook
(2d.Ed.), the Interim Economic Guidance for Water
Quality Standards (April 27, 1995) and other guidance
does need to create and revise criteria documents for
a number of toxins
and other pollutants for which up-to-date criteria do
not now exist.
Further, while EPA guidance is often
important and very useful, we fear
that some of the current calls for new guidance
are being made to put
off taking action to improve water quality during
the period in which such
guidance is drafted. Also, some states and polluter interests
will feign ignorance
about the law and the regulations until they receive an
answer they like. EPA should make certain that
all steps it takes truly
advance the goal of restoring and maintaining the
chemical, physical and
biological integrity of our nation’s waters.
Moreover, part of EPA’s strategy for
water quality standards should be a
recognition that there are limits to a standards-based
approach to water quality.
There is a critical need for updated technology-based
Many of these effluent limits have not been strengthened
for decades despite
the fact that treatment technology has certainly improved. A
number of the nation’s most intractable water quality standards problems can be traced in part to
the failure to update the
For example, sound technology-based
effluent limits for sewerage treatment plants on
phosphorus could obviate much of the debate regarding phosphorus
water quality standards.
Generally, EPA should revisit/update
existing technology-based standards
and develop new technology-based standards for
industries currently operating without such standards (e.g., the
cruise ship industry),
incorporating provisions requiring a decrease in
pollutant discharges over time. As we all know, it is supposed to
be a pollutant discharge
“elimination” system. EPA should require decreasing
pollutant levels over time.
The draft strategy breaks down its recommendations
into five categories and
a time schedule, and our specific comments will follow
the draft in this
Clarifying Program Requirements
For proper implementation by the states
and tribes of program
requirements, there need be little or no clarification.
Rather a great deal
more persistence and fortitude is needed from EPA. Most
the concept of “every three years” set forth in section
303(c) the Clean
Water Act and 40 C.F.R. §131.20(a), does not seem particularly
tricky, most states are not reviewing and holding
public hearings to review
water quality standards in anything like every three years.
Addressing the critical problems in implementing
program requirements will
require frequent and firm use of “federal corrective actions”
such as those alluded
to in the Draft Strategy (page 8). Most often such corrective actions will involve EPA exercising
its duty under Clean Water
Act section 303(c)(4)(B) to promulgate standards necessary
to meet the requirements of the Act. EPA must also act
to assure that states do
not begin to use new standards to grant new permits
before the states have made a complete presentation of the materials
required by 40 C.F.R.
§131.6, and EPA has approved the standards and
general policies affecting implementation of the standards under
Clean Water Act section 303(c)(4) and 40 C.F.R
There are a number of program requirements
for which federal corrective
actions are needed for many states.
The goal to “maintain the chemical, physical
and biological integrity of
the Nation’s waters” is, of course, part of the
first section of the Act.
Federal regulations requiring antidegradation rules have
been in place since
1968. Still, many states do not have any antidegradation
policy or are without effective rules to implement
whatever policy they do have. Other states sharply limit their application
of the policy by only
applying it to a subset of the waters of the state or
through use of significance thresholds or de minimis exceptions.
But water quality cannot
be maintained if degradation is freely allowed of waters
that are less than pristine or if creeping degradation
is permitted through exceptions.
Similarly, many states allow mixing zones
that frustrate the goals of
the Act and EPA should move to establish standards
that sharply limit such
mixing zones. EPA must carefully review state practices
regarding mixing zones and review state permits allowing
mixing zones. Using its
authority under 40 C.F.R. §123.44 , EPA must veto
permits that fail to protect uses in mixing zones should be objected
to by EPA. EPA
should establish mandatory sunset provisions for mixing
zones in permit renewals,
and prohibit the use of mixing zones for bioaccumulative
and persistent toxic pollutants.
Another federal corrective action that
will frequently be needed is to
disallow states’ use designations that do not include
section 101(a)(2) uses if they are or can be attained pursuant
to 40 C.F.R. 131.10(i).
EPA’s regulations, at 40 C.F.R. 131.10(d) and 131.10(h)(2),
are quite clear that a use is considered attainable if
the use can be attained by
implementing reasonable best management practices
for non-point controls.
Still further, EPA should ensure that
all states have adopted criteria
for all priority pollutants.
Specifically this means that EPA must have
sufficient information about the status of states’
criteria, it must inform
states of a short timeline for required action, and it
must be prepared
to promulgate criteria for those states that do not meet
Timelines must be consistent with the statutory
triennial review, taking into account the passage of time
since the state’s
last triennial review and its scope.
Enhancing Implementation Guidance
Looking now beyond the minimum legal
requirements for state and tribal
programs, the issues for EPA, and the states and
tribes, are two-fold.
First, the states and tribes must develop standards
that actually protect designated uses. Second, the states
must develop and use permit
writing procedures that assure that NPDES permits
are not granted and 401 certifications are not made if such permit
or certification might
cause or contribute to a violation of state or
tribal water quality standards. See 40 C.F.R. §122.44(d). While these
latter issues are sometimes
treated as permitting problems rather than as standards problems, they must be considered together.
Sound state standards can be
undercut severely if
the state is writing permits in a manner that has
the effect of countering the protections of the
EPA must have sufficient information
regarding the status of states’
criteria, must require a short timeline for required
action, and be prepared
to promulgate criteria for states that do not meet timelines. Timelines must be consistent with the statutory
requirements of the triennial
review process, taking into account the passage of time
and scope of the state’s last triennial review.
State Standards must protect the most sensitive
Acting through direct communications
to particular states, use of EPA’s
303(c)(4) power to promulgate federal standards,
and disapprove changes in standards that lessen protections, EPA should:
- Make sure that states having broad
use designations develop standards
that fully protect the most sensitive use as required
by 40 CFR
131.11(a). For example, states with a
“general use” category that is to
protect aquatic life must be required to adopt
standards that protect
all of the indigenous aquatic life in the state.
If a state believes that
certain standards can be less strict in parts of the state
because the more
sensitive species do not inhabit waters in the area, the
state must be required
to create use subcategories (e.g. “warm water
- Ensure that standard setting involves
the U.S. Fish and Wildlife
Service and, when applicable, the National Marine
Fisheries Service. EPA
must assure compliance with Endangered Species
Act section 7(a)(1).
- Publish recommended nutrient criteria
for each region of a state,
following the appropriate Ambient Water Quality
document, for every state failing to meet the 2004
deadline for state adoption of standards for nitrogen, phosphorus,
turbidity and chlorophyll
- Reject, as scientifically unjustified
and as failing to protect the
most sensitive use, all proposed changes to standards
that would weaken standards
affecting waters that might contain threatened or endangered
mussels. Current EPA criteria were developed without
data on mussels and
the recent data that has been collected on mussel sensitivity
to toxins indicates
clearly that they are generally more sensitive than the salmonid species that are generally the most
sensitive species currently
used in EPA criteria documents.
- Ensure that states facilitate meaningful
participation by the public
in the triennial review process as well as throughout
all regulatory actions
where standards are applied. Further, state standard setting
officials should be encouraged strongly to consult
with other experts from
government and universities before going forward with
- Promulgate protective standards for
states under section 303(c)(4)
where states have failed to apply site-specific
(BAF) or generic BAF where no site-specific data
are available in a timely manner. If EPA continues to recommend
adoption of 304(a) criteria
that are based on site-specific bioaccumulation
factors, such as the methyl mercury criteria, it must have a timely
plan of action to ensure
that those site-specific factors are available
for use as well as a generic BAF for use where no site-specific data
- Assist states in promulgating criteria
for those pollutants for which
there are no 304(a) recommended national criteria
based on biological monitoring or assessment methods, as required
by section 303(c)(2)(B)
pursuant to section 303(c)(4)(A) of the CWA.
- Integrate drinking water and pesticide
standards into the standard
setting process, as EPA recognizes (Draft
Strategy page 16). In this
regard, EPA should promulgate standards for commonly
used pesticides (e.g.
atrazine) for states if they fail promptly to adopt standards
for such toxins.
Finally, developing national consistency
for criteria should not mean
promoting standards or criteria of the least common
denominator. EPA standards
should be the baseline from which states are required
to adapt criteria
based on background conditions, critical conditions, existing
impairments, and protection of specific uses (e.
g. endangered species)
that are geographically appropriate. EPA must actively
review state criteria
to determine when current criteria should be updated or
if additional criteria are needed, while ensuring
that “criteria consistency”
does not become a mechanism for the adoption of a least
common denominator of protection.
General policies that affect application
or implementation of state
standards must assure that permits are protective.
The way many states now implement their
standards in permit writing and
401 certifications makes clear the limited utility
of federal guidance documents.
The Permit Writer’s Handbook and the Technical
for Water Quality-based Toxics Control (1991) are very
but many states pay little attention to them and pay no
respect to the parts of these documents that they
do not like.
Acting through EPA standard
promulgation under 303(c)(4), disapproval of state standards without proper implementation
rules, and objections
to individual permits under 40 CFR §123.44, EPA
- Ensure states adopt implementation
methodologies for narrative
criteria for toxic chemicals as required by 40
taking into account the additive and/or synergistic
effects of multiple pollutants
(conventional and toxic) as well as sub-lethal effects
of toxic pollutants,
e.g., those that disrupt natural hormone functions. If
states fail to do this, EPA should promulgate rules
-Ensure permit writers appropriately
translate standards into permits
and consider all relevant
parameters such as background pollution levels,
endangered and threatened species, and natural
- For any permit involving a mixing zone,
require proper demarcation of
the zone to assure protection of existing uses.
This will generally require dye studies or other work in the field
rather than the usual
gross estimates made by state permit writers.
EPA should address the
fact that states have been issuing permits with
conditions that require
monitoring for the purpose of establishing scientifically-based
mixing zones and effluent limits over repeated permitting
cycles, with no end in
- Require that states adopt general policies
that mandate proper calculation
of the reasonable potential for a discharge to cause or
contribute to the violation of water quality standards.
States should utilize
the methods prescribed in the Technical Support Document
for Water Quality-based
Toxics Control unless they offer a reasonable scientific rationale for not doing so. The current
practice of some states
of refusing to set permit limits or require adequate toxicity testing should be addressed.
- Require that whole effluent toxicity
is done and that toxicity limits
are placed in permits when toxicity is found. This
is required by 40 C.F.R. §122.44(d)(ii)(V).
- Generally require states to pay greater
attention in permit writing to
background pollution levels, defined impairments,
and endangered and threatened
Strengthening and Maintaining the
Certainly much work is needed by EPA
to develop and update the science
necessary to assure that water quality criteria
are protective of human
health, wildlife and aquatic species. Review of
all 304 criteria is necessary to determine if criteria should be
updated or if additional
criteria are needed.
For example, EPA’s recommended criteria for
petroleum-related hydrocarbons are not protective
of aquatic life, and EPA
needs to revisit its approach to developing criteria for
sediment contamination. EPA should revise the list of priority toxic
to CWA section 307(a)(1), to include high-use pesticides
chemicals for which national recommended 304(a) criteria are needed.
We agree EPA should continue and accelerate
research for improved
bacteria criteria and criteria to limit waterborne
EPA must improve the analytic methods
of Part 136 to assure that testing
for toxins is capable of detecting all violations
of protective water quality
standards. Further, through permit objections and informal means, EPA should ensure states use the most
sensitive analytical methods
during the development of criteria, when testing water
quality to impairments and in setting monitoring requirements
in NPDES permits. In
particular, states must be required to perform mercury
testing using the clean lab methods that allow detection of
mercury down to the levels
known to affect human health.
We agree with the Strategy (Draft Strategy
page 15) that EPA should
encourage applied research on wetlands and various
types of wastewater and
conservation alternatives. The country cannot go on mining groundwater and relying on mechanical wastewater
treatment systems without
depleting our water supplies and destroy natural stream ecosystems. Demonstration projects using wetlands
can be particularly useful.
EPA must develop and finalize sediment
criteria for toxic pollutants. It
should also develop minimum flow and flow pattern
criteria for aquatic life. Further, EPA should continue to support
the development and adoption
of biocriteria to augment (not replace) existing physical
and chemical criteria and whole effluent toxicity
Linking to Watershed Approaches
We agree that standards issues should
be considered in a broad context.
We also agree that more should be done to assure
that drinking water uses
are protected by water quality standards. This work is
particularly needed in light of the facts on atrazine
cited on page 16 of
the Draft Strategy, data on chlorination byproducts and
other recent data
showing that drinking water treatment is not able to eliminate
present in source water.
Regarding inter-jurisdictional differences,
the law is clear that a
state or tribe may not permit pollution that will
cause the violation of
the water quality standards of another jurisdiction.
Arkansas v. Oklahoma, 503 U.S. 91 (1992). The principle
form of coordination that is
needed is to make sure that upstream jurisdictions
are knowledgeable about downstream water quality standards and
to vigilantly work to
assure that permits that cause or contribute to
violations of water quality standards are not granted.
As noted, we agree that biological criteria
are useful and should be
developed and expanded. Biological criteria can supplement the more
enforceable chemical and whole effluent standards.
Building Capacity and Sharing Information
We strongly agree with the statement
made on page 18 of the Draft
Strategy that EPA should be much more involved
in state standard setting
proceedings and should take a greater role in state
water quality standards proceedings. Too often state standards setting proceedings
stumble because of a lack of information that could
have been supplied by
EPA, the U.S. Fish and Wildlife Service or the National
Marine Fisheries Service.
We agree that EPA should act as a clearinghouse
of information for states
and tribes. However, it is also critical that the public
has access to this information. In this regard,
we agree that EPA should
maintain and expand on line services and databases.
Citizen training needs to begin immediately
as is required by the Clean
Water Act. As it stands now, training sessions are too
few in number and
are cost-prohibitive for many citizens and citizen groups.
We ask EPA
to dedicate funding to increasing the number of water
trainings and to fund citizens and part in federal and
Comments on the timeline
The timeline in the strategy is helpful
but in some cases emphasizes a
number of tasks that are of less importance than
other tasks stressed in
this letter. Specifically as to certain items listed
in the schedule we believe:
1.a.:We do not believe that there is
much need to expand the 1995
interim economic guidance. The basic problem is
that the current guidance
is ignored by many states and tribes. The 1995 guidance
does not need to
be expanded so much as publicized and utilized by EPA
in striking down
use attainability analyses that are not economically justified and objecting to permits for new or
increased discharges that
are not truly required to accommodate important
social or economic development.
1.b.: EPA does not need to issue an antidegradation
guidance document. It
does need to promulgate antidegradation rules that protect
all waters as “high
quality” to the extent that they are not impaired and
that do not allow
any “significance threshold” or “di minimis” exemptions
for states that
fail to do so.
1.c.: We strongly support EPA taking
all necessary actions under this section.
2.c.: EPA and its national partners should
develop their joint agreement
on ways to consult on standards, TMDLs and permits
that involve threatened
or endangered species before 2004.
3.b.: We encourage EPA to continue to
provide guidance to states on
developing and implementing nutrient criteria.
However, EPA is behind
on its own original deadline of all states possessing
nutrient criteria in
state standards by 2003.
The current goal of 2004 is not only late,
it is also a very loose deadline that does not
truly require states to
implement these criteria into their standards program
by that date.
3.d.: We recommend that EPA begin working
on minimum flow criteria for
4.b.: We strongly support EPA identifying
gaps where designated uses do
not meet drinking water uses.
5.a.: We believe such early involvement
by EPA, FWS and NMFS does not
occur sufficiently and we encourage EPA and the
other federal agencies
to become much more involved in state standards’
5.d.: We strongly urge EPA to not only
increase the number of water
quality standards trainings, but to conduct trainings
especially for citizens
or public interest groups and to help defray the cost
of attending EPA trainings. Increase the frequency
of water quality standards
trainings, conduct trainings especially for citizens and public interest groups, and help defray the
cost for the public to
attend EPA trainings.
Thank you for considering these comments. If you would like any additional information on the concerns or ideas
presented above, please
contact either one of our Standards Workgroup Co-Chairs:
Albert Ettinger with the Environmental Law and Policy Center
of the Midwest at 312-795-3707,
or Gayle Killam with River Network at 503-241-3506.
Name, organization, state