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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

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 (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 protecting,  strengthening, 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.

General Comments

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 documents.   EPA 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 effluent  limits. 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  technology-based standards.  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 respect.

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 obviously,  although 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 §131.21.  

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 those  timelines.  Timelines must be consistent with the statutory requirement  of triennial review, taking into account the passage of time since the  state’s last triennial review and its scope.

Enhancing Implementation Guidance and Integration

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 standards. 

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 use.

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  fishery”).

- 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 Criteria Recommendations  document, for every state failing to meet the 2004 deadline for state  adoption of standards for nitrogen, phosphorus, turbidity and  chlorophyll a.

- 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 standards  proposals.  

- Promulgate protective standards for states under section 303(c)(4)  where states have failed to apply site-specific bioaccumulation factors  (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 are available.

- 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 Support  Document for Water Quality-based Toxics Control (1991) are very useful  documents, 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 should:

- Ensure states adopt implementation methodologies for narrative  criteria for toxic chemicals as required by 40 C.F.R. §131.11(a)(2),  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 for them.

-Ensure permit writers appropriately translate standards into permits  and consider all relevant  parameters such as background pollution levels, existing impairments,  endangered and threatened species, and natural physical conditions.

- 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 sight. 

- 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 species.

Strengthening and Maintaining the Scientific Foundation

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 pollutants,  pursuant to CWA section 307(a)(1), to include high-use pesticides and  hormone-disrupting 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 diseases.

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 testing.

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 many  pollutants 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 quality  standards trainings and to fund citizens and part in federal and state  trainings.

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  aquatic life.

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’ reviews.

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.




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