Clean Water Program, continued

May 15, 1996

Rob Wood (4305)
Water Quality Standards Branch
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460 VIA FAX:202/260-9830

Re: Advance Notice of Advance Notice of Proposed Rulemaking on Water Quality Standards Regulation

Dear Mr. Wood:

Thank you for the opportunity to comment in advance on the proposed Advance Notice of Proposed Rulemaking. We have attempted to focus our responses on EPA's characterization of issues, rather than our positions on the issues themselves. This has not been an easy thing to do and, although we are grateful for the opportunity to affect the scope and characterization of the ANPRM, we wonder whether future ANPRM commenters won't be sufficiently aware of whatever biases EPA brings to its discussion that they can factor them into their responses.

Page 6, line 5: water quality standards programs are not currently "functional." If they were, EPA would not be facing so many 303(d)(1) implementation (TMDL) lawsuits.

Page 6, line 7: these programs have not formed the "basis" for significant improvements although they might be responsible for some improvements.

Page 6, line 9: why is the interest in watershed management "renewed" as opposed to being new?

Page 6, line 15: what are the "similar outreach discussions EPA is currently undertaking"?

Page 7, line 7: TMDLs are highly flexible so changes in regulations are not necessarily required to achieve desired flexibility.

Page 7, line 16: it is an overstatement to say that parties have gained considerable experience in implementing standards. Most implementation is done using dilution analyses and mixing zones with no consideration to how the regulation of point and non-point sources collectively through TMDLs can actually bring about the achievement of standards.
Page 7, line 25: I disagree that the public shares the view that standards "can be better tailored to the
characteristics, problems, risks and implementation..." Standards are not intended to be waterbody specific, as pointed out by the U.S. Supreme Court in the Jefferson County PUD case. However, the TMDL process has always included as one of its first steps the refining of criteria to ensure that the proper criteria are being applied to a waterbody or watershed at the outset of a TMDL process. In other words, the existing standards and programs already have the flexibility to be tailored to specific needs at the time of application if the EPA and the states would implement section 303(d)(1) and (3) of the Act as Congress intended.

Page 8, line 11: EPA's suggestion that the "broad, statewide use of classifications and lists of associated chemical criteria" is too general suggests that the existing standards programs should be thrown out and either 1) replaced with nothing, thereby undermining the water quality-based approach of the Act, or 2) replaced with very expensive watershed or waterbody standards-setting. Neither the states nor EPA nor resource agencies currently has sufficient information upon which to base more specific criteria. Moreover, in order to do so, precious financial resources would have to be diverted from what little the regulatory agencies are investing in actually trying to implement standards to clean up the nation's waterbodies. As it is, states cannot promulgate state-wide "broad" standards in a timely fashion; what makes EPA confident that more specific standards could be done in any reasonable timeframe, to say nothing of a comparable timeframe particularly if more data would have to be gathered.

It has always been contemplated that a process such as a TMDL could be used to refine criteria (whether numeric, narrative, pseudo-technical (e.g. BMPs), and/or biological) at the time of application. Most criteria I have ever seen merely set a minimum goal of protecting beneficial uses. I cannot remember seeing criteria that were likely overprotective but even that could be addressed in the initial stages of a TMDL. EPA is viewing the standards program as having been implemented and now it is time to tinker with how to make it work better. The problem is that it has not been implemented because very few TMDLs have been done across the country. TMDLs are the Act's mechanism for implementing water quality standards. This system should not be abandoned in favor of a new system until it is actually tried.

Page 8, line 15: the reason for a "historical lack of information on specific basins or waterbodies" is largely because neither the states nor EPA has undertaken the regulatory actions required by section 303(d), namely TMDLs. If TMDLs were done, not only would regulatory agencies begin collecting needed and valuable information but so would citizens and at least some polluters, in whose interest it might be to "share the load" of pollution reductions with non-point sources.

Page 8, line 20: when EPA starts talking about how use attainment should be altered in order to "reflect natural and human caused changes in water quality" it suggests that EPA is talking about a huge rollback in the standards programs. Use attainability analysis already exists where uses cannot be attained. States can and do incorporate in their water quality standards provisions that make natural levels supersede criteria. And, if EPA is able to successfully promote its view that existing uses don't exist where human cause changes to water quality have impaired the uses, as discussed below, there won't be much need to worry about any of this.

Page 9, line 6-11: none of these tools are precluded from use now.

Page 9, line 14: the phrase "locally agreed upon goals" suggests that local interests can agree to provide less protection of beneficial uses than otherwise required. This defeats the idea that EPA will provide the consistency needed nationwide to meet the goals of the Act.

Page 10, line 3: this statement suggests that the current standards program protects water quality in a way that does not make "sense." Having been intimately involved with Oregon's 1992-96 triennial review, it is clear to me that there is sufficient flexibility in the regulations to accommodate the real world. Moreover, the problem with the standards program is not that it doesn't make sense, it is that it is not fully implemented in the way Congress intended: namely 303(d) (1) and (3).

Page 10, line 22: the statement that standards regulation should result in "reasonable compliance costs" for polluters and "reasonable implementation costs" for regulatory agencies suggests that EPA is intending to roll back what little water quality-based regulation we have. The Act sets the same goals that the public at large wants: water clean enough to support healthy fish and wildlife and clean enough to drink and in which to recreate. Reasonable compliance costs are built into the technology-based approach; the water quality-based approach requires what is necessary to meet the protection goals. And, how do you measure "reasonable compliance costs"?

Page 10, line 23: If the regulatory agencies spent as much time on implementation as they do on fancy 305(b) reports that have little if any utility, revisions of water quality standards and rules, and other bureaucratic nonsense, implementation might actually occur. As it is, the regulatory agencies including EPA do everything up to the point at which the Act requires taking the steps to actually clean up polluted waterbodies. The issue is not "reasonable implementation costs;" the issue is implementation, period. Is this code for "no TMDLs"?

Page 11: It is our view that if EPA would help states learn how to carry out existing regulations, we would see water quality improvements. If EPA would illustrate by doing TMDLs, states would have models to strive for. None of this requires changing regulations or even providing more guidance. It does require actually using existing regulations and guidance. There is no substitute for being able to point to an actual high quality example.

Page 14, line 18: water quality standards should be a fundamental component of watershed management. It is a stretch to say that they are currently.

Page 17, line 9: it is interesting that EPA notes the Congressional impatience with lack of progress in State adoption of standards for toxic constituents but says nothing about what Congress said in 304(l) which was that it was impatient with lack of progress in cleaning up toxics. The authors of this ANPRM need to understand and address the fundamental problem with the water quality standards program: the lack of implementation. Moreover, 304(l) should have been carried out through the use of 303(d) TMDLs, yet with the exception of the EPA-promulgated Columbia River Dioxin TMDL, we are not aware of any TMDLs that were used to develop Individual Control Strategies (ICS) for the reduction of toxic discharges.

Page 26, line 3: in our opinion, standards are important for more than "calculating" TMDLs but are necessary for implementing them as well. TMDLs should not be seen as a paper exercise but a method of implementing the standards and protecting the beneficial uses.

Page 29, lines 23-25: all of these items can be accomplished through guidance.

Page 31, line 9: please note what these pressing issues are because we can only guess. How can a commenter decide whether the regulations need to be changed or updated to address pressing issues we don't know about?

Page 31, line 16: the problem with EPA is its desire to eat its cake and have it too: you can't have flexibility and consistency at the same time. Neither, however, is precluded by the regulations as they are currently written. EPA could achieve changes in either direction through guidance and by setting expectations for states.

Page 32, line 6: EPA also has other ways of helping in addition to "guidance" and "policy," namely 1) learning by doing, and 2) better exchanges of information. In the first category, for example, would be if EPA did more TMDLs which it could distribute widely to show states how to do them and how to cope with the problems that arise in interpretation, evaluation and implementation of standards through TMDLs. In lieu of guidance, such examples could be circulated with cover memos that highlight the important aspects of how EPA did the TMDLs. With regard to the second method, states struggle to get information about how to write standards to address real world problems that the regulations perhaps did not contemplate. More useful than new regulations or guidance would be the results of other states' work. For example, in Oregon's 1992-94 triennial review, the state published a fairly comprehensive work on the effect of temperature on cold water fish. This should be widely distributed. On the other hand, Oregon staff have had difficulty obtaining other states' mixing zone rules. Often when states seek information on setting standards and developing rules it is difficult to obtain examples and information about other states' work.

Page 35, line 25: what applications are other than "site specific" except compiling the information for reports such as 305(b)? Any implementation is "site specific."

Page 36, line 10: We assume that the comment "beyond chemical contaminants" means including chemical contaminants. There is a trend, which EPA seems to be embracing, towards avoiding and/or ignoring the chemical criteria in favor of, rather than in addition to, biological measurements. The result is the abandonment of a system that can work, even if imperfectly, in favor or a system that has yet to be put together. An example is a large study done in Oregon on toxic contaminants in the Willamette River. There, the emphasis was put on evaluating fish health but at the end of the study the state had no data on chemical residues in fish tissue to compare to existing standards and guidelines. It did have measures of fish health, such as percentages of fish with skeletal deformities, which it had no way to evaluate because it had no criteria to tell it whether those percentages were "natural" or problematic. Moreover, even if there were criteria on fish skeletal abnormalities they would not translate into pollutant load reductions. The ultimate reason for setting standards and monitoring waterbodies is not to gain knowledge about problems but to gain knowledge for the purpose of solving the problems.

Page 38, line 17: we agree that states should clearly articulate the intended level of protection although that could be done through guidance. You might note that there are many ways in which levels of protection can be determined beyond the obvious risk to a life form, such as the geographic range which it protected. For example, in the Oregon 1992-94 triennial review it was agreed that a special criterion for bull trout, which require particularly cold temperatures, should apply to more than its existing range -- to ensure the future of the species -- but less than its original range -- for political reasons.

Page 39, line 23: I object to the use of the word "must" without some qualifier that states and tribes do not currently ensure that criteria are sufficiently protective.

Page 40, line 2: to what "challenges" are you referring? It makes a difference if they are legal, technical, political, etc.

Page 40, line 10: the use of TMDLs to implement water quality standards would force the development of more specific use designations. New regulations are not necessary, merely implementation of existing regulations.

Page 41, line 13: since the phrase "fishable/swimmable" does not appear in the regulations, EPA should not be overly concerned with it. What EPA should do is stop using this phrase to describe interim goals and then there will not be any confusion. I never use this phrase but instead refer to the regulations or the statute. If I can do it, EPA can too.

Page 43, line 14: this sentence refers to regulations not being a "mandate" but the next sentence asks if the regulation should be revised to "promote...[in order to] support." There is a considerable difference between mandate and promote and support and this inconsistency should be fixed.

Page 43, line 19: The phrasing of this question predicts that the answer will be "yes." The fact that everybody might agree that one wants to promote and support things should not lead one to the conclusion that the regulation needs to be revised. The real issue is to what degree revision might change real world promotion and to what degree the existing regulation holds anybody back from doing anything.

Page 43, line 23: to what "implementation procedures" are you referring?

Page 44, line 3: it would be helpful to suggest the types of "factors" you have in mind.

Page 44, line 5: the "appropriate level of protection" is already that which is required in criteria to protect the uses that must be designated. I suspect EPA is suggesting something less stringent but I have great difficulty in understanding the question posed by this paragraph. The fact that EPA has phrased the question in two different ways suggests that you believe the question is obscure. It needs to be clarified.

Page 44, line 10: this question only focuses on aquatic communities in the absence of a "fishery" thereby completely omitting the need to interpret the phrase "aquatic life" to include the piscevorous wildlife (fish-eating birds and mammals) that should also be included.

Second, no changes to regulations or to sub-categories of use need to be made to protect aquatic life in the absence of a fishery. EPA should disapprove any criteria that fail to protect such sub-categories regardless of whether they have been specifically designated. In other words, whether a state chooses not to designate sub-categories or not, EPA should ensure that the state's standards and regulations provide beneficial uses with the necessary level of protection. It will then be in the state's interest to designate sub-categories in order to avoid application of the most stringent criteria where not required.

Page 44, line 16: yes, EPA can disapprove if necessary to clarify or it can send out policy memos.

Page 45, line 3: the use of the word "past" is very confusing. Since EPA means the near-past, i.e. the past dating to 1975, use a different phrase. This comment applies throughout.

Page 46, line 16: you should specifically note that the intent of the regulations is to avoid a purely anthropocentric view of the beneficial uses. The uses deserve protection regardless of human interests.

Page 46, line 23: explain the full implications of the statement that "the existing use is marginal."

Page 47, lines 5-17: We cannot overstate how offensive we find EPA's interpretation of the phrase "existing use." By defining out of the category of uses that are existing, those uses which have been made marginal since 1975 and for which water quality is not sufficient to provide protection, EPA undermines the entire purpose of the water quality-based approach of the Act. Under this interpretation, neither the interim goals nor the ultimate goals of the Act will ever be met. Under this interpretation, we will lock in bad water quality and marginal existence of beneficial uses forever.

Perhaps EPA is seeing this is a handy way to do away with all of the TMDL lawsuits since there won't be any water quality limited waterbodies if all the impaired existing uses and the non-supported existing uses are defined out of existence as "existing uses." EPA should not put out this ANPRM without considering that its view of existing uses is totally inconsistent with the Act and is not shared by all. In fact, I was unable to find anybody in any agency that shared the views put forward by EPA in this document on this subject.

Page 48, line 6: the problem is EPA's view of the role of designating existing uses. So long as EPA takes the position it has on existing uses, I'm not sure that the regulations and standards amount to a hill of beans; why bother? What's left to protect?

Page 48, line 23: again, problems with the use of the word "past."

Page 48, line 25: this example only takes the reader half way. What if the area weren't posted? What is a few? Most important, what is the point? EPA states that the non-designation of an existing use is justified "...more importantly, [on] the lack of suitable water quality to support the use..." Under this view, we could eliminate swimming and salmonid fish as existing uses in Oregon and Washington and be done with implementing 303(d) at all.

If EPA wants something to address, I suggest that it not allow the type of standards approach that has been used in Washington state. There, if a stream has been degraded by human activities, it gets a lower classification than it would have otherwise, and under this lower classification it gets lower levels of protection. This locks in the poor state of water quality and use protection forever rather than setting the goal of restoring the stream to as close to its natural state as possible. In Oregon, streams are designated by the uses that are or should be made of them. If a stream should support salmon, then those criteria apply. To do otherwise, is to thwart the intent of Congress and the will of the American public which wants our waters protected and restored.

Page 49, line 5: If there are different interpretations of EPA guidance it must be because the guidance is not clear. The solution is not to change the regulations. Make better guidance. Having read the antidegradation guidance recently, I would agree that it is not clear.

Page 49, line 12: same comments as above.

Page 49, line 19: what is the regulatory meaning of "potential" use?

Page 49, line 23: what do you mean by "controllable"?

The interpretation is backwards. Use attainability analysis addresses the issue of controllability. Otherwise, the mere fact that the water is too polluted in which to swim does not mean that people do not swim in it or that they should not some day be able to swim in it. Additionally, while some people have choices about where they swim, others do not, and fish and wildlife have no choices at all.

Page 50, line 2: define "in isolation."

Page 50, line 4: I view many things as a continuum, however, I am at a loss as to what you are talking about in this sentence.

Page 50, line 17: One person's view of a stream condition is not necessarily another's. EPA gives lip service to environmental justice some pages hence but here fails to recognize that sometimes poor people swim in what is available. This is particularly true of poor children.

Page 50, line 19: "the greenway provides recreational facilities and access" completely ignores that fact that people don't just swim and wade and fish in designed "greenways." Sometimes they just go to the local, polluted, slough to get what recreation they can.

Page 50, line 20: the regulations should require uses to be designated as if all water quality problems are controllable. If they are not, then use attainability analysis is the regulatory mechanism to address the problem.
Page 51, line 13: what is "no evidence of younger age classes"? Is this no evidence or it is not readily available? What is and where is the burden of proof? What if it was after 1975?

Page 52, line 4: the question is on what side to err?

Page 53, line 21: edit to read, "...to further clarify that in its view the existing use..."

Page 54, line 1: EPA should explain how tier 1 waters are protected at all and how its interpretation meets the interim and final goals of the Act.

Page 54, line 10: change "needed" to "undertaken."

Page 54, line 20: add to the end of the first sentence: in addition to eliminating all impaired uses as existing uses.

Page 54, line 23: the phrase "are attainable" as defined in this document really means are fully present and protected by the existing high water quality etc. Don't use the shorthand "are attainable" when that is not what you mean.

Page 55, line 3: section 301(b) incorporates by reference section 303. See Jefferson County PUD. Of course, this entire interpretation is designed to undermine the U.S. Supreme Court's decision in that case. This ANPRM should elaborate on EPA's interest in doing so.

Page 57, line 2: why are these six factors not encompassing enough?

Page 57, line 12: do it through guidance.

Page 57, line 21: this reference to public health contradicts the earlier discussions of existing uses not being existing unless supported by water quality that meets standards. If you can't reconcile your two positions, at least explain how they are different and why.

Page 58, line 6: maybe EPA could provide a matrix that shows exactly what uses the agency believes should be protected since there are so few. These comments appear to suggest, for example, that if there is a steep canyon, raw sewage could be dumped there with impunity.

Page 58, line 12-14: get real. People recreate in the absence of boat ramps and other ammenities. The result of EPA's trying so hard to find ways to eliminate uses from protection is that the regulatory maze will become too complicated to ever figure out, the uses won't be protected (they certainly aren't now!), and states will disintegrate into decades of rewriting regulations and standards they currently make no attempt to implement as it is. What is the point?

Moreover, this appears to suggest that remote clean waters should be protected while urban polluted waters should not. Doesn't that suggest some basic environmental justice problems to you?

Page 59, line 4: don't use "fishable/swimmable." Instead, use the phrase "interim goals."

Page 59, line 7-12: this description does not accurately reflect EPA's view of its regulations on when existing uses are not deemed to be existing. Since that is a big chunk, it ought to be mentioned.

Page 61, line 2: specify what 101(a)(2) uses you are discussing. Does this include non-biota types of uses such as navigation? If so, don't bother addressing it because it simply is not important in the greater scheme of things.

Page 62, line 13: the phrase "matches the potential" is misleading since EPA has already done away with potential for uses through its interpretation of existing uses. Please clarify.

Page 63, line 15: identifying a threshold of aquatic life based on physical rather than biological limitations merely seeks to undermine the Act a different way. The use of a flow-based threshold will undermine the Jefferson County case and lead to increased damage rather than increased protection and restoration. This is particularly true where streams are over-appropriated. If a state wants to eliminate an aquatic life use it can do so by designating highly pollution tolerant life forms.

Page 64, line 13: the question that should be posed is whether EPA's views should change.

Page 64, line 17: the question that should be posed is what do commenters think about EPA's view.

Page 64, line 20: the use of the word "comprehensive" suggests that the use attainability analysis process is not liberal enough. Such an assumption is not appropriate.

Page 67, line 7: you should not assume that discharges are good. If the stream were naturally ephemeral, what difference does it make if the discharge is diverted?

Page 67, line 10: regarding net environmental benefits of instream flows, why is it a benefit if the flow is not natural and/or the flow supports non-native species?

Page 67, line 20: remove the word "likely" because there are many effluent-dependent waters outside the arid west in large part because these waters have been over-appropriated.
If you de-water a non-ephemeral stream through a state-acquired water right you should not be able to obtain a suspension of water quality criteria. To do so would be to undermine the goals of the Act.

Page 68, line 11 and 15: many criteria already only provide a marginal level of protection for uses. With regard to the degree of violation, what is "marginal"?

Page 68, line 20: this is particularly true with regard to toxic contaminants.

Page 69, line 1-11: there is a need to protect native species, not justify more pollution to support non-native species. We are currently discussing this issue in Oregon triennial review and it is a loophole that can quickly erode the entire water quality-based approach.

Page 70, line 8: to what are the benefits?

Page 70, line 11: flexibility can be blackmail. This document needs to address the problem that regulatory agencies may find themselves allowing standards violations every time a discharger threatens to land apply its wastes.

Page 70, line 24: include sanitary system overflows (SSO) because they overflow too, at least in Oregon!

Page 71, line 15: some stakeholders were involved.

Page 71, line 23: please explain the perspective set out here, exactly how.

Our experience is that standards can have the flexibility to address this problem. Oregon just did it with regard to bacteria in its 1996 standards.
Page 74, line 7: mention the Oregon example.

Page 74, line 15: EPA should not be implying that CSO discharges only occur during high-intensity storm events.

Page 74, line 18: it is important that EPA not lose sight of the fact that standards might treat fecal effects on beneficial uses differently than loadings of other pollutants. Both are at issue, not just fecal contamination.

Page 75, line 18: wet weather discharges occur in Portland when there is barely any rain at all so there are not necessarily high-flow conditions. What is the point of this paragraph? It leaves me wondering "so what?"

Page 76, line 3: you should discuss fall and spring which frankly pose much more serious questions than winter and are more difficult to answer.

Page 76, line 16: EPA would do more good if it just got some examples of solutions circulating.

Page 76, line 20: note the different kinds of constructed conveyances: in pipes, open to access by wildlife and public, etc.

Page 79, line 7: ask the question: "Can loadings based on TMDLs take care of these problems?"

Page 80, line 24: you might as well note that according to EPA, however, the use can be eliminated quite easily.

Page 82, line 1: and TMDLs.

Page 82, line 18: add e.g. 'no toxics in toxic amounts.'

Page 82, line 21: the "or" should always be an "and."

Page 82, line 25: note that this is in theory only because wildlife are not protected, particularly against sublethal effects.

Page 83, line 6: remove the comma after "criteria."

Page 83, line 13: define aquatic life here as not including birds and mammals in order to be accurate.

Page 84, line 3-6: you should note what this is based on.

Page 86, line 24-25: why does this suggest regulatory changes? It seems it should suggest that EPA should just do it rather than making regulatory changes so that states could do it.

Page 87, line 18: the word "necessary" should be replaced with "desirable for the polluter."

Page 88, line 1: because?

Page 89, line 13: add: Do site-specific criteria 1) undermine meaningful public involvement, and/or 2) take too much agency resources?

Page 91, line 21-25: define RfD, benchmark dose, categorical regression analysis. This section is cryptic.

Page 95, line 16; page 96, line 6-7, 15-16: Please explain why allowing higher risks to those who can least afford it (minority, low-income, and subsistence fishers) is not a form of environmental injustice. Explain how this is in any way consistent with the principles of environmental justice allegedly implemented by EPA.

Page 98, line 15: why is it not possible to provide roughly the same level of protection? If you assess the consumption levels and you hold states to the same risk level, then the only factor that changes are those that establish how much of a pollutant should be allowed in the water. Define the risk that is reasonable for subpopulations as the risk that we believe the general population should bear and the answer is clear. Why should subpopulations bear higher risks, except to save polluters money?

The added benefit of protecting subpopulations to the same risk level as the general population is that we will provide an additional measure of protection for birds and mammals that are not currently protected.

Page 99, line 13: assume higher intakes and have the state prove otherwise. Address the need to protect wildlife and to protect against sublethal effects.

Page 99, line 25: Is public participation supposed to be a substitute for actual good health? Is this environmental justice?

Page 108, line 14: EPA should address the issue of TMDLs based on biological monitoring.

Page 108, line 16: When EPA completes this section on sediment quality criteria, we would like to see it.
Page 111, line 5: "recover" should be "recovery."

Page 111, line 20: this notice should state how long EPA expects to take in developing the new methodology when asking how commenters feel about EPA continuing to use the old methodology.

Page 113, line 1: this discussion appears to assume that there is no measurable impact on wildlife. Such data on use impairment of wildlife should be used if available to develop criteria.

Page 114, line 8-9: it should go without saying that the standards do not apply to point sources or non-point sources. All standards apply to waterbodies. On the other hand, if EPA's statement that narrative criteria apply to "ambient water quality" means that EPA believes criteria do not apply to sediment, fish/shellfish tissue, and wildlife tissue, we strongly object to this position.

Page 114, line 10: eliminate the comment about the regulation not including this degree of specificity; it is irrelevant.

Page 114, line 24: it is difficult to see how a discussion of standards and non-point sources cannot include reference to TMDLs. This major regulatory step is mentioned very little throughout this document.

Page 116, line 13: again, while the issue EPA raises is not without merit, the ANPRM avoids any reference to actual implementation of standards through TMDLs. States do need guidance on implementing narrative criteria through TMDLs, guidance that will best be given through example.

Page 117, line 1-6: EPA does not mention here or elsewhere the fact that it is possible to calculate the additive risks of multiple toxic contaminants present in the environment by simply adding them up. This should be a part of evaluating whether toxics collectively in a waterbody have exceeded the narrative criterion of 'no toxics in toxic amounts.' Moreover, the implementation method needs to address how to ensure that permittees do not cause or contribute to violations of the narrative toxic criteria.

Page 120, line 12: another option might be for EPA to deem the presence of a certain pollutants as "reasonable expectation" so that states' cannot avoid criteria development.

Page 132, line 11: is this not referred to as "anti-backsliding"?

Page 134, line 20: EPA should illustrate how antidegradation policies, when implemented, are "powerful." Since it does not appear that they are implemented except rarely, this statement is odd. We agree in theory.

Page 135, line 19: it is nearly inconceivable that this discussion of allocating assimilative capacity under antidegradation policies does not discuss the role of the TMDL, particularly with regard to section 303(d)(3).

Page 139, line 13-25: we strongly disagree with the interpretation of the Tier 1 antidegradation policy. We do agree that the water quality of a Tier 1 water is the "floor" of water quality because, by definition, the water quality is too poor to fully or even partially support the beneficial uses. These may be uses that were "existing" in 1975 and are no longer existing or uses that are designated.
In any case, water quality for those parameters that violate criteria should not be allowed to become worse. Therefore, Tier 1 waters should be subject to a non-degradation policy.
Instead, EPA appears to argue that those waters which no longer have assimilative capacity are only subject to some vague antidegradation policy that requires water quality sufficient to maintain and protect existing uses. But these waters already have quality that is lower than state criteria. EPA does not address how much lower it can go. So, what is Tier 1? How is Tier 1 implemented?

Earlier in this document, EPA states that existing uses are not to be designated "existing" if water quality is not sufficient to support them or if the uses are impaired. In other words, EPA allows for virtually eliminating the category of water quality limited waters by gutting the plain meaning of "existing uses" and then states that Tier 1 should protect existing uses.

In theory, the criteria adopted by the state are protective of the most sensitive uses. Yet, EPA suggests that states have not established criteria that are protective of all existing uses and that is the process that Tier 1 antidegradation protection creates. Why isn't this tied to interpreting narrative criteria which should help fill gaps that are left by numeric criteria? How is this antidegradation? Why isn't this meeting the 40 CFR 131.11 requirements to protect the most sensitive uses? We agree this should be done, we just don't see why this is antidegradation. Plus, we don't see any level of protection under the principles of antidegradation for those waters where uses are fully or partially impaired and water quality is lower than numeric and narrative criteria.

EPA could make this discussion more clear by referring to these waters as "water quality limited" in the same fashion as it refers to Tier 2 waters as "high quality waters" and Tier 3 waters as "outstanding natural resource waters." In fact, these waters are found on the 303(d)(1) lists and are subject to TMDLs under that same section of the statute.

Page 142, line 6: it is true that some states have less precise designated uses but, even so, they should protect the most sensitive actual uses present, even if this creates "overprotection." This, of course, is the incentive for states to more specifically categorize their uses.

Page 143, line 1: EPA should not have approved the criteria adopted by the state if they were not adequate to protect existing uses.

Page 143, line 3: again, the issue is interpreting the narrative or biological criteria, not antidegradation.

Page 145, line 22: Make the second sentence: "These are called High Quality Waters."

Page 147, line 14-16: this is backwards. Tier 2 protection should always apply to those parameters for which there is remaining assimilative capacity. Moreover, if EPA is going to allow this interpretation that violation of the criterion for one parameter means that only the Tier 1 antidegradation policy applies, it would be very helpful to have a better idea of what exactly that Tier 1 policy is. See above.

Page 151, line 21: do not use the phrase "fishable/ swimmable" because it is totally confusing. Plus, why is there no reference to 303(d)(3) TMDLs to make allocations for remaining assimilative capacity in high quality waters? That is what Congress called for and that is what makes sense.

Page 153, line 8: again, TMDLs and waste load allocations for future growth should be discussed. If you give it all away now, there won't be any later. Unless, of course, EPA then deems water quality to be sufficiently degraded as to not support uses which, although existing today are not supported tomorrow, and are therefore deemed not to exist.

Page 156, line 3-5: the way to make antidegradation policies work is to require them to be specifically addressed in the NPDES permitting process.
Page 159, line 9-13: we disagree. Tier 3 calls for non-degradation because of ecological significance etc. not because the criteria aren't sufficiently protective. The point is to protect the water quality as we find it today, and even perhaps to allow it to improve. It is not an exercise in whether the criteria are correct. Again, EPA confuses criteria-setting with antidegradation policies.

Page 160, line 3: call it non-degradation.

Page 160, line 22: the third question is how to implement Tier 3 nondegradation.

Page 163, line 15-19: this description of trading is Tier 2 1/2. Under Tier 3, any improvements in water quality must be maintained, not given away. Tier 2 1/2 allows for trading.

Page 164, line 21: Tier 2 1/2 is not well defined in this document.

Page 175, line 5: note that a mixing zone analysis does not override a waste load allocations made pursuant to a TMDL.

Page 177, line 25: you should note that EPA does not review all permits or even any permits from some states. Specifically, Oregon and Washington permits are not subject to review by Region X because of resource limitations and priorities.

Page 181, line 10: this discussion proves that there is no substitute for TMDLs.

Page 211, line 9-10: this is not true with regard to CSO compliance schedules administered outside the NPDES permits.

Page 220, line 16: the tools to which EPA refers are for far more than measuring whether water quality attains objectives. In fact, these tools are intended to be implemented through the TMDL process. That said, the reference to "tools" is vague.

Page 220, line 17-21: are the tools referred to in this sentence the three types of water quality assessments? If so, be more clear.

Page 220, line 22-23: put numbers on these three types of assessments so that this is more clear.

Page 222, line 6: address the need to assess sublethal effects. It is not true that chemical-specific methods cannot assess combinations of pollutants. They can assess additive effects to some degree. No mention is made of synergistic effects here.

Page 223, line 1: 303(d) is more than an assessment program. We would have considerably cleaner water if EPA would recognize that. It would help if this document recognized that fact.

Page 227, line 13-14: this suggests that tissue and sediment data are not to be considered. This interpretation is not consistent with other EPA guidance, with the intent of the Act, or with common sense that dictates data on chemical residues in water-related media should be, in fact often must be, interpreted and acted upon.

Page 228, line 18: same comment on additivity as above.

This document makes no reference to use impairment as a way of determining compliance with standards. This includes use impairment due to measurable toxic residues in fish, wildlife tissue. For example, when bald eagles on the Lower Columbia River are suffering from reproductive failure due to high levels of toxic contaminants obtained from their primarily fish diet, this data should be used.

Page 231, line 7-9: this is a misstatement of the law. How long is "will" in EPA's opinion? How sure is "will"?

Page 231, line 16-17: this sounds like EPA is looking for ways to relax the application of water quality standards. If you aren't then ask a different question.

Page 233, line 18: we strongly object to the sole use of biological assessments. For one reason, they do not translate into loadings easily. Second, the current system has not begun to be fully implemented because very few TMDLs have been done nationally.

Page 234, line 1: EPA should do some biological TMDLs.

Page 234, line 19: does "aquatic life" include mammals and birds? It should.

Page 244, line 6-7: the Clean Water Act does say how standards are to be implemented through permit loads. It quite clearly requires the development of TMDLs with waste load allocations for polluted waters under 303(d)(1) and high quality waters through 303(d)(3).

Page 248, line 12-13: please provide evidence that more protection is being provided than is necessary to attain and maintain designated uses.

In summary, this document is a study in contrasts. At page 15, EPA establishes the purposes of the Clean Water Act and the role played by water quality standards in achieving those purposes. In many other places in this document, EPA interprets its own regulations in such a way as to almost entirely undermine these purposes. This is difficult to reconcile. Ultimately, while there are many reasons to improve upon the water quality standards regulations, we believe there is a greater need to implement the ones we have first.

Thank you for this opportunity to comment in advance. We look forward to receiving the ANPRM when it is finalized.

Sincerely,

Nina Bell
Executive Director

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