“The regulation clearly contemplates that some substances may not violate water quality standards, while still interfering with designated uses of state waters. Thus, the Board had to consider whether, irrespective of the actual effect the treated effluent would have on water quality, approval of the permit would violate the general standard by interfering with the designated use of state waters.”

Importantly, a Virginia Dept. of Health official “indicated that there is at least some condemnation of the waters around the discharge point of any sewage treatment facility, regardless of the actual quality of the water itself, simply because of the danger of malfunctions at such facilities.”

  Further, the conclusion that designated uses would be denied or impaired by the proposed discharge was based upon evidence from agency personnel and members of the public who testified that the mere existence of the discharge and the shellfishing ban would inhibit use of the receiving waters for commercial and recreational shellfishing and that "it is likely that swimmers would not desire to swim in an area marked with yellow [condemnation] signs."

  Thus, in this case, the interference with designated uses could be characterized as “indirect” and based on perceptions that pollution could be present - in contrast, those use denials demonstrated in the Shenandoah watershed, involve current pollution problems and proven public reactions to that pollution.

The State cannot validly claim a lack of authority or knowledge of the necessity and proper methods for implementing pollution control requirements to uphold narrative criteria.  In the early 1990s, before Virginia adopted numeric criteria for priority pollutants, the State set numeric permit limits based upon application of EPA criteria and the state standards’ requirement to enforce general criteria.  In one case the Virginia Association of Municipal Wastewater Agencies (VAMWA) challenged the inclusion of several metals limits in the permit for the Rocky Mount Sewage Treatment Plant (“STP”) in state district court.  The court upheld the permit limits based on the general standard at 9VAC25-260-20 and upon narrative criteria at 9VAC25-260-140.A., which states “Instream water quality conditions shall not be acutely or chronically toxic except as allowed in 9VAC25-260-20 B (mixing zones).”

Other examples of numeric permit limits based upon interference with uses and violation of narrative criteria include those set for three major municipal discharges on the Smith River (one owned by the City of Martinsville and two by Henry County).  In those cases color discharges from textile plants passed through the sewage treatment plants and caused drinking water plants in Eden, NC and Danville, VA to periodically stop pumping water from the Smith and Dan Rivers, denying the use of state waters for public water supply.  There were no numeric water quality criteria for color in Virginia when any of these permits were issued, yet the state recognized and lived-up to the requirement to establish wasteload allocations for the Smith River. 

EPA and the federal courts have also strongly supported the theory that permitting authorities are not only authorized but required to impose permit limits to enforce narrative criteria and general standards.  EPA adopted regulations specifically designed to ensure that such limits would be included in permits and that permit writers would design such limits in ways that are technically sound.  At 40 C.F.R. § 122.44(d)(1)(vi), federal regulations lay out three possible methods that permit authorities may use to impose the required limits when based upon narrative criteria.  And permit limits must be placed in VPDES permits, whether receiving waters have been designated “impaired” or not.  

When the EPA regulation was challenged, the DC Court of Appeals upheld it and expressed the firm conviction that such limits were required and that EPA had designed acceptable requirements to see that they were implemented appropriately. In American Paper Institute v. U.S. EPA., 996 F.2d 346 (DC Cir. 1993) the court stated:

“once a water quality standard has been promulgated, section 301 of the CWA requires all NPDES permits for point sources to incorporate discharge limitations necessary to satisfy that standard. See, e.g., Westvaco Corp. v. EPA, 899 F.2d 1383, 1385 (4th Cir.1990). On its face, section 301 imposes this strict requirement as to all standards—i.e., permits must incorporate limitations necessary to meet standards that rely on narrative criteria to protect a designated use as well as standards that contain specific numeric criteria for particular chemicals.”

In Upper Blackstone Water Pollution District v. E.P.A., 690 F.3d 9 (1st Cir. 2012), the First Circuit Court of Appeals upheld an NPDES permit containing effluent limits for a wastewater treatment plant based on narrative nutrient criteria adopted by the states of Massachusetts and Rhode Island.  The court noted that water quality problems, including “algae blooms, thick, cloudy waters, putrid smells” “periodically contaminate”

 the waters of the Blackstone River and downstream water bodies in both Massachusetts and Rhode Island - conditions that are mirrored by those found in the Shenandoah River and the North and South Forks (as well as waters throughout the Chesapeake watershed).  As the permitting authority in Massachusetts, EPA set nutrient permit limits in the Blackstone treatment plant permit and noted that Rhode Island, which has a delegated NPDES program, had set similar limits for discharges in that state. 

All of the above discussion supports our contention that Virginia is required to apply its narrative criteria fully, in water quality assessments and permitting actions.  To ensure that this application is done faithfully and effectively in the future, we ask that the State develop an implementation plan related to the narrative criteria in the Virginia WQS regulations and submit that plan for public review and EPA approval.  Unless this is done, we cannot trust that the bare wording of these WQS provisions will be made real in a way that protects our waters.

We refer the DEQ to an example of such an implementation plan for narrative criteria prepared by the Arizona Department of Environmental Quality.

  The U.S. Environmental Protection Agency (“EPA”) had disapproved Arizona’s WQS in 1993, saying that without the provision of implementation procedures for the State’s narrative nutrient criteria there was “insufficient support for the position that the State’s narrative standard provides protection substantially equivalent to that provided by the federally promulgated numeric standards . . . .”

  As described above there is, likewise, insufficient support to assert that Virginia’s narrative criteria, for nutrients and other types of pollution provide the level of protection required.  To the contrary, Virginia officials have admitted that they are not prepared to apply their narrative criteria in relation of nutrient pollution

 and they have shown themselves unwilling and unable to apply them in other circumstances.  Therefore, we insist that an implementation plan for application of all narrative criteria to all waters and all regulated activities in Virginia must be established and brought before the public and EPA for review.

Antidegradation Policy.

The text of this section of Virginia’s WQS regulation closely reflects the federal regulations on antidegradation.  The implementation of this policy, however, is deficient in the ways explained below.  The EPA has recognized that, in a State’s WQS, the words alone can be far from adequate to properly protect water quality and “serve the purposes of the Act.”

  The provision in federal regulations that requires States to adopt antidegradation polices also mandates that they “identify the methods for implementing such policy pursuant to this subpart.”

  We have been unable to discover any one document that purports to serve as a comprehensive implementation plan for Virginia’s antidegradation policy.  Therefore, we first assert that the State must clearly delineate those portions of its policies, procedures, or guidance that constitute its “implementation plan.”  We believe that it would be appropriate for such a plan to undergo official adoption as part of the WQS regulation but, in any case, the “plan” should be reviewed, updated, designated as an antidegradation policy “implementation plan,” and opened to comment by the public and EPA.

We are aware of DEQ Guidance documents available through the Virginia Town Hall website and the DEQ’s website that address the implementation of the antidegradation policy.  We have looked for the most recent guidance documents available that address antidegradation procedures and, finding no contradictory guidance, have presumed, for the purpose of these comments, that those guidance documents remain in force.  Two DEQ memoranda seem to provide the primary guidance on the interpretation and implementation of the antidegradation policy.  One is from 1994

 and the second is dated 2000.

Improper Designation of Waters as Tier I and Subsequent Degradation

DEQ Guidance Memo No 00-2011 states that 

“Tier 1 waters are defined as those waters wherein one or more standards are not being attained or wherein the existing quality, under critical conditions, is equal to but does not exceed one or more applicable criteria”

 and 

“Tier 2 waters are defined as those waters wherein the existing quality is better than the standards for all parameters that the Board has adopted criteria for (except fecal coliform and temperature for class V waters . . . ).”

The decision as to a waterbody’s Tier designation is crucial to the antidegradation approach in Virginia, which still uses a so-called “waterbody-by-waterbody” approach to the analysis.  We believe this approach is incorrect and that the implementation policy should replace it with one that examines water quality on a “parameter-by-parameter” approach.  In fact, DEQ officials have previously stated that such a transition was likely but this has not occurred.

Even with the current analytical protocol though, the method of assigning Tier designations is badly flawed and leaves vast numbers of waterbodies vulnerable to degradation.  The fact that a stream has levels of any one pollutant in concentrations higher than a numeric criterion, under Virginia’s current system, ends the antidegradation review and allows all other measures of water quality to be brought down to the lowest common denominator level set by the criteria.  This grossly violates the entire concept of antidegradation.

One important example we wish to note, that demonstrates the danger of this approach:

When parties propose to buy and sell nutrient credits, there has been a presumption amongst EPA and state officials that antidegradation requirements will prevent local water quality from being degraded.  Where the credit seller makes improvements in controls to limit phosphorous and/or nitrogen discharges, the credit buyer may maintain or add amounts of nutrients discharged in a comparable amount, even though that amount is higher than would otherwise be allowed under the Bay TMDL.  

Through this trade, buyers are given leniency in regard to the Bay TMDL but are not supposed to worsen water quality in their local area.  However, local water quality may well be degraded in the local are under Virginia’s antidegradation procedures.  The buyer of credits may be allowed to increase its nutrient discharges and bring quality in the receiving waters down if any other constituent in that receiving water has violated a criterion.