October 11, 2013

Mr. David Whitehurst

Sent Electronically

Department of Environmental Quality, 

629 East Main Street, P.O. Box 1105, 

Richmond, VA 23218

david.whitehurst@deq.virginia.gov.

Re: Response to Notice of Intended Regulatory Action (“NOIRA”), Three-year Review of 9VAC25-260, Water Quality Standards, as Required by § 62.1-44.15 (3a) of the Code of Virginia and Federal Regulations at 40 CFR Part 1319 

Dear Mr. Whitehurst:

We are submitting these comments on behalf of Shenandoah Riverkeeper, Potomac Riverkeeper (collectively “Riverkeepers” herein), and the members of our organizations, for entry into the official record for this action.  We appreciate the Department of Environmental Quality’s (“DEQ’s”) efforts in reviewing the State’s Water Quality Standards regulation (“WQS” or “the Standards”) and believe that Virginia’s WQS have many positive features.  However, we also believe there are serious deficiencies, both in the Water Quality Standards regulation itself and in the various policies and procedures through which the WQS are implemented.  Therefore, we assert that the State has a legal duty, under the Clean Water Act and Virginia law, to revise the Standards and current implementation protocols.  We look forward to working with you in the coming months to improve the Standards and the protection of Virginia’s waters.

Our Primary Concerns Include:

1. Both the wording and the methods of applying the narrative criteria are insufficient to fully protect Virginia’s waters and meet legal mandates.  Changes to the regulation are necessary to avoid misapplication of its provisions.  Even more importantly, Virginia must implement the narrative criteria fully, now.  At the same time the DEQ should publish their plan for using these criteria in all of their programs, permitting and other regulatory actions, as the State has failed to do so in the past.

2. Virginia must change its procedures for applying the antidegradation policy, to meet both state and federal law.  Specifically, the significance thresholds or de minimis provisions are not justified by any technical rationale and are not allowable under the Clean Water Act or the State Water Control Law.  Also, the practice of allowing waters to be degraded for all other parameters because one or more criteria are violated and a “Tier I” analysis is applied, dooms high quality features of thousands of waters across the state to degradation. 

3. In the absence of numeric criteria for sediments and nutrients, the state must fully apply the Narrative Criteria to address historic and existing impairments and losses of designated and existing uses.  In addition, numeric criteria must be promulgated IN THIS REGULATORY ACTION to address and/or anticipate conditions that could further exacerbate or cause new impairment or future losses of use. Even if the narrative criteria in Virginia’s WQS are fully and effectively applied, serious water quality problems caused by sediment and nutrient pollution will continue to arise unless the state adopts numeric criteria for these parameters.  Given that enforcement of narrative criteria must generally be reactive, addressing problems that are already observed, the ability to act proactively through numeric criteria is practically and legally required to protect State waters.

4. Major problems for waters across Virginia and the U.S. are caused by changes to stream flow regimes.  These may result from land development and other activities that alter the nature and timing of stormwater runoff or from in-stream changes, such as dams or diversions of water flow through withdrawals or other means.  These forms of pollution must be addressed through Virginia’s WQS and controlled accordingly through regulatory actions.

5. The Riverkeepers have become aware of the concern held by municipal water purveyors such as the Fairfax Water Authority about the presence of bromine in raw water. We understand that they may submit comments on this triennial review action and we would like to respectfully ask the agency to fully evaluate their concerns.

Riverkeepers

Potomac Riverkeeper, Inc., is a 501(c)(3) non-profit corporation founded in 2000.  Potomac Riverkeeper is dedicated to the protection and restoration of the Potomac River, from its headwaters in West Virginia to the Chesapeake Bay, and pursues these causes through citizen action, advocacy, education, and enforcement.  Potomac Riverkeeper, Inc.’s headquarters is in Washington, D.C., and it is licensed to do business in Virginia. 

The Shenandoah Riverkeeper program, is a division of Potomac Riverkeeper, Inc. and was founded in 2006.  Potomac Riverkeeper has a Virginia license to do business as (DBA) Shenandoah Riverkeeper.  The mission of the Shenandoah Riverkeeper program is to use community action and enforcement to protect and restore water quality in the Shenandoah River watershed for people, fish, and aquatic life.  The Shenandoah Riverkeeper program operates out of an office in Boyce, Virginia, which is within the Shenandoah River and Potomac River drainages.  

Riverkeepers have thousands of members who participate in our programs and who use Virginia waters to swim, fish, boat, and recreate, as well as for business uses and drinking water; many of them own property whose values are affected by the quality of Virginia’s streams, estuaries, and reservoirs.   Both Riverkeepers and our members have long-standing and continuing interests in the use and protection of State waters that will be affected by the outcome of deliberations during the intended regulatory review and any actions that may be proposed.

9VAC25-260-20. General criteria

This section includes narrative criteria that are to be applied to all water bodies in Virginia.

  The first paragraph, requiring that all State waters “shall be free from substances . . . in concentrations, amounts, or combinations which contravene established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful to human, animal, plant, or aquatic life” is similar to wording EPA recommends for inclusion in state Standards.

  Also the statement that “Specific substances to be controlled include, but are not limited to: floating debris, oil, scum, and other floating materials; toxic substances (including those which bioaccumulate); substances that produce color, tastes, turbidity, odors, or settle to form sludge deposits; and substances which nourish undesirable or nuisance aquatic plant life” is appropriate.  

However, while the State is committed through other rules and procedures, and through federal law, to apply the narrative criteria to a wide range of regulatory actions, including NPDES permitting, CWA § 401 certifications, and others, the wording of the first paragraph reads as if these criteria apply only where problems are “attributable to sewage, industrial waste, or other waste.”

 It would be inappropriate and legally unsupportable to limit the coverage of these narrative criteria in this manner and this reading is inconsistent with the intent of this and other state and federal regulations.  Water quality standards are to be applied to all State Waters.  The U.S. EPA has stated that it “considers that the narrative criteria apply to all designated uses at all flows and are necessary to meet the statutory requirements of section 303(c)(2)(A) of the CWA”

 and does not limit that application to circumstances where water quality problems are attributable to “wastes.”

It is important to recognize that the Objective

 of the Clean Water Act (“CWA” or “the Act”) commands that we address all pollution, which is defined as “the man-made or man-induced alteration of the chemical, physical, biological and radiological integrity of water.”

  The Act takes a much broader view of “pollution” than that traditionally and still too-often espoused by “experts” in the field of water quality.  Reaching far past the concepts of parts per million and pounds per day of pollutants from wastes, the call for integrity demands that water bodies be whole, balanced, and sustainable systems and free of impacts from any activity that would impair their integrity.

For example, the impacts of altered stream flows from excessive stormwater runoff, dams, mining activities or any other source are clearly within the required purview of WQS.  When dam owners tried to confine the concept of pollution to narrow limits, the Supreme Court wisely recognized the broader intent of the Act.  Justice O’Connor, for the Court, dismissed this “artificial distinction” and noted that “§304 of the Act expressly recognizes that water ‘pollution’ may result from ‘changes in the movement, flow, or circulation of any navigable waters. . . . .’ 33 U. S. C. § 1314(f).” 

The first paragraph of 9VAC25-260-20 must be revised to clearly require that the conditions listed there are prohibited in state waters, without regard to the causes which produce those conditions and impacts.  Virginia and all states must use these narrative criteria to define impairments and ensure that designated and existing uses are fully supported in any circumstance where the officials have the authority to regulate activities.

  As discussed below, the application of WQS can only be said to “Serve the purposes of Act (as defined in sections 101(a)(2) and 303(c) . . . ,“

 as required by federal regulations, when the impacts of flow alterations are addressed in regulatory actions related to stormwater discharges, mining, dams, or other activities.

 We recommend that the first paragraph of 9VAC25-260-20 be changed to read: “State waters, including wetlands, shall be protected from pollution which contravenes established standards or interferes directly or indirectly with designated or existing uses of such water or which are inimical or harmful to human, animal, plant, or aquatic life.”  To accompany this change in the text of the WQS regulation, the definition of “pollution” included in the federal regulations at 40 CFR §130.2(c) should be added to 9VAC25-260-5.

Application of Narrative Criteria to Limit or Prohibit Discharges and Polluting Activities

In addition to clarifying that the narrative criteria in its WQS regulation apply to all state waters and all activities regulated by Virginia agencies, the State must provide and EPA must require an implementation plan for these criteria that will ensure that they will be applied faithfully and effectively.  Prior failures of the State in this regard, such as those discussed below, make the preparation and adherence to such an implementation plan especially vital to ensure that Virginia’s WQS provide the minimum levels of protection required by the Clean Water Act.

The fact that the EPA has previously approved the State’s WQS and that those Standards, including the narrative criteria, have been misused and, therefore, failed to protect and improve water quality in some very damaging ways, makes the preparation of a detailed implementation plan especially vital.  One such failure is illustrated by damage done to waters in the Potomac basin and elsewhere in Virginia that are impaired by nutrient-driven algal blooms and other related pollution problems.  Despite the fact that the Virginia DEQ has set permit limits based on narrative criteria or general standards in a number of contexts, permit limits based upon those narrative criteria violations have not been effectively and uniformly implemented.  

The State Water Control Board (SWCB) and Virginia courts have recognized that interference with designated and existing uses, which violates the narrative criteria, is a WQS violation that must be addressed when regulatory actions are taken.  This position must be adopted by the DEQ and SWCB in all circumstances.  With regard to impairments documented in the Shenandoah River and its North and South Forks, the DEQ has refused to designate these waters as “impaired,” despite clear and abundant evidence that the pollution problems interfere with designated and existing uses.  Further, the Department has not limited nutrient pollution in discharges that contribute to these degraded conditions.  

Given such failures to implement the WQS appropriately, we submit that it is urgent that the DEQ develop reliable and well-supported procedures for developing limits and pollution control measures based on narrative criteria.  This procedure must be broad enough to guide actions in VPDES permitting, CWA section 401 certifications, or any other process where the State is obligated to carry out the mandates of their WQS.

In 2008, the Virginia Court of Appeals upheld narrative criteria-based permit limits in State Water Control Bd v. Captain’s Cove Utility Company, Record No. 2735-07-1 (Va Appeals, Chesapeake 2008).  The court endorsed the State Water Control Board’s findings that a sewage discharge would result in the condemnation of shellfish beds and that this action “would violate the designated use standards and the general standards contained in 9 VAC 25-260-10 and 9 VAC 25-260-20, respectively.”  The Court concluded:

“The Board has the statutory authority to prohibit discharges into state water, where such discharge would violate the general standard by interfering with the designated uses of that water. The proposed discharge need not contravene established water quality standards to justify denial . . . .