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 . . . .

“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.

Significant or De minimis Water Quality Impacts

 Nowhere in the Clean Water Act or in federal regulations are allowances made for so-called “de minimis” or insignificant degrees of degradation, by which water quality may be lowered without antidegradation review and justification by economic and social necessity.  We recognize that the EPA has approved such measures and provided guidance for their implementation but find no legal support or justification for these approvals.

The EPA’s primary justification for allowing de minimis amounts of degradation is that this procedure “allows States and Tribes to focus limited resources where they may result in the greatest environmental protection”

 but, by this reasoning, the EPA seems willing to replace the judgment of Congress with ad hoc and relatively unbounded value judgments by State agencies.  At the same time, the EPA acknowledges that “States or Tribes that define a high threshold of significance may be unduly restricting the number of proposed activities that are subject to a full antidegradation review”

 but the Agency has failed to define what it considers an appropriate “threshold.”

The Supreme Court addressed this issue in Arkansas v. Oklahoma, 503 U.S. 91 (1992).  In that case a new sewage treatment plant in Arkansas, which was to discharge effluent that would flow downstream through a series of three creeks for 17 miles, enter the Illinois River, and then flow another 22 miles before crossing the border into Oklahoma.  The State of Oklahoma’s WQS required that “no degradation” of the upper Illinois River could be permitted.

An Administrative Law Judge had first upheld the permit, finding that there would not be an “undue impact” from the new discharge to a portion of the River in Oklahoma that was already impaired; that there would be no more than “a mere de minimis impact”

 on the downstream State’s waters.  The EPA’s Chief Judicial Officer also upheld the permit but ruled that a proper interpretation of the federal regulation required a more protective standard; that where the prediction of an impact was merely theoretical but was “not expected to be actually detectable or measurable,” the permit should not be denied on that basis.  The Supreme Court ruled that EPA’s interpretation of the CWA and the regulation was not arbitrary and capricious and upheld the permit.

Given that discharges permitted under Virginia’s guidance certainly results in detectable negative impacts on receiving waters, under critical conditions, the standard applied by EPA and upheld by the Court in Arkansas v. Oklahoma provides no support for the policy that is embodied in Virginia’s current WQS and the guidance that supports it.

Below we address the lack of technical support for the particular “significance” thresholds described in DEQ guidance memoranda but we would submit that similar technical concerns make the designation of any de minimis threshold improper.  To assume that any level of degradation from the increase of a particular pollutant in a waterbody is insignificant would require an analysis not just of “assimilative capacity” for that pollutant but of a range of issues to include synergistic effects, fate and transport, bioaccumulation, and bio-concentration, to name just a few.  

The Virginia policy allows a discharge to consume up to 25% of any available assimilative capacity between baseline conditions and a numeric criterion, when the criterion relates to pollutants controlled for toxicity to aquatic life.

  For criteria designed to protect against toxic harms to human health, the discharge may consume up to 10% of the available assimilative capacity.

This blanket approach to whole groups of pollutants is inappropriate and is not supported by any analysis provided by the State or by EPA.  This practice is especially problematic because the nature of the impacts from increased amounts of various contaminants can be very different.  For example, there is a fundamental difference between the ways carcinogens and non-carcinogens are believed to affect human health.  Carcinogens are regulated based on an “assumption of non-threshold effects (i.e., no safe level exists below which any increase in exposure does not result in an increased risk of cancer) for carcinogens.”

So, in contrast to non-carcinogens, any increase in concentrations of these substances to which humans are exposed is predicted to cause an increased risk in the incidence of cancer and, potentially, mortality.  Further, the fact that different carcinogens have different cancer slope risk factors (also known as “potency factors”)

 indicates that the rates at which the increased concentrations of various chemicals increase the threat of tumors is predicted to be extremely variable. 

Where EPA has approved significance thresholds in State antidegradation implementation procedures, a wide variety of approaches have been applied and we find no justification in any support documents that justifies these differences.  “Significance tests range from simple to complex, involve qualitative or quantitative measures or both, and may vary depending upon the type of pollutant (e.g., the approach may be different for highly toxic or bioaccumulative pollutants).”

By failing to even acknowledge factors such as bioaccumulation, bioconcentration, synergistic or additive effects, or many other pertinent technical factors, Virginia’s approach fails to consider important information that is widely available and, thus, its establishment of the significance threshold in the antidegradation implementation procedures (and by reference in the WQS regulation) is arbitrary and capricious.  

The State of Virginia has provided several additional significance thresholds for particular parameters (dissolved oxygen, pH, and fecal coliform bacteria), in addition to the general approach discussed above.  Again, these methods, by which water quality degradation may be allowed without a full antidegradation review, are without technical or logical support.

The Virginia guidance states: that, for pH, changes will be considered insignificant where “pH is maintained within the 6.0 to 9.0 range.”

  However, a change in the pH of a waterbody from one end of the prescribed range could cause very serious water quality problems.  A change on the pH scale from 7 standard units (“SU”) to 9 SU represents a difference in hydrogen ion concentration of two orders of magnitude - a far from insignificant shift and one that could affect aquatic life quite drastically.  The implication of such a change is important for a number of reasons.  For example, the unionized form of ammonia, which is especially toxic to fish and other organisms, could rise by over three orders of magnitude with such a pH change.

Requirement for Numeric Nutrient and Sediment Criteria

Virginia and other states are required by Section 303(c) of the CWA to adopt water quality standards for waters of the United States within their applicable jurisdictions. Section 303(c)(2)(A) and EPA’s implementing regulations at 40 CFR part 131 require, among other provisions, that State water quality standards include the designated use or uses to be made of the waters and the criteria necessary to protect those uses.  EPA’s regulations at 40 CFR § 131.11(a)(1) provide that States shall “adopt those water quality criteria that protect the designated use” and that such criteria “must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use.”

Virginia has no numeric criteria for nutrients in “free-flowing” streams upstream of the coastal plain areas nor any widely applicable numeric criteria for sediments/turbidity.  The “General” or narrative criteria require the State to control “substances that produce color, tastes, turbidity, odors, or settle to form sludge deposits; and substances which nourish undesirable or nuisance aquatic plant life”

 and prohibits pollution that will “interfere directly or indirectly with designated uses of such water or which are inimical or harmful to human, animal, plant, or aquatic life.”

As described above, we believe these narrative criteria can and must be implemented much more widely and stringently.  However, even the most faithful implementation of the narrative strictures cannot fully protect our waters.  By the time undesirable or nuisance aquatic life has emerged in a waterbody or sludge deposits have formed, significant damage has been done.  Our legally-mandated goal  is to protect water quality, not just to react once that quality is degraded.  Numeric criteria are necessary to allow us to check for problems in streams before those problems become dire.  Further, they provide a more certain basis for regulatory controls in discharge permits, which, even if applying narrative criteria have to derive site-specific numerical limits and in-stream wasteload allocations (“WLAs”).  

Over the many years now since the modern Clean Water Act was passed in 1972, nutrients and sediments have always been major causes of impairments state-wide and nation-wide.  And the excuse for failing to devise numeric criteria has been, to characterize it succinctly, “it’s too difficult.”  In fact there are an abundance of sources that should instruct us in adopting our own criteria for these substances:  EPA guidance, including ecoregion-based nutrient criteria recommendations; the reports of advisory committees and staff investigations organized by the DEQ; examples set in other states; and many others. 

We cannot fail to acknowledge the fact that one of the largest, most expensive, and most heralded efforts to reverse water pollution impacts - the fight to clean up the Chesapeake Bay - focuses almost exclusively on the need to control sediments and nutrients.  To continue to delay the establishment of numeric criteria is indefensible.

Requirement for Criteria to Address Flow Impairments

In large part the reasons that should compel Virginia to adopt numeric criteria for nutrients and sediments should also compel the State to incorporate flow provisions into the WQS, and we need not elaborate to a great degree here.  The State is well aware of the problems caused by flow alterations.  It addresses them in 401 certifications for hydropower projects licensed by the Federal Energy Regulatory Commission and for water supply reservoir construction proposals.  It has worked hard to incorporate provisions into the various stormwater management programs to protect stream environments from extreme and flashy runoff and the impacts of impervious watersheds.  

At the same time new flow-induced damages are inflicted on Virginia waterbodies every day.  Some of those damages can be addressed through existing regulatory programs - others cannot.  Regardless, it is important that Virginia have criteria by which to judge flow-based impairments in its water quality standards, that it routinely monitor to see where these impacts are occurring, and that it implement existing procedures or develop new ones wherever necessary to control this very damaging cause of pollution.

Thank you for considering our comments and please contact at Jeff Kelble or Robin Broder if you have any questions about this submittal. 

Sincerely,

Jeffrey D. Kelble

Shenandoah Riverkeeper

Potomac Riverkeeper Inc.

P.O. Box 405

Boyce, VA 22620

Phone: 540-837-1479

Email: Jeff@shenandoahriverkeeper.org

Robin Broder

Vice President

Potomac Riverkeeper, Inc.

1100 15^th Street, NW, 11^th floor

Washington, DC 20005

202-222-0706

robin@potomacriverkeeper.org

**Please note that we will supply a version of these comments that includes citations to the sources accessed for the comments in another form, since we were unable to include those here.