BOARD00585

• Board Meeting Date: 11/23/1998
• Description: Federal "Clean Water Action Plan" and EPA's Advance Notice of Proposed Rule Making - Status Report
• Board Meetings - Doc Type: Memo

ANPRM Comments
December 8, 1998
Page 10

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5. III.DA.b.v. Tier 2 Implementation; Nonpoint Sources:

The current regulatory provisions regarding the relationship between non point
sources and Tier 2 antidegradation requirements are unclear and should be
clarified. Any such clarification needs to grapple directly with difficult but important
considerations. For example, is it equitable to hold up one entity's project (e.g. a
new point source discharge) due to the failure of other, nonpoint sources to
implement adequate controls?

It is important that issues such as this be resolved in the context of an overall,
internally consistent Clean Water Act non point source strategy, that also resolves
issues such as TMDL3 ferJhe.~~pplit:a!lon,,:of;:S.~g!Lqlifl~93(d)~i'~qYit[l!len!s~Jo
nonpoint sources and considers EPA's current section 319 program guidance. At
present, there appears to be tension between EPA guidance that voluntary and
incentive approaches are a legitimate option for nonpoint source control and EPA's
current thinking that "it may be time to begin to actively ensure implementation [of
nonpoint source controls] before allowing lowering of water quality". To "ensure"
nonpoint source controls implies a regulatory approach. Does EPA intend to
mandate nonpoint source controls er Retl:1:~lq~Jl2.~lIT9~}J.i~~J:p.Qim.~Q!!t~.E! .
, ~,illres;cfn;~itb~!.ihjp"ai(eS!;!r:!g[o~hig!li9(ja~Mgtea~? What approach does it
~,ge! believe to be most cQnsistent with tbe current provisions of the Clean Water
Act?

6. III.D.5. "Tier 3":

EPA should provide clarification, in the regulation or guidance, regarding the terms
"maintained and protected" for Tier 3 waters. Moreover, it is important that this term
be defined in a manner such that outstanding national resource water (ONRW)
designations are a practical option that can be used by states. A striCt and inflexible
interpretation of this phrase will result in states not designating any waters as
ONRWs. There is no point in retaining a provision with theoretical purity that is
infeasible to apply to the real world.

We recommend that "maintained and protected" be defined to allow temporary
impacts and impacts that are not measurable or calculable. In addition, it would be
appropriate to allow new discharges to ONRW segments with trading (Le. control
of other sources) that results in net improvement of the water quality in the segment
in question. Some of these concepts are examples of what some states consider
to be "Tier 2 y," approaches, because they have found "Tier 3" as currently
understood too inflexible. Rather than complicate the policy discussion with new .