FY 2020-2021 NATIONAL PROGRAM GUIDANCE
Office of Water
Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
The subsection titled "Performance Measure Streamline"
describes the benefits of Lean Management and EPA's
effort to reduce water program performance measures to
the small set of Core Measures attached as Appendix A.
During the core measure engagement process, we were
informed and relied upon the representation that the
creation of a list of core measures would not impact the
performance measures identified in the Water Program
Guidance. It is now clear that representation was
incorrect and misleading.
Further, while claiming to seek to better understand
Tribal priorities during engagement on the topic, the input
that Tribal representatives shared with the Office of
Water regarding the core measures appears to have been
totally ignored. 11 Tribal-specific measures, many of
which represented the highest Tribal priorities, are now
gone; of the remaining 3 measures that mention Tribes or
Indian country, the 2 related to NPDES permits did not
rank on any Tribal priority lists.
We urge the Office of Water to reconsider the removal of
the Tribally-identified highest priority measures, and to
reinstitute at least those identified by the National Tribal
Water Council as most significant. These include
measures related to Tribal access to safe drinking water
and basic sanitation, as well as those addressing other
high Tribal priorities such as monitoring, protecting and
improving the quality of Tribal waters.
Alan Bacock,
Region 9 RTOC
Tribal Co-Chair
Pages 1-2
& App A
Thank you for your comment. We apologize for any miscommunication.
Beginning in FY 2019 all Office of Water core measures must be tracked
on a monthly or at least a quarterly basis.
Because the data supporting the former six tribal-specific measures
relating to safe drinking water and basic sanitation are largely tracked by
entities other than the EPA (i.e., the Indian Health Service and state of
Alaska) and are only able to be supplied to the EPA on an annual basis,
they did not meet the measure requirements of the Agency and,
therefore, were ineligible to be considered as FY 2019 National Water
Program core measures. While these historic tribal measures will not be
part of the National Water Program's core measures, the Agency will
continue to track and report this information. The EPA plans to annually
post the prior year's drinking water and clean water tribal performance
results to its website. Those metrics will continue to be the:
• Percent of the population in Indian country served by community
water systems that receive drinking water that meets all
applicable health-based drinking water standards.
• Percent of 'person months' (i.e., all persons served by community
water systems times 12 months) during which community water
systems in Indian country provide drinking water that meets all
applicable health-based drinking water standards.
• Number of tribal community water systems (CWSs) that have
undergone a sanitary survey within the past three years (five
years for outstanding performers or those ground water systems
approved to provide 4-log treatment of viruses).
• Number of American Indian and Alaska Native homes provided
access to safe drinking water in coordination with other federal
agencies.
No change made to the
guidance.
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
Measures related to Tribal access to safe drinking water
and basic sanitation are of particular importance given
the disparity that continues to exist with respect to such
access between Tribal homes (over 10% continue to lack
access) and non-
Indian homes (less than 1% lack access). EPA has a critical
role to play, along with other federal agencies, to address
this disparity, and we expect to see this critical human
health issue in Indian country remain as an Agency
priority.
• Number of American Indian and Alaska Native homes provided
access to basic sanitation in coordination with other federal
agencies.
• Percent of serviceable rural Alaska homes with access to drinking
water supply and wastewater disposal.
For the water quality standards program, the EPA has removed two
previous tribal-specific measures (i.e., the number of tribes that have
water quality standards approved by the EPA, and the number of tribes
with recently updated water quality standards); however, the EPA
continues to publish the tribal Water Quality Standards (WQS) approval
information, together with approved and pending treated in a manner
similar to a state (TAS) applications, on its website.1 The EPA also has a
core measure to track the backlog of state and tribal water quality
standards revisions not yet acted upon.
With respect to water quality monitoring, the EPA previously had two
tribal-specific measures: (1) Number of tribes that currently receive
funding under section 106 of the Clean Water Act that have developed
and begun implementing monitoring strategies that are appropriate to
their Water Quality (WQ) program consistent with EPA Guidance, which
had almost been completely realized; and (2) Identifying monitoring
stations on tribal lands that are showing no degradation in water
quality. The EPA is no longer collecting data on either measure.
The Agency continues to work closely with other federal agencies to
address the challenges of tribal communities. In addition to supporting
the implementation of the Drinking Water Infrastructure Grants Tribal
Set-Aside, Tribal Public Water System Supervision (PWSS), and the
National Water Operator Certification Program, the EPA is launching
three new grant programs under the Water Infrastructure Improvements
for the Nation (WIIN) Act to support lead testing in schools, disadvantage
1 Water Quality Standards approval information: https://www.epa.gov/wqs-tech/epa-actions-tribal-water-qualitv-standards-and-contacts.
2
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
communities and reducing lead exposure in distribution systems. The EPA
continues to be part of the Infrastructure Task Force (ITF), and as part of
this effort continues to post to EPA's website the results of the tribal
access to safe drinking water and health-based measures. This
information is used to inform resource and technical assistance for the
tribal public water systems.
"Key Strategies" are identified to implement the strategic
measure to reduce the number of community water
systems out of compliance with health-based standards.
The phrase in the description of these strategies that
specifically deals with Tribal communities is difficult to
understand as written, and also overlooks aspects of
access to safe drinking water that continue to require the
Agency's attention. We recommend the phrase "boost
the EPA's direct implementation in tribal communities by
coordinating with other federal agencies ... to
include implementation of disparate tribal drinking water
programs" to instead read "boost the EPA's direct
implementation activities in tribal communities by
coordinating with other federal agencies ... to include
funding and technical assistance to address both
infrastructure and operation & maintenance needs to
reduce the disparity in access to safe drinking water that
continues to exist."
Alan Bacock,
Region 9 RTOC
Tribal Co-Chair
Page 2
Thank you for your comment and suggested edit. Current funding
requirements allow the Agency to support infrastructure projects,
training, and technical assistance.
No change to the
guidance.
The subsection "Priority Actions for EPA/State/Tribal
collaboration" associated with the strategic measures to
reduce the number of community water systems out of
compliance with health-based standards does not actually
mention Tribes. We recommend adding a bullet that
reads "Continue to collaborate with other Federal
Agencies and Tribes through the Infrastructure Task
Force to address Tribal community drinking water and
Alan Bacock,
Region 9 RTOC
Tribal Co-Chair
Pages 2-3
Thank you for your comment and suggested edit. Current funding
requirements allow the Agency to support infrastructure projects,
training, and technical assistance.
Added reference to tribes
and additional language to
the referenced sub-
section of the guidance.
3
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
wastewater infrastructure and operation & maintenance
needs"
We support the strategic measure to reduce the number
of square miles of watershed with surface waters not
meeting standards by 37,000 square miles, but note that
the proposed rule to narrow the definition of WOTUS,
and thereby reduce the waters subject to federal or
federally-approved standards, will make achievement of
this measure significantly more difficult. We therefore
encourage the Office of Water, along with the Army
Corps, to maintain a broad definition of jurisdictional
water.
Alan Bacock,
Region 9 RTOC
Tribal Co-Chair
Page 4
The Agency will carefully consider the public comments received on the
proposed rule to revise the definition of "waters of the United States"
before taking final action. The EPA notes that as discussed in the
economic analysis and resource and programmatic assessment for the
proposed rule, many state programs regulate and protect waters that are
outside the jurisdictional scope of the Clean Water Act.
No change to the
guidance.
We are pleased to see "Address Nonpoint Source (NPS)
Pollution" as the first bullet under the heading of "Priority
Action for EPA/State/Tribal collaboration" and encourage
EPA to continue to fund the CWA § 319 program to
facilitate this priority.
Alan Bacock,
Region 9 RTOC
Tribal Co-Chair
Page 4
Thank you for your comment. The EPA's funding levels will be determined
through the annual federal appropriations process.
No change to the
guidance.
The National Tribal Water Council should be mentioned in
the bullet titled "Communicate with Partners."
Alan Bacock,
Region 9 RTOC
Tribal Co-Chair
Page 4
Thank you for your comment. We support the addition of the National
Tribal Water Council. We adjusted the narrative to reflect your
recommended change.
Added language to the
guidance in response to
the comment.
The last sentence of the first paragraph under the heading
of PROGRAM-SPECIFIC GUIDANCE references reliance on
ETEPs to assist in conducting federal environmental
program activities in Indian country, including direct
implementation and technical and financial assistance.
This sentence should be deleted.
As provided in the 2013 GAP Guidance, ETEPs are
intended to inform GAP workplans and to reference in
measuring performance under GAP. "Established" ETEPs
Alan Bacock,
Region 9 RTOC
Tribal Co-Chair
Page 6
Collaboration with tribes is guided by multiple policies and documents
that outline EPA/tribal roles, responsibilities, and goals. As stated in the
EPA Strategic Plan, which guides the National Program Guidances, EPA-
Tribal Environmental Plans are a "joint planning document" which
"identify tribal, EPA, and shared priorities, and the roles and
responsibilities for addressing those priorities." See Office of International
and Tribal Affairs response to comments for additional information. Their
guidance can be found at: https://www.epa.gov/planandbudget/national-
No change to the
guidance.
program-guidances.
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
contain provisions specifically to serve this purpose and
were not intended by the Tribes that have approved
ETEPs to inform any other aspect of the relationship
between Tribes and EPA.
If the Agency wants to consider and propose a regulation
or policy to more broadly rely on ETEPs to define the
relationship between various EPA offices including OW
and Tribes, it should do this in an action separate from
the NPMG development process, after thorough and
meaningful government-to-government consultation as
required by EPA's 2011 Policy on Consultation and
Coordination with Indian Tribes.
"Also, the EPA will develop or sustain national forums to
help coordinate work in infrastructure program
implementation." Can an example of a national forum or
more detail be added? Do infrastructure programs include
PWSS, DWSRF, and Capacity Development/Operator
Certification/Security/Source Water Protection
programs?
ASDWA
Page 2
Thank you for your comment. The Agency will continue to support
national forums such as the Capacity Development & Operator
Certification Workshops, Office or Research and Development/Office of
Water Small System Workshops, among others in an effort to increase
program collaboration, share best practices, and maximize training and
technical assistance to primacy agencies, public water systems and other
water sector stakeholders to ensure safe drinking water.
Added an example of
national forums to the
guidance in response to
the comment.
"Ensure data accuracy and completeness" - please
coordinate these efforts with the Office of Enforcement
and Compliance for their drinking water NCI as not to
burden the states with additional reporting and
coordination on their end. OGWDW has conducted a
number of data quality initiatives in the past few years
and those projects should be examined to avoid
duplication of effort and also help reduce the burden on
states.
ASDWA
Page 2
Thank you for your comment. The EPA will look at past data quality
initiatives and conduct internal coordination with other offices to
complete this report.
No change to the
guidance.
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
Please clarify that the activities under Workforce
Development will include coordination with state and
association/NGO partners and will target beyond
operators including state staff and others, as confirmed
on the 4/16 call with state partners.
ASDWA
Page 6
Thank you for your comment. The narrative has been changed in
response to your comment.
The narrative has been
changed in response to
the comment.
ECOS encourages EPA to continue work with states to
bring clarity and certainty to the identification of
assumable and non-assumable waters including the
development of clear instruction for states and tribes
seeking to assume to §404 Program
ECOS
Page 5
The EPA is committed to continuing our collaborative effort to engage
states and tribes as we develop this rule.
No change to the
guidance.
(Pages 4-5)
LDEQ opposes the performance measure requiring that
all permitting-related decisions be reached within six
months by September 30, 2022, regardless of whether
or not permit applications are deemed administratively
complete.
LPDES permit applications are often submitted to LDEQ
without all of the information necessary to make a
permitting
decision (required analytical data, inaccurate flow rates,
missing production
rates, missing subpart fractions, etc.). LDEQ Water Perm
its Division (WPD) staff spend a considerable amount of
time and resources obtaining additional information,
verifying the accuracy of flow balance diagrams,
laboratory data, etc. If additional effluent and/or
ambient water quality data are required, LDEQ must
consider the time needed (a minimum of 60 additional
days) to collect samples, allow a laboratory to analyze
the samples,
and generate the appropriate reports. Should
LDEQ
Pages 4-5
At this time, this measure applies to the EPA-issued permits only. The EPA
believes that for the EPA-issued permits, it is appropriate to look at the
time between when a permit application is first received and when the
permit is issued when evaluating the six months target. This approach
provides incentives for the EPA to improve the permit application
preparation and submittal process so as to minimize delays in permit
issuance. Additionally, the EPA is working to streamline all aspects of the
permitting processing, including consultations, where applicable.
No change to the
guidance.
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
this performance measure be implemented, LDEQ will b
egin denying permit issuance on the
basis that the permit application is not administratively
complete. The denial of a permit application will
increase, rather than
decrease, the time frame for issuing a final permit decisi
on, which is
contra indicatory of the goal of this measure.
In addition to processing days needed to obtain an
accurate and administratively complete discharge
application, some LDEQ permit time frames are mandated
by state and federal regulations
and Memorandums of Understanding or Agreement (MO
U or MOA). Specific procedures with established time
frames include:
1. Louisiana State Historic Preservation Officer
(LSHPO) Reviews. New Facility locations (including
expansions at an existing site) requires coordination
with LSHPO to ensure conservation of historic
properties under the National Historic Preservation
Act. In Accordance with the MOU between LDEQ and
LSHPO, LSHPO shall have 30 days to provide
comments on the development of the permit for
discharge. If LSHPO identifies a historic property
during this process, additional time is required for the
applicant to perform cultural resource surveys prior
to obtaining their discharge permit.
2. U.S. Fish and Wildlife Service (USFWS) Review of
316(b) Impingement Plans. A permit application for a
facility that is subject to 316(b) requirements must be
sent to USFWS for review, prior to drafting a permit.
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
The USWFWS is allowed 60 days for review and
comment of the permit application. Should USFWS
submit comments, additional time is required to
address the comments.
3. Permit Applicant Technical Review. Louisiana
Office of the Secretary Regulations (LAC 33:1.1507.C)
requires that the permittee be granted a technical
review of the working draft permit for a period of 10
business days, prior to EPA review and/or public
notice. Additional time beyond the 10 business days
may be required to address applicant comments.
4. EPA Region 6 Review of Preliminary Draft
Permits. In accordance with the MOA between EPA
Region 6 and LDEQ, LDEQ is required to submit all
major preliminary draft permit (specifically request by
Region 6 staff) to EPA for review for 30 days. In
addition, LDEQ must submit all master general
permits to EPA Region 6 for a review of 90 days. The
specified time frames are often extended to address
Region 6 comments.
5. Public Notice of Draft Permit. All draft permit
actions require a public notice period of at least 30
days. If significant public interested is shown, a public
hearing may be requested. If granted, the public
hearing must also be noticed for a minimum of 30
days (this could be in addition to the 30 days
allocated for the draft permit action public notice).
When taking into consideration that a hearing
is not requested (using the aforementioned time frames),
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
only a maximum of 50 days is available to actively review
a permit application, obtain additional information as
needed, draft the permit, and route the permit for
supervisory review. The most major industrial and
municipal permits, this time frame is unachievable.
LDEQ currently has measures in place to ensure timely
issuance of LPDES permitting actions. For example,
Louisiana Office of Secretary Regulations (LAC
33:1.1505.C.l) requires LDEQ to render a final permit
decision for new facilities and major permit modifications
within 300 processing days from the application
submission date. Further, LDEQ implements an expedite
permitting program, as outline in the Louisiana Office of
the Secretary Regulations (LAC 33:1.1801). The expedited
permitting program allows a permit applicant to pay an
additional fee (equal to staff overtime pay) in order
to achieve the desired final issuance date (please not,
processing times are subject to the regulatory time
frames mentioned above). In addition, LDEQ operates
under the EPA Performance Partnership Grant (PPG),
which requires WPD to remain 90% current on all permits
issued. The current state and federal regulations, the
expediated permitting program, and the PPG ensure that
permit decisions are made in a timely manner, which is
achievable for the Department.
Section 1: Explanation ofKev Chanaes
General comment - Under the Agency's streamlining
outreach effort the NTWC identified thirteen (13) core
tribal measures that are vital for tracking tribal water
program results and management activities. Each of
these priorities were categorized and ranked for
consideration as core measures under the ELMS
NTWC
Page 1
Beginning in FY 2019 all Office of Water core measures must be tracked
on a monthly or at least a quarterly basis.
Because the data supporting the former six tribal-specific measures
relating to safe drinking water and basic sanitation are largely tracked by
entities other than the EPA (i.e., the Indian Health Service and state of
Alaska) and are only able to be supplied to the EPA on an annual basis,
No change to the
guidance.
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
process. None of the tribal measures identified by the
NTWC were considered as core measures and eleven
(11) of the thirteen (13) tribal specific measures have
been removed from the draft NWPG. Of the remaining
three measures that mention tribes or Indian Country,
the two (2) related to tracking the backlog of NPDES
permits did not rank any tribal priority list, including the
NTWC's listing.
The NTWC is particularly concerned with the removal
of measures related to tribal access to safe drinking water
and basic sanitation, as well as tribal priorities related to
monitoring, protecting and improving the quality of tribal
waters. We encourage the Office of Water (OW) to
reconsider the removal of these extremely important
tribal measures and reinstitute some of the tribal
measures which the NTWC identified as "Absolutely
Essential" and "Highly Significant" (SDW-22, SDW-SP3,
WQ-23, WQ-24, WQ-SP14a, and WQ-SP14B).
they did not meet the measure requirements of the Agency and,
therefore, were ineligible to be considered as FY 2019 National Water
Program core measures. While these historic tribal measures will not be
part of the National Water Program's core measures, the Agency will
continue to track and report this information. The EPA plans to annually
post the prior year's drinking water and clean water tribal performance
results to its website. Those metrics will continue to be the:
• Percent of the population in Indian country served by community
water systems that receive drinking water that meets all
applicable health-based drinking water standards.
• Percent of 'person months' (i.e., all persons served by community
water systems times 12 months) during which community water
systems in Indian country provide drinking water that meets all
applicable health-based drinking water standards.
• Number of tribal community water systems (CWSs) that have
undergone a sanitary survey within the past three years (five
years for outstanding performers or those ground water systems
approved to provide 4-log treatment of viruses).
• Number of American Indian and Alaska Native homes provided
access to safe drinking water in coordination with other federal
agencies.
• Number of American Indian and Alaska Native homes provided
access to basic sanitation in coordination with other federal
agencies.
• Percent of serviceable rural Alaska homes with access to drinking
water supply and wastewater disposal.
For the water quality standards program, the EPA has removed two
previous tribal-specific measures (i.e., the number of tribes that have
water quality standards approved by the EPA, and the number of tribes
with recently updated water quality standards); however, the EPA
continues to publish the tribal Water Quality Standards (WQS) approval
information, together with approved and pending treated in a manner
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
similar to a state (TAS) applications, on its website.2 The EPA also has a
core measure to track the backlog of state and tribal water quality
standards revisions not yet acted upon.
With respect to water quality monitoring, the EPA previously had two
tribal-specific measures: (1) Number of tribes that currently receive
funding under section 106 of the Clean Water Act that have developed
and begun implementing monitoring strategies that are appropriate to
their Water Quality (WQ) program consistent with EPA Guidance, which
had almost been completely realized; and (2) Identifying monitoring
stations on tribal lands that are showing no degradation in water
quality. The EPA is no longer collecting data on either measure.
The Agency continues to work closely with other federal agencies to
address the challenges of tribal communities. In addition to supporting
the implementation of the Drinking Water Infrastructure Grants Tribal
Set-Aside, Tribal Public Water System Supervision (PWSS), and the
National Water Operator Certification Program, the EPA is launching
three new grant programs under the Water Infrastructure Improvements
for the Nation (WIIN) Act to support lead testing in schools, disadvantage
communities and reducing lead exposure in distribution systems. The EPA
continues to be part of the Infrastructure Task Force (ITF), and as part of
this effort continues to post to EPA's website the results of the tribal
access to safe drinking water and health-based measures. This
information is used to inform resource and technical assistance for the
tribal public water systems.
Section II: Ooerationalization of Strateaic Measures
"Key Strategies" are identified to implement the strategic
measures to reduce community water system non-
compliance with health-based standards. The phrase that
identifies tribal strategies needs further clarification.
NTWC
Page 2
Thank you for your comment. We have changed the word in that section
in response to this comment.
Made word change in
Section II of the guidance.
2 Water Quality Standards approval information: https://www.epa.gov/wqs-tech/epa-actions-tribal-water-qualitv-standards-and-contacts.
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
Specifically, the portion of the sentence which reads..."to
include implementation of disparate tribal drinking water
programs". The NTWC understands the challenges of
implementing tribal drinking water programs, perhaps the
word "distinct" would better serve the definition.
Priority Actions for EPA/State/Tribal collaboration
General comment -The strategic measure to reduce the
number of square miles of watershed with surface water
is not meeting standards by 37,000 square miles. Despite
strong collaboration between Federal, State and Tribal
Partnerships, the NTWC believes that this measure would
be difficult to achieve given the current effort underway
to narrow the definition of jurisdictional waters.
NTWC
Page 4
The EPA has set ambitious targets in the FY 2018-2022 Strategic Plan. The
Agency will carefully consider the public comments received on the
proposed rule to revise the definition of "waters of the United States"
before taking final action. The EPA notes that as discussed in the
economic analysis and resource and programmatic assessment for the
proposed rule, many state programs regulate and protect waters that are
outside the jurisdictional scope of the Clean Water Act. Tribes also can
protect waters under tribal law.
No change to the
guidance.
Address Nonpoint Source (NPS) Pollution
General comment- The NTWC support all the strategies
identified in addressing nutrient pollution impacting our
nation's waters, including reinstating funding to the tribal
NPS 319 program in the FY 2020 President's budget.
NTWC
Page 4
Thank you for your comment. The EPA's funding levels will be determined
through the annual federal appropriations process.
No change to the
guidance.
Focus on Rule of Law and Process
General comment - The NTWC recommends that
the 404- program assumption language which clarifies
which waters can be assumed under approved state
jurisdiction explicitly require that permit processes within
ceded territory not present an onerous burden on tribes'
exercise of treaty-protected rights, including activities
designed to conserve and protect those rights.
NTWC
Page 4
The EPA will consider this comment as we develop our proposed rule to
modernize the state/tribal assumption regulations. The EPA is committed
to continuing our collaborative effort to engage states and tribes as we
develop this rule.
No change to the
guidance.
Communicate with Partners
Comment recommendation - include continual
engagement with the Nation Tribal Water Council and
NTWC
Page 4
Thank you for your comment. We have added tribal organizations to that
section in response to this comment.
Added tribal organizations
to the section on how we
communicate with
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
National Tribal Caucus as organizations that assist the
agency, states, and tribes in environmental matters
affecting tribal jurisdictions.
partners.
Program Specific Guidance
Comment recommendation - The last sentence of
the first paragraph, referencing to reliance on ETEPs
to assist in conducting federal environmental
program activities in Indian country, including direct
implementation and technical and financial
assistance, should be removed.
NTWC
Page 6
Collaboration with tribes is guided by multiple policies and documents
that outline EPA/tribal roles, responsibilities, and goals. As stated in the
EPA Strategic Plan, which guides the National Program Guidances, EPA-
Tribal Environmental Plans are a "joint planning document" which
"identify tribal, EPA, and shared priorities, and the roles and
responsibilities for addressing those priorities." See Office of International
and Tribal Affairs response to comments for additional information. Their
guidance can be found at: https://www.epa.gov/planandbudget/national-
No change to the program
guidance.
If the Agency wants to broaden its reliance on ETEPs to
define the relationship between various offices including
OW and Tribes, it should proceed with an action separate
from the NPMG process, after thorough and meaningful
government-to-government consultation has occurred.
program-guidances.
By September 30, 2022, reduce the number of square
miles of watershed with surface water not meeting
standards by 37,000 square miles.
• The key strategies state that EPA is committed to
assisting states to adopt updated water quality
standards that support designated uses. Updating
our water quality standards to EPA's
recommendations will do nothing to reduce the
number of miles of impairments. For example, by
adopting EPA's recommended mercury standards,
we significantly increased the watersheds not
meeting our standards. Adopting nutrient
standards will certainly not improve our percent
of impaired waters.
South Dakota
Department of
Environment and
Natural
Resources
Page 4
The EPA has set ambitious targets for the measures included in the FY
2018-2022 Strategic Plan. We recognize it will take more than setting
water quality standards to achieve this goal, but it is one tool for
addressing the impairments in the Nation's waters.
In reference to the section 319 funding, Congress makes the final decision
on appropriated funds for the EPA.
The EPA will carefully consider South Dakota's comment on implications
of the proposed rule to revise the definition of "waters of the United
States" as we develop a final rule.
No change made to the
guidance.
13
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
• EPA says: Nonpoint source pollution, including
excess nutrient pollution, is one of America's most
widespread, costly, and challenging
environmental problems.
• We agree and that is why EPA should stop efforts
to eliminate or defund the 319 Program.
• EPA's "Focus on Rule of Law and Process
discussion" talks about "modernizing Clean Water
Act section 404 program assumption regulations."
With the proposed waters of the US definition,
EPA seems to be pulling back significantly from
which waters are subject to federal jurisdiction. In
particular, many wetlands in South Dakota will no
longer be considered WOTUS under the proposed
regulation. South Dakota does not have a similar
program and does not have the resources to
assume a 404-style program to protect our waters
of the state, much less take on the 404
permitting program for WOTUS in South Dakota.
This will create a void in protection with no plan
or resources to address it.
By September 30, 2022, reach all permitting-related
decisions within six months.
• We would ask that the following language be
added to this guidance "of receiving a complete
application."
• Anything EPA can do to help states streamline,
improve, or address Endangered Species Act
consultation issues would be helpful.
South Dakota
Department of
Environment and
Natural
Resources
Page 4
At this time, this measure applies to the EPA-issued permits only. The EPA
believes that for the EPA-issued permits, it is appropriate to look at the
time between when a permit application is first received and when the
permit is issued when evaluating the six months target. This approach
provides incentives for the EPA to improve the permit application
preparation and submittal process so as to minimize delays in permit
issuance. Additionally, the EPA is working to streamline all aspects of the
permitting processing, including consultations, where applicable.
No changes to the
guidance.
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
Providing Regulatory Certainty
In this section, EPA talks about states using their 401
certification authorities to protect wetlands. However, as
noted above, many of our wetlands would no longer be
subject to federal jurisdiction under the proposed WOTUS
regulation. Our 401 certification authority begins and
ends with the issuance of a federal permit. If there is no
federal permit, we have no authority under Section 401.
South Dakota
Department of
Environment and
Natural
Resources
Page 5
As discussed in the supporting documents for the proposed rule to revise
the definition of "waters of the United States," the EPA recognizes that
where federal permits or licenses would not be required for non-
jurisdictional waters, 401 certification would not be required.
No changes to the
guidance.
Workforce Development
• EPA says "Roughly one-third of water treatment
facility operators will be eligible to retire in the
next 10 years." It is unclear if this includes
wastewater treatment facility operators. We
recommend they also be included. In our state,
we estimate the percentage of wastewater
operators eligible to retire in the next 10 years to
be higher than one third.
South Dakota
Department of
Environment and
Natural
Resources
Page 6
Thank you for your comment. The language is changed to state
"water and wastewater treatment facility operators." The number
("Roughly one-third") is a national estimate and may vary from state to
state. Some states will have higher or lower estimates.
Thank you for your assistance to troubleshoot the redesigned ATTAINS.
We are making monthly deployments to improve the efficiency of the
system.
Added "...and
wastewater" to section on
Workforce Development.
• The implementation of ATTAINS is listed as a new
and high priority item. EPA was unprepared to
accept the Integrated Report through ATTAINS in
2018. South Dakota was one of the few states
that submitted information through ATTAINS and
we had to spent a lot of time helping to
troubleshoot the system.
15
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Comment
Commenter(s)
Location
in Draft
Guidance
National Program Offices Response
Action Taken in Final
Guidance
Section 106 Grant Guidance
On page 10, the draft guidance states:
Section 106 grant guidance covers the core water
pollution control activities: water quality
standards,
water quality monitoring, impaired waters listing
and total maximum daily loads (TMDL)
development,
NPDES permitting, enforcement and compliance,
and assumed programs for dredge and fill
permitting
and enforcement.[emphasis added]
Looking at the FY 2018-2019 guidance, it does allow
states to use 106 money to administer dredge and fill
programs, but these programs have never been listed as a
core water pollution control activity. For example, on
page 20 of the final FY 2018-2019 guidance, it says:
This grant guidance covers only the core water
pollution control activities; water quality
standards, water quality monitoring, impaired
waters listing and total maximum daily loads
development, National Pollutant Discharge
Elimination System permitting and enforcement
and compliance.
At this time we do not believe EPA is adequately funding
existing state core program areas. EPA should not take
funding away from existing core program areas to
incentivize state dredge and fill programs.
South Dakota
Department of
Environment and
Natural
Resources
Page 10
The section 106 guidance has always included NPDES permitting and
enforcement as a core activity, but the EPA acknowledges that the
section 404 state assumed dredged and fill permit program has not been
specifically identified as a core water program activity. However,
promoting cooperative federalism through increasing state and tribal
assumption of the Clean Water Act section 404 program is a priority of
the national water program. Therefore, the introductory paragraph was
revised and the text on the assumption of the section 404 program will be
reflected in the bulleted list of section 106 priorities. Please note, states
can use their 106 funds for 404 assumed dredged and fill program. Using
section 106 funds to implement the section 404 program is at a state's
discretion.
Edits made to the section
106 section of the
guidance.
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