BEFORE THE POLLUTION CONTROL BOARD
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C .E I
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o
OF THE STATE
OF ILLiNOIS
CLERK’S
OFFICE
AUG
102001
STATE
OF IWN
IN THE MATTER OF:
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~
COfltTOJ
Boa~d
Revisions to
Antidegradation Rules:
)
R01-13
35
Iii.
Adm.
Code 302.105, 303
.205,
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,.~-y
303.206 and
106.990-106.995
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MEMORANDUM REGARDING THE PROPOSED RULE,
FIRST NOTICE,
OF THE ENVIRONMENTAL LAW AND POLICY
CENTER, FRIENDS
OF
THE FOX RIVER,
PRAIRIE RIVERS NETWORK AND SIERRA CLUB
The Environmental Law and Policy Center ofthe Midwest, Friends of the Fox River,
Prairie Rivers Network and the Illinois Chapter ofthe Sierra
Club (collectively “Environmental
Groups”) submit this memorandum regarding the Proposed Rule, First Notice, issued by the
Board with its Opinion and Order ofJune 21, 2001.
Genera.! Comments
The Environmental Groups believe that the rules proposed by the Board on first notice
should be adopted as proposed, except as to a few provisions that
should be clarified or
strengthened.
Generally the proposed rules
create sound antidegradation standards and
regulations
for Illinois that should workably protect Illinois waters from injury to
existing uses
and unnecessary degradation.
The Board has wisely rejected efforts to
create arbitrary
exceptions from the coverage ofthe rules that would have allowed Illinois waters to be degraded
in a piecemeal fashion.
The proposed provisions for designation and protection of Outstanding
Resource Waters (“ORW”) are also sound.
Specific Comments
on Certain Provisions of the Proposed Rule
The Board did not adopt a number ofthe proposals made by the Environmental
Groups in
~arlier memoranda and testimony in these proceedings.
No purpose would be served by
repeating herein arguments, suggestions or comments that the Board has already seen and
presumably factored into its
First Notice proposal or rejected.
Some comment regarding certain
provisions ofthe Board’s First Notice Proposed Rule, however,
is useful or necessary.
Proposed Section
102.810
The Environmental Groups believe that the notice provisions for petitions relating to the
designation of an ORW
is adequate.
Proposed Section
102.830(b)(1)
This provision contains language for designation ofan ORW that speaks of“uniquely
high” biological or recreational value.
As was pointed out in one ofthe Board’s questions to the
Agency, see December 6, 2000 Tr.
at 42-3, the term “unique” is
somewhat ambiguous.
The
Board would improve the clarity ofthe proposed rule if it substituted “outstanding”or “very
high”
for “uniquely high”.
The most precise language to use, however, would be the federal
language which is
“of exceptional recreational or ecological
significance.” S..~40
CF.R.~131.12(a)(3).
Proposed Section 302.105(d)(6)
The Environmental Groups appreciate that reconciling use ofgeneral permits with proper,
anti-degradation policy is
difficult. We are pleased that the Board has seen fit to give direction to
the Agency against the use of general permits
for activities that may affect waters of“particular
biological
significance.”
2
The Environmental Groups believe further that, particularly given the submissions and
testimony offered by the Illinois Department ofNatural Resources at the third hearing, the term
“particular biological significance” can be more precisely set
forth in the rules.
The testimony of
Rob Moore states proposed language to do this.
Proposed Section 302.105(f)
The Board was wise to
adopt this section regarding performance of antidegradation
assessments as part ofthe Board standards rather than leaving this matter for later Agency rule-
making. It is
critical that clear procedures be established for the Agency as soon as possible
given the ongoing need to consider permit applications.
Proposed 302.105(f)(2)(B)
The meaning of this provision
is unclear. Perhaps there
is a misprint in this
language.
In
any event, applicants should be required to go through the permitting process before taking
any
appeal to the Board.
Notice to the Illinois Department ofNatural Resources
Consultation by the Agency with other state agencies with biological expertise
(particularly the Illinois Department ofNatural Resources) regarding permitting matters is of
great importance to the process.
This
is recognized by the Board in proposed §302.105(f)(3)(C)
where it is required that the comments ofJDNR and certain other bodies be summarized in the
fact sheet accompanying the public notice ofthe draft permit.
However, the proposed rule does
not clearly require that IDNR or other bodies with biological expertise be informed ofpermit
applications or the assessment process.
Obviously, there will never be any comments by IDNR
3
summarized in the public notice if IDNR receives no notice of the prOposed permit prior to
the
time ofthe public notice.
Accordingly, we propose that a new subsection 302.1
05(f)(2)(E)
be
added stating that:
(E) After review pursuant to
subsection (f)(2)(A)(i) or receipt ofan application
pursuant to
subsection (f)(2)(A)(ii), the Agency shall notify the Illinois
Department ofNatural Resources ofthe review or application as soon as
practicable to
allow IDNR an opportunity to
prepare comments or
recommendations prior to issuance ofthe public notice required by 35
Ill.
Adm.
Code 309.109 or CWA Section 401.
Proposed Section 303.205
Again the term “uniquely high” is used. For the reasons given above in our comment on
proposed Section 102.840, “outstanding,” “very high” or use of the federal language is
preferable.
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I
CONCLUSION
The Board should
adopt in
final the antidegradation standards proposed by the
Board on First Notice with the minor changes and
clarifications presented and discussed in this
memorandum.
Respectfully submitted,
AlbertF.Ettinger(
C #3125045)
Counselfor Environmental Law and Policy
Center, Friends of
the
Fox River,
Prairie Rivers Network,
and Sierra Club
35 E. Wacker Dr. Suite
1300
Chicago, Illinois 60601-2110
312
795
3707
Jack Darin, Director
Illinois Chapter
-
Sierra Club
200 N. Michigan Ave. Suite
505
Chicago, Illinois, 60601
Robert Moore, Executive Director
Prairie Rivers Network
809 South Fifth Ave.
Champaign, Illinois 61820
Cynthia L.
Skrukrud, President
Friends of the Fox River
4209W. SolonRd.
Richmond, Illinois 60071
5
