Not Exactly Smooth Sailing Through CWA Regs on TMDLs
By Hugh V. Archer, Ph.D., P.E., President, Mavickar Environmental Consultants, Inc. and Jennifer Rowles, Aquatic Ecologist, Susquehanna River Basin Commission
The following is a study of how Pennsylvania is coping and complying with the Clean Water Act's goal of cleaning up the nation's waters. The first step has been a big one—identifying the impaired waters. Next is creating a plan to set and meet TDMLs.
Contents
EPA memorandum sets out water quality assessment and plans to improve
DEP ahead of schedule assessing Pennsylvania's surface water
Assessment depends on aquatic biologist's assessment of watershed
Of the 28 approved by EPA, only six address point source pollution
Commonwealth may have difficulty handling the formidable number
Requirements would significantly slow TMDL development process
Proposed rule has generated heat
Point source owners fear they may have to bear burden of nonpoint sources
As part of an ongoing nationwide legal action, to force the federal government to improve surface water quality, the American Littoral Society and the Public Interest Research Group of Pennsylvania (PENNPIRG) filed a civil action complaint in Federal District Court in January of 1996.
The complaint alleged that the federal Environmental Protection Agency had failed to fulfill its nondiscretionary duty to identify and improve surface water quality in streams that failed to meet water quality standards in the Commonwealth of Pennsylvania. Identify means to list the impaired surface waters developed pursuant to Section 303(d) of the federal Water Pollution Control Act and the implementing regulations at 40 CFR §130.7 [Section 303(d) List]. Improve means to establish and implement TMDLs (Total Maximum Daily Loads), for the impaired surface waters. Water quality standards are the designated water uses to be protected and the narrative or numeric water quality criteria necessary to protect the designated uses.
EPA memorandum sets out water quality assessment and plans to improve (top)
The civil suit generated a series of settlement negotiations between the litigants that culminated in a court issued Consent Decree in April 1997. The Consent Decree and a subsequent Memorandum of Understanding (MOU) executed between EPA and the Pennsylvania Department of Environmental Protection (DEP) sets out the water quality assessment and TMDL obligations with a schedule for achieving and reporting on certain milestones.
DEP ahead of schedule assessing Pennsylvania's surface water (top)
DEP has spent the last three years using a Modified Rapid Bioassessment Protocol (MRBP) for aquatic macroinvertibrate, to assess surface waters in the Commonwealth. The three-year effort, with support from the Susquehanna River Basin Commission and the Interstate Commission for the Potomac River Basin, has resulted in approximately 42% of the 83,000 stream miles in the state being assessed. At this rate of progress, DEP will complete the surface water assessments schedule agreed to well within the 10 years by EPA.
With 42% of the assessments completed, 20% of the assessed surface waters (7,160 miles) are not meeting quality standards and will need to be prioritized and have TMDLs developed. The "draft" Year 2000 Section 303(d) List also includes 59 lakes, with a combined surface area of 26,203 acres. Nutrients and thermal modifications are the primary impairments. Non-point sources account for almost 85% of the documented impaired stream miles with agriculture, abandoned (acid) mine drainage (AMD) and urban runoff being the leading sources of non-point source pollution. Point sources (POTW and industrial discharges) account for less than 6% of the water quality impairment in streams, in addition to their contributions of nutrients to Lake Impairment.
The MRBP, developed by Deeps Bureau of Watershed Conservation, provides for field biological screening and biological assessment methods to determine if aquatic life uses are impaired and if so, the cause and sources of the impairment. The MRBP includes a description of the methods to be used to prioritize and locate sampling stations and for collecting habitat, water quality and biological field data. Based on a coding system, the type, diversity and distribution of macroinvertibrates are used to determine whether or not a surface water is impaired.
Assessment depends on aquatic biologist's assessment of watershed (top)
In most cases, no chemical sampling is done, therefore, the determination of sources and causes of stream impairment becomes very subjective relying on the aquatic biologists' assessment of land use practices in the impaired reach or watershed. In developing the Section 303(d) List, the state or EPA is required to evaluate and use all existing and readily available water quality related data and information. This will tend to further increase the subjectivity of the Section 303(d) List, allowing for potentially legitimate challenges to the List, where TMDLs impose economic costs without clear irrefutable documentation of environmental benefits.
Although the assessment of macroinvertibrates provides a fairly sound, stable scientific basis for determining water quality impairment, there are so many variables involved which are highly time dependent, that only long term collection and assessment of water quality data will provide a sound scientific defense for the Section 303(d) List. Ultimately, it will be court decisions that will define what constitutes "sufficient" data to support 303(d) listings TMDLS.
TMDLs are required for water quality limited segments (WQLS) where water quality does not or will not meet applicable standards after the application of technology-based effluent limitations to point sources, required by 301(b) and 306 of the CWA.
TMDLs are framed by the water quality standards and are defined as the maximum assimilative mass loading capacity of a water body on a pollutant-by-pollutant basis. A TMDL is the sum of (a) the individual Wasteload Allocations (WLA) for point sources, (b) the Load Allocation (LA) for non-point sources and (c) background conditions including a Margin of Safety (MOS) to account for uncertainties and potential future growth.
Section 303(d) of the CWA and the implementing regulations establish three basic steps to be completed by tribal nations, states and EPA in order to maintain compliance with the CWA:
- Assessment - identify impaired surface waters requiring TMDLs and establish a priority ranking of the water quality limited segments (WQLS).
- Develop TMDLs in accordance with the WQLS priority ranking.
- Implementation - include the EPA-approved TMDL loadings into water pollution control regulatory requirements.
All of the above three steps are to be completed with full and complete public input and participation, which has to be documented.
Of the 28 approved by EPA, only six address point source pollution (top)
Pennsylvania has to date submitted a total of 30 TMDLs to EPA Region III with 28 having been reviewed and approved. Of the 28 approved TMDLs, six address point source related impairment and will most likely be implemented in the next round of NPDES permit renewals.
Fourteen of the approved TMDLs are non-point source focused, almost all being AMD and eight are statewide TMDLs for PCBs, pesticides and priority organics in fish tissue. With an estimated 4,000 TMDLs necessary from 42% of the streams assessed, the Commonwealth may have some difficulty achieving the estimated 600 TMDLs they have agreed to complete, if resources are available, by 2009.
Commonwealth may have difficulty handling the formidable number (top)
Although some of these can be grouped on a watershed basis and completed as one project, the number to be done is still a formidable one. Should the Commonwealth fail to assess, list and develop and implement TMDLS, the water quality obligation becomes the responsibility of EPA.
In August of 1999, EPA published proposed regulations to revamp the TMDL program to more clearly define how the program would function to achieve its water quality objectives.
The proposed rule-making included, among other things, two important new requirements that would (a) require states to now include implementation plans with TMDLs for approval and (b) require municipal and industrial facilities seeking new or expanded (20% or greater) discharges to impaired waters to offset their new wasteloads by removing 150% of the increase in load that they were seeking.
Requirements would significantly slow TMDL development process (top)
If finalized, these requirements would significantly slow the TMDL development/approval process, precipitating more litigation from the environmental groups and add significant wastewater treatment costs to municipal and industrial growth. Even if the offset provisions were to be eliminated from the proposed regulations' any new or existing point source discharger proposing to add pollutants to a 303(d) listed water body would have a difficult time securing approval. The approval would be next to impossible to achieve if the proposed new and/or increased pollutant is the existing cause of the water body impairment.
Proposed rule has generated heat (top)
Nationally, the EPA proposed rule has generated heated debates and litigation. States, industry and trade groups call the proposed rule too restrictive, illegal, undermining states' authority, imposing significant administrative burdens and would impede economic growth. It also tends to motivate sprawl as new growth would locate in areas where there were no impaired water bodies and subsequently, less development costs.
Environmental groups, led by the Natural Resources Defense Council (NRDC), on the other hand, support the expanded scope of the rulemaking package but insist that it is not comprehensive enough. Litigation in California has the American Farm Bureau Federation (AFBF) challenging whether or not the CWA gives EPA the authority to address non-point source pollutant contributions to water quality impairment.
Point source owners fear they may have to bear burden of nonpoint sources (top)
The Association of Metropolitan Sewerage Agencies strongly opposes the AFBFs position. It fears that if agriculture and nonpoint sources are exempted from the impaired waters/TMDL program, then NPDES point sources would have to shoulder the burden and consequently the cost of cleaning up the nation's waters.
Section 101(a) of the federal Clean Water Act established the national objective of restoring and maintaining the chemical, biological and physical integrity of the nation's waters through the control of point and non-point sources of pollution. While the CWA's objective remains relatively clear and necessary for achieving sustainable growth, the regulatory program it has in place for achieving the objective (the NPDES permitting/monitoring/compliance program) is currently only applicable to point source discharges. It then becomes absolutely necessary that point sources, and their consultants and organizations which are directly or indirectly associated with them, become proactively involved in how Pennsylvania develops and EPA approves the Commonwealth's Section 303(d) List and how TMDLs are developed and implemented to restore impaired surface water bodies.
Reprinted with permission from Keystone Water Quality Manager, a publication of the Pennsylvania Water Environment Association. www.pwea.org.
Edited by Joyce Everhart Jungclaus, Public Works Online