Environmental
MAY 2002
States Face Pressure to Assess
More of the Nation’s Waters and Place More
Stringent Clean Water Act Limits on Permittees
Efforts have been underway since the passage of the
Clean Water Act in 1972 to provide a comprehensive
assessment of the quality of the nation’s waters. Yet in
its 1998 report to Congress, the Environmental
Protection Agency (“EPA”) reported that 75% of the
nation’s rivers and streams remained unassessed.
Similarly, 60% of the nation’s lakes, ponds and
reservoirs and 70% of its estuaries were also
unassessed. On November 19, 2001, EPA issued its
2002 Integrated Water Quality Monitoring and
Assessment Report Guidance (“Integrated Guidance”)
which pushes states and other jurisdictions toward
more comprehensive and uniform assessment of their
waters. This guidance is available at http://
www.epa.gov/owow/monitoring/wqreport.html. As
explained below, the ultimate result of this effort is
likely to be more stringent limits being placed on
permittees that discharge water subject to the Clean
Water Act, even if the permittees’ operations have not
changed. This is particularly true in light of a recent
clarification to the guidance issued by EPA on March
26, 2002 that will expand the listing of impaired waters
based on the use of biological data. The regulated
community has a vital stake in assuring the accuracy
and soundness of water quality assessments conducted
by the states, as they may well set in motion steps
leading to more stringent permit limits. States are
required to submit their water quality assessments and
lists of impaired waters under EPA’s new Integrated
Guidance by October 1, 2002. Thus, regulated
community scrutiny and involvement in the process
over the next several months is warranted.
CLEAN WATER ACT REPORTING REQUIREMENTS
Section 305(b) of the Clean Water Act requires states to
assess the quality of their waters biennially. The focus
of the section 305(b) assessment is the extent to which
navigable waters “provide for the protection and
propagation of a balanced population of shellfish, fish,
and wildlife, and allow recreational activities in or on
the water.” These goals are often referred to as the
Clean Water Act’s fishable and swimmable goals.
Section 303 of the Clean Water Act establishes the
framework for achieving these goals by requiring states
to adopt water quality standards. Specifically, states
are required to:
(a) Designate particular uses for each body of water
with their boundaries, and
(b) Establish water quality criteria as benchmarks for
determining whether those uses have been
protected.
See 33 U.S.C. § 1313(c)(2)(A). For example, a state
may designate that certain streams are to be protected
for use as cold-water fisheries (i.e., trout streams). To
protect this use, the state then adopts water quality
criteria for parameters such as dissolved oxygen and
temperature that, if achieved, will protect cold-water
fisheries. In its 305(b) report, the state describes the
extent to which its cold-water fisheries (and other
designated uses) are achieving established water
quality criteria.
Section 303(d) of the Clean Water Act requires states to
identify waters within their boundaries for which
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effluent limitations imposed on permitted discharges
are not stringent enough to implement applicable water
quality standards. These waters are placed on the
state’s “impaired waters” list (also referred to as the state’s
“303(d) list”). To continue the above example, a state may
establish dissolved oxygen water quality criteria to protect
streams designated for use as cold-water fisheries. If a
facility is permitted to discharge treated wastewater into
such a stream and the dissolved oxygen water quality
criteria for the stream is not being achieved, this stream
would be included on the state’s impaired waters list.
For impaired waters, states are required to develop total
maximum daily loads (“TMDLs”) for each pollutant
causing nonattainment of a water quality standard. See
33 U.S.C. § 1313(d)(1)(C). The state is then required
to take actions to ensure that discharge loading from
both point and nonpoint sources within the affected
watershed do not exceed the maximum daily load for
the pollutant of concern. In the above example, a
TMDL would need to be developed for dissolved
oxygen if the stream is not achieving the water quality
standard established by the state for that parameter.
Each activity within the watershed that contributes
oxygen-demanding substances to the stream would be
allocated a “share” of the total maximum pollutant load
that the stream can withstand and still achieve the
desired dissolved oxygen level. Such activities would
include, for example, loading from sewage plants,
fertilizers from farms, and organic nutrient run-off
from forests. Because states already have permitting
programs in place to regulate point source discharges,
facilities with existing permitted discharges are likely
to bear the initial brunt of the TMDL process. TMDLs
often result in more stringent permit limits for such
facilities, even when failure to achieve a particular
water quality standard is primarily caused by other
discharges (e.g., runoff from nonpoint sources). New
requirements relating to the control of nonpoint sources
(e.g., stormwater runoff) may also be included in a
facility’s permit. Although TMDL implementation
may focus initially on permitted facilities, those
engaged in activities resulting in nonpoint source
discharges (e.g., agriculture, golf courses, timbering
operations) are likely to find themselves also subject to
new regulatory control.
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EPA’S EXPANDING REPORTING REQUIREMENTS
To perform the assessments required under sections
305(b) and 303(d) of the Clean Water Act, EPA has
issued separate guidance for each type of assessment.
Over the years, these guidance documents have
encouraged states to collect increasingly more
comprehensive water quality data. States have
developed varied monitoring approaches to generate
the needed data to satisfy their reporting obligations.
Most states have established a network of monitoring
stations within their boundaries that are sampled
periodically to generate water chemistry data. Because
the cost of collecting water chemistry data for all
waters is prohibitive, states often supplement their
water quality network data with other sources of
information such as biological assessments, data
generated though permitting activities, or data from
volunteer monitoring programs.
While waters identified as not meeting designated uses
in a state’s 305(b) report should also be waters listed on
its 303(d) list, the information required to be reported
under 305(b) and 303(d) has not been consistent, or the
information needed to implement both statutory
provisions has been collected separately despite the close
relationship of these provisions. Over time, however, the
level of information required by EPA to be included in
state 305(b) reports has increased and the distinctions
between the reporting requirements under 305(b) and
303(d) have blurred. EPA’s Integrated Guidance now
requires states to prepare an integrated report that satisfies
both requirements. EPA asserts that most of the data and
information needed to generate the integrated reports were
required in earlier guidance for 305(b) reports and 303(d)
lists.
EPA’s Integrated Guidance requires states to delineate
water quality assessment units within their boundaries
and then to place each assessment unit into one of the
following five categories:
1. Attaining water quality standards and no use is
threatened;
2. Attaining some designated uses with no
threatened use and insufficient or no data or
information available to determine if the
remaining uses are attained or threatened;
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3. Insufficient or no data and information to
determine if any designated use is attained;
4. Impaired or threatened for one or more designated
uses but no TMDL(s) is required because:
—TMDL(s) has been completed;
—Other pollution control requirements are
reasonably expected to result in attainment in the
near future; or
—Impairment is not caused by a pollutant;
5. Impaired or threatened for one or more designated
uses by a pollutant(s) and a TMDL is required.
Under the Clean Water Act, the deadline for the next
305(b) report is April 1, 2002. States would also have
been required to submit their revised lists of impaired
waters to EPA by this date. However, the Integrated
Guidance gives states an additional six months (until
October 1, 2002) to submit their integrated reports.
CONTROVERSIAL USES OF
WATER QUALITY DATA
The approaches taken by states to monitor and assess
their waters vary considerably—often making it
difficult for the public and the regulated community to
understand how the 305(b) and 303(d) analyses are
performed and how designations are made. EPA has
been working with the states and other stakeholders to
develop a national Consolidated Assessment and
Listing Methodology (“CALM”) designed, according
to EPA, to improve the accuracy and completeness of
water quality reporting. The final CALM document
was targeted for release by October 15, 2001, but has
been delayed. Some of the concepts mentioned in
EPA’s Integrated Guidance (e.g., use of probabilistic
monitoring designs and assessments based on
biological data) are to be addressed by CALM.
Presumably, the direction EPA has taken in the
Integrated Guidance will be consistent with CALM,
but that remains to be seen.
One aspect of EPA’s Integrated Guidance that is
destined to create controversy is the use of biological
monitoring information to identify impaired waters. If
a state determines that an assessment unit does not
meet a designated use based on biological information,
MAY 2002
and the impairment is caused or suspected to be caused
by a pollutant(s), EPA recommends listing the unit in
the category requiring a TMDL (Category 5). In its
original guidance, EPA allowed a state to list an
assessment unit in Category 3 (insufficient or no data
and information to determine if any designated use is
attained) if biological information showed that a use
was not being attained, but the cause of the
impairment was unknown. In a clarification to the
guidance issued on March 26, 2002, EPA removed
this provision from the guidance stating that
When existing and readily available data and
information (biological, chemical or physical) are
sufficient to determine that a pollutant has caused,
is suspected of causing, or is projected to cause the
impairment, the AU [assessment unit] should be
listed in Category 5.
EPA does not provide any guidelines for determining
when an impairment is caused or suspected to be
caused by a pollutant(s). This issue may be addressed
with the release of CALM. In the meantime, an
expansive interpretation of this recommendation
could lead to substantial increases in the number of
waters identified as impaired and needing TMDLs for
some states.
Another EPA recommendation that could ultimately
expand a state’s list of impaired waters is the use of
probabilistic monitoring designs applied over large
areas to provide a “snapshot” of waters that may or
may not be impaired. Probabilistic monitoring
involves monitoring a statistically representative subset
of water bodies to characterize overall water quality. A
few states have used this approach statewide. Others
have used it to characterize water bodies not included
in their traditional monitoring programs. Still others
have not used it at all. To be effective for both
comprehensive 305(b) assessment and specific 303(d)
listing, probabilistic monitoring designs need to
provide extensive coverage. Moreover, as with all
statistical approaches seeking to measure nature, the
“representativeness” and accuracy can vary
considerably. Some states have attempted to overcome
the problems of statistical representativeness and
coverage by rotating monitoring stations over a period
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OPPORTUNITY FOR PUBLIC INVOLVEMENT
of several years throughout a network designed to
assess all waters. As states move toward more
comprehensive assessments, the number of waters
identified as being impaired is likely to increase.
With continuing pressure from EPA to increase the
total percentage of waters being assessed, states are
likely to continue to expand their monitoring networks
and increase the use of various types of data, including
biological monitoring, to assess the quality of their
waters. This expansion is likely to result in more
waters being identified as impaired. The regulated
community, particularly those discharging to impaired
or threatened waters or waters not previously assessed,
should be aware of these efforts because it is the first
step in an effort by the government to impose more
stringent and expensive effluent limitations on
discharges of water by regulated entities. Once a water
body has been identified as threatened or impaired, it
becomes increasingly difficult to challenge more
stringent permit limits.
EPA’s Integrated Guidance recommends that states
provide for public participation in the development of
their integrated reports prior to submission to EPA. The
regulated community should make use of any such
opportunities to ensure that these integrated reports
reflect well-reasoned water quality decisions. As EPA
has allowed the states an additional six months to
prepare their reports in the integrated format, the next
round of reports are due to be submitted on October 1,
2002. To ensure that you do not miss any public
participation opportunity that may be provided by your
state, you should contact your state now to find out if
and when such opportunities will occur.
KIMBERLY A. HUMMEL
717.231.4807
khummel@kl.com
R. TIMOTHY WESTON
717.231.4504
rweston@kl.com
FOR MORE INFORMATION about this Alert, Kirkpatrick & Lockhart’s environmental
practice or criminal enforcement of environmental laws, please contact the authors or one of
the K&L office contacts below. You may also visit our webpage at www.kl.com/
PracticeAreas/Environmental.
Roger C. Zehntner
Stephen A. Kennedy
R. Timothy Weston
Kimberly A. Hummel
Paul W. Sweeney, Jr.
Daniel A. Casey
Anthony P. La Rocco
Warren H. Colodner
Richard W. Hosking
Edward P. Sangster
Barry M. Hartman
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