Water Quality Issues
EPA’s Water Quality Standards Regulation Revision Process - Advanced Notice of Proposed Rulemaking
Background: EPA is seeking through an advance notice of proposed rulemaking (ANPRM), views and recommendations on possible revisions to the Water Quality Standards regulation. The purpose of the ANPRM is to serve as a regulatory planning tool to identify areas within the Water Quality Standards Regulation in need of revision, explain perceived problems, and describe a range of options for revisions/additions to the regulation. EPA released a draft ANPRM in mid-March 1996 to all interested parties for comment over a two month period ending in early May 1996. After months of stakeholder debate in early 1997, AMSA received a letter dated June 5, 1997 from Assistant Administrator, Bob Perciasepe, which expressed EPA’s decision to "proceed with development of a narrower ANPRM" than what was originally proposed in March 1996.
Status: EPA outlined the scope of a narrowed advanced notice of proposed rulemaking (ANPRM) for the Water Quality Standards regulation at a recent AMSA leadership meeting on September 29-30, 1997. Program and regulatory changes to be raised in the narrowed ANPRM include: discussions of designated uses; biological criteria; physical and habitat criteria; toxicity criteria; sediment criteria; microbiological criteria; antidegradation; and general policies, such as mixing zones, and independent application. Publication of the ANPRM is planned for December 1997. CONTACTS: Rob Wood, EPA 202/260-9536 or Mark Hoeke, AMSA 202/ 833-9106.
Vice President Gore’s Clean Water Initiative Directs EPA to Develop Nutrient Criteria By 2000
Background: On October 18, the 25th Anniversary of the Clean Water Act, Vice President Al Gore issued a memo-random calling for a "comprehensive approach to water quality at all levels of government," and directed U.S. Department of Agriculture (USDA) Secretary Dan Glickman and U.S. Environmental Protection Agency (EPA) Administrator Carol Browner, in consultation with all other affected agencies, to develop a "comprehensive Action Plan." The Plan is to provide "enhanced protection from public health threats posed by water pollution; more effective control of polluted runoff; and, promotion of water quality protection on a watershed basis" as its three major goals. The Vice President’s memorandum specifically directs the Agency to: "identify the major sources of nitrogen and phosphorus in our waters, and identify actions to address these sources. In particular, EPA will accelerate water quality criteria for waters in every geographic region in the country. Specifically, EPA will establish a schedule so that EPA and the States are implementing a criteria system for nitrogen and phosphorus runoff for lakes, rivers, and estuaries by the year 2000."
Status: This current schedule expedites EPA’s previous plans to complete nutrient water quality criteria in the next five years. At a recent EPA/States meeting on nonpoint source pollution, Bob Perciasepe, Assistant Administrator for Water, indicated that nutrient water quality criteria would not be developed on a national basis. Because nutrient impacts can be affected by site specific factors such as temperature, salinity, and a range of other factors, Perciasepe indicated that such criteria may be developed on a geographic or regional basis. A workgroup of Federal agency representatives has been formed to draft Action Plan recommendations on nitrogen and phosphorus criteria development. Recommendations will be drafted by December 1, and will be incorporated into the overall Action Plan by mid-December. AMSA plans to submit comments regarding the overall Action Plan in late November. CONTACT: Mark Hoeke, AMSA 202/833-9106 or Geoff Grubbs, EPA 202/260-7040.
AMSA Represented on National Water-Quality Monitoring Council
Background: Between 1992 and 1997, the Intergovernmental Task Force on Monitoring Water Quality (ITFM) was a highly successful cooperative effort involving federal and state agencies and the private sector which completed a series of goals to help revitalize monitoring, including its final report — The Strategy for Improving Water-Quality Monitoring in the United States. The report recommends a strategy for nationwide water quality monitoring and technical monitoring improvements to support sound water quality decision making at all levels of government and in the private sector. The National Water-Quality Council was formed on recommendation by the ITFM. In coordination with groups all over the country, the newly formed National Council will bring about the full potential and benefits presented in ITFM’s final report. The National Council, which held its first meeting on October 29-30, is co-chaired by the U.S. Environmental Protection Agency (EPA) and the U.S. Geological Survey (USGS). It reports to the Federal Advisory Committee on Water Information, a FACA committee, on which, Sam Hadeed, from AMSA's National Office, will represent the interests of the Association. Those serving on the National Council represent federal, state, municipal, and tribal government, environmental, manufacturing, and agricultural interest groups, as well as volunteer monitoring groups. The National Council will review activities for monitoring the quality of fresh surface water, estuary and near-coastal water, ground water, and precipitation at local, regional, and national levels. The National Council will also provide guidance for the collection, management, and use of water-quality information. This information is needed to assess status and trends, to identify and prioritize existing and emerging problems, to develop and implement management and regulatory programs and to evaluate compliance with environmental requirements and the effectiveness of programs and projects.
Status: Representing AMSA on the newly created National Water-Quality Monitoring Council for a four-year term is Norman LeBlanc, chief of technical services of the Hampton Roads Sanitation District and chair of AMSA’s Water Quality Committee. CONTACT: Elizabeth Fellows, EPA 202/260-7062, or Mark Hoeke, AMSA 202/833-9106.
Streamlining 301(h) Waiver Renewal Requirements - Anticipated Proposed Rule
Background: EPA is proposing to amend the Clean Water Act section 301(h) regulations. This proposal is designed to streamline the renewal process for POTWs with 301(h) modified permits. Section 301(h) provides POTWs discharging to marine waters an opportunity to obtain a modification of secondary treatment requirements if they demonstrate to EPA that they comply with a number of criteria aimed at protecting the marine environment.
Status: Proposal is planned for April 1998. CONTACT: Deborah Lebow 260-6419
Endangered Species Act Consultation - Draft Memorandum of Agreement Among EPA, FWS, NMFS
Background: On August 4, 1997 EPA distributed a final review draft of an agreement between EPA, the Fish and Wildlife Service (FWS), and the National Marine Fisheries Service (NMFS), which defines the role of each agency in ensuring Clean Water Act programs are consistent with Endangered Species Act (ESA) requirements. Section 7 of the ESA requires Federal agencies to consult with FWS or NMFS when taking an action which may adversely impact endangered or threatened species. EPA has described the current consultation process as "random" and hopes to make the process more consistent and clearer for each of the agencies involved. The process described in the Agreement sets up a timely schedule for elevating unresolved consultation issues between the agencies when an action which may affect listed or endangered species is being taken. In addition to the Agreement, a draft biological opinion from FWS and NMFS was also circulated for comment. The opinion is intended to address Section 7 consultation requirements for EPA approval of state NPDES programs and state water quality standards. The opinion concludes that "EPA’s approval of the assumption of permitting authority by the States...under Sections 402, 404, and 405 of the CWA and EPA’s approval of water quality standards under Section 303 (c) of the CWA and permitted activities conducted in accordance with properly implemented Federal and State regulatory programs are not likely to jeopardize the continued existence of listed or proposed species, and are not likely to result in the destruction or adverse modification of designated or proposed critical habitats." However, the draft opinion also stipulates that EPA will propose a national rulemaking which prohibits mixing zones and variances that would likely affect listed or proposed species. In addition, states would be required to adopt site-specific water quality criteria where determined to be necessary to avoid a likely jeopardy situation.
Status: EPA hopes to finalize the agreement by the end of January 1998. AMSA met with EPA officials on November 14 to discuss the impact of the agreement on NPDES permitting activities and water quality standards setting. EPA believes that the agreement will ease the current difficulties in state delegation of programs, mainly Section 404 programs, and believes it will not impose additional requirements for states currently implementing permitting programs. EPA indicated that it is willing to accept informal comment on the memorandum. CONTACT: Mark Hoeke, AMSA 202/833-9106 or James Pendergast, EPA 202/260-9545.
Freshwater Ammonia Criteria Revisions
Background: Since the U.S. EPA published its water quality criteria document for ammonia in freshwater, (Ambient Water Quality Criteria for Ammonia - 1984, U.S. EPA 1985a), it has issued additional information concerning aquatic life criteria for ammonia (Heber and Ballentine, 1992; U.S. EPA 1989, 1996) and there have been various studies of ammonia toxicity that could affect the freshwater criterion. The purpose of EPA’s current efforts is to update U.S. EPA (1985a) and replace Heber and Ballentine (1992) and U.S. EPA (1996) by addressing various issues and assessing new data to the extent possible in a short-term effort. This short-term effort is addressing issues and data related to the Criterion Maximum Concentration (CMC), Criterion Continuous Concentration (CCC), and CCC averaging period, or the frequency of allowed exceedences. It is intended that a separate long-term effort will more completely evaluate relevant laboratory and field data, identify and conduct needed research, and replace U.S. EPA (1985a) and this latest addendum in five to ten years. A recently issued draft addendum updates the equations used in the ammonia criteria document (U.S. EPA 1985a) to address the temperature- and ph-dependence of ammonia toxicity in freshwater to take into account newer data and better approaches. A new CMC is derived based on these updated equations. Available chronic data is evaluated and used to derive a new CCC.
Status: EPA’s Office of Science and Technology is in the process of updating its freshwater ammonia criteria to account for newer data, better approaches, and to address temperature and ph-dependence of ammonia toxicity. The updated procedures are reflected in a draft addendum to EPA’s "Ambient Water Quality Criteria for Ammonia - 1984." A technical peer review has been completed on the draft document. EPA plans to solicit public comment via Federal Register notice in January 1998. AMSA’s Water Quality Committee will review the draft document when published. For a copy of the document, or for more information, CONTACT: Mark Hoeke, AMSA at 202/833-9106, or Charles Delos, EPA 202/260-7039.
Whole Effluent Toxicity
Background: On February 19, 1997 EPA released their draft whole effluent toxicity (WET) implementation strategy (distributed via Regulatory Alert RA 97-6). The draft strategy highlights five key areas of concern; four areas based on the recommendations from the SETAC Workshop and one area focussing on EPA research. The five areas include: 1) National WET Outreach and Training Program; 2) Continue to encourage the development of water quality criteria & standards based on good science; 3) Write better NPDES permits for WET; 4) Enforcement; and, 5) Fund research needs. Comments from numerous member agencies were compiled and transmitted to EPA prior to the April 30, 1997 deadline. In February 1996, EPA was sued by several groups, including the Western Coalition of Arid States (WESTCAS), and the Edison Electric Institute on the WET test procedures, which were promulgated on October 16, 1995. AMSA’s Board of Directors did not pursue litigation on WET based on the opportunity to resolve technical and policy issues with EPA.
Status: EPA is continuing negotiations with litigants regarding WET issues. On July 21, 1997, a policy memorandum from EPA Office of Science and Technology Director, Tudor Davies, and EPA Office of Wastewater Management Director, Michael Cook to Regional Water Management and Environmental Services Division Directors concerning additional clarifications for Whole Effluent Toxicity (WET) methods and implementation in permits. The memorandum specifies: 1) The Agency has not established nationally applicable criteria for WET, for either acute or chronic toxicity under CWA 304(a); 2) The Agency does not mandate which test methods NPDES permitting authorities must use, however, any method used must be approved; 3) Permitting authorities should consider biological assessment, and other relevant data when available, in determining whether the discharge will cause, or have reasonable potential to cause or contribute to a violation of a State water quality standard; 4) Permitting authorities may use different toxicity limitations for seasonal flow differences, however, emphasizes that increased monitoring frequencies are needed when permits contain seasonal limits; 5) Emphasizes that permit decisions should utilize the most representative data in "reasonable potential" analyses, including data which shows lower levels of toxicity attributable to a discernable control action (resulting from a TIE/TRE) and which will be maintained.
AMSA forwarded a letter to EPA on July 31, 1997, summarizing the highlights of a June 23-24 stakeholder meeting on WET issues, and urging EPA to eliminate enforceable WET tests as permit limits and to adopt an alternative approach discussed by municipal representatives. In the letter, addressed to Mike Cook, Director of EPA’s Office of Wastewater Management, AMSA summarizes the three key points which were discussed at the meeting regarding §122.44(d)(ii) determinations and also summarizes six types of data and information which were discussed for inclusion in §122.44(d)(ii) determinations. The full text of the letter was forwarded to AMSA’s membership via Regulatory Alert, RA 97-18. Pending resolution of ongoing litigation, EPA hopes to finalize the WET Implementation Strategy sometime in early 1998. CONTACT: Sam Hadeed, AMSA 202/833-4655.
Magnuson Act Provisions; Essential Fish Habitat - Proposed Rule
Background: The National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA) and the Department of Commerce issued in the April 23, 1997, Federal Register, proposed regulations containing guidelines for the description and identification of essential fish habitat (EFH) in fishery management plans (FMPs), adverse impacts on EFH, and actions to conserve and enhance EFH. The regulations would also provide a process for NMFS to coordinate and consult with Federal and state agencies on activities that may adversely affect EFH. The guidelines are required by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The purpose of the rule is to assist Fishery Management Councils in fulfilling the requirements set forth by the Act to amend their FMPs to describe and identify EFH, minimize adverse effects on EFH, and identify other actions to conserve and enhance EFH. The coordination and consultation provisions would specify procedures for adequate consultation with NMFS on activities that may adversely affect EFH.
Status: AMSA’s Water Quality Committee prepared and submitted comments on the proposal on June 6. AMSA members had several significant concerns regarding the scope of the regulations, particularly its impact on non-fishing activities and Federal action agencies. NMFS has completed comment response on the proposed regulations and has completed a final regulation package. NMFS is expecting imminent approval of the final regulation package by its parent Agency, the National Oceanic Atmospheric Administration. Once approved the final regulations will be published in the Federal Register. CONTACT: Lee Crockett, NMFS 301/713-2325 or Mark Hoeke, AMSA 202/833-9106.
EPA Revising Approach to Method Quantitation Levels
Background: In March 1994, EPA released a draft policy, titled "National Guidance for the Permitting, Monitoring, and Enforcement of Water Quality-based Effluent Limitations Set Below Analytical Detection/Quantification Levels." The guidance proposed a methodology to assign a compliance level at 3.18 times the method detection limit (MDL) for a given pollutant, called the minimum level (ML). The methodology has been criticized by industry groups due to concerns that the methodology yields inconsistent results and inequality in compliance decisions. AMSA submitted its own concerns in a letter dated August 12, 1996 to EPA which discussed Interlaboratory vs. Intralaboratory MDLs/MLs; ML Definition; and, State Flexibility.
Status: EPA has formally dropped plans to use a multiple of the MDL as the method to derive the ML for assessing compliance at analytical levels below detection. EPA plans to formulate a new approach based on statistical procedures later this year. CONTACT: Bill Telliard, EPA at 202/260-7134.