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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. Among topics proposed for deletion from the draft was the issue of compliance schedules, which has been a priority issue for AMSA. AMSA brought the compliance schedule flexibility issue to the attention of EPA due to its importance in allowing longer time frames for total maximum daily loads (TMDLs) implementation. EPA has set out a schedule of 8 to 13 years to complete the TMDLs process, and another 10 to 12 years to implement the plans. AMSA believes that the Water Quality Standards regulation must be modified to include the flexibility to allow those kinds of compliance schedules, and that failure to do so may take away the option for adopting realistic time frames for achieving water quality standards. AMSA is planning to discuss this issue further with EPA in future meetings. Publication of the ANPRM is planned for December 1997. CONTACTS: Rob Wood, EPA 202/260-9536 or Mark Hoeke, AMSA 202/ 833-9106.

EPA to Develop Broad Nutrient Reduction Strategy Including Water Quality Criteria For Nutrients

Background: EPA is currently developing a strategy to curb excessive levels of nutrients. The strategy is an umbrella for several current Agency efforts, and a springboard for potential new activities to control water quality problems associated with high nutrient levels. Among the key components of strategy include: 1) strengthening the water office's nonpoint source control program (see Comprehensive Watershed Management Issues for a related update); 2) addressing concentrated animal feeding operations with increased regulation and/or enforcement; and 3) development of water quality criteria for nutrients.

Status: Bob Perciasepe, Assistant Administrator for Water, indicated at a recent EPA/States meeting 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. EPA hopes to complete the national nutrient strategy by the end of the year, and hopes to complete nutrient water quality criteria within the next five years.

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 2606419

EPA Methods For Determination of Trace Metals 40 CFR Part 136 - Anticipated Proposed Rule

Background: EPA is planning to propose amendments to the "Guidelines Establishing Test Procedures for the Analysis of Pollutants" under 40 CFR Part 136 to approve new EPA methods for the determination of trace metals at EPA's water quality criteria levels. Current methods were designed to measure pollutant levels at technology-based concentrations. Because these levels can be up to 280 times greater than water-quality based criteria for metals, approval of new EPA test procedures is necessary.

Status: EPA has delayed issuance of a notice of proposed rulemaking until late 1997. CONTACT: William Telliard, EPA 202/260-7134.

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© 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 October 1997. AMSA's Water Quality Committee is currently assessing the impact of the agreement on NPDES permits and the water quality standards program. 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." The draft document is currently under review by an external scientific peer review group and will be available for general public comment via Federal Register notice. EPA hopes to address peer review comments sometime in October 1997. 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. EPA is seeking comment on these five areas and their proposals to address each issue. Comments from numerous member agencies were compiled and transmitted to EPA prior to the April 30 deadline.

Status: AMSA members expressed concern with several areas of the draft strategy including: (1) its proposal to continue with existing enforcement policies, despite overwhelming support of the concept of using test results to trigger real solutions to environmental problems, (2) language which merely holds out, in very general terms, the prospect of future program adjustments--adjustments which may eventually be rejected or ignored in practice, and (3) inaccurate reflection of the conclusions reached at the September Stakeholder Meeting. During the National Environmental Policy Forum, AMSA met with EPA officials to discuss AMSA's concerns with the draft strategy. EPA agreed to collaborate on several key items on WET testing including: formation of a small working group of various stakeholders for developing a stepwise or tiered approach to WET permitting; involvement of AMSA in the peer review of EPA's work on WET data interpretation and statistics; opening of EPA WET training to a wider audience including AMSA members; invitation to AMSA members to submit manuscripts for a SETAC session in the fall in San Francisco on WET testing; and, collaborate with AMSA on policy decisions relating to the determination of "reasonable potential" for WET limits and the issue of WET limits for CSOs and stormwater discharges. 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 between EPA and the Western Coalition of Arid States (WESTCAS), 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 MagnusonStevens Fishery Conservation and Management Act (MagnusonStevens Act). The purpose of the rule is to assist Fishery Management Councils in fulfilling the requirements set forth by the MagnusonStevens 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. AMSA concerns stem from the lack of recommendations to the Fishery Management Councils to conduct cost/benefit analyses and consult with appropriate local stakeholders during the evaluation of impacts from non-fishing activities. Also, AMSA believes that the proposed process for Federal action agency consultation unduly shifts responsibilities of NMFS to the Federal action agency and their respective regulated activities or entities. AMSA members also identified concerns regarding the level of data analyses used to identify EFH. The proposed rule allows the use of limited data sets to identify EFH, but sets forth no requirements or schedule for Councils to improve the information. CONTACT: 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.