Clean Water Advocacy - Newsroom - AMSA in the News
No. 221
Monday, November 19, 2001 Page AA-1
ISSN 1521-9402
Leading the News
Water Pollution
Some Flexibility Afforded to States In EPA Guidance on Nutrient Criteria
SAVANNAH, Ga.--States may be allowed some flexibility in meeting a 2004
deadline for adopting nutrient criteria into water quality standards if they can
demonstrate a plan for meeting specific milestones, the Environmental Protection
Agency said in final guidance on the criteria.
In addition, the guidance, in the form of a Nov. 14 letter from Geoffrey Grubbs,
director of science and technology in the EPA Office of Water, will allow states
to prioritize the waters for which they need to develop nutrient criteria and
use their own approach in the process.
The guidance is designed to help states develop plans for adopting nutrient
criteria, help define the role of the plans in the adoption of such criteria,
outline the available flexibility, and explain EPA's expectations on timeframes
on plan development and criteria adoption.
In general, the guidance was favorably received by affected entities because it
would provide the flexibility that states and dischargers have maintained is
necessary in setting the nutrient criteria.
On Jan. 9, the agency issued its recommended water quality criteria for
nutrients for rivers and lakes in 14 "eco-regions." Specific numeric limits were
recommended for phosphorus, nitrogen, chlorophyll a, and turbidity (2 DEN A-9,
1/3/01).
Municipal Officials Supportive
At a legal seminar sponsored by the Association of Metropolitan Sewerage
Agencies, municipal officials said Nov. 16 that the latest guidance is generally
good and tries to correct some of the problems with the Jan. 9 recommendations.
The recommendations provided states with several options for developing criteria
for nutrients:
When possible, states should develop criteria that reflect localized conditions
and protect specific designated uses;
States may adopt EPA's recommended criteria either as a numeric criteria or as a
translator for state narrative criteria; or
States may use other scientifically defensible methods and water quality data to
develop criteria protective of designated uses.
Determining Adverse Impacts
Dominic Di Toro, an engineer and principal at HydroQual Inc., in Mahwah, N.J.,
told the AMSA meeting that the problem with trying to regulate nutrients is the
lack of a linear correlation between nutrient concentrations in the water body
and their possible adverse impacts on the environment.
Excessive nutrients lead to eutrophication, which manifests itself as algal
blooms. These blooms result in low dissolved oxygen levels, fish kills, murky
water, and depletion of aquatic flora and fauna, EPA said.
Di Toro, whose company serves as a consultant to dischargers, said no one argues
that it is a good idea to reduce as much as possible toxic chemicals such as
dioxin. However, nutrients have beneficial uses, and reducing them too much can
be harmful to aquatic life that rely on them for survival, he said. It also is
difficult to develop endpoints for nutrient loadings on a broad scale that can
protect multiple uses, he said.
Moreover, while the agency attempts to recognize that nutrients react
differently in different types of waters and regions of the country by setting
up the eco-region construct, nutrient criteria development still needs to be
done on a site-specific basis, which is a costly proposition, Di Toro and
municipal officials said.
States have until the end of 2004 to adopt the criteria. According to the Jan. 9
notice, if they do not meet this deadline, EPA will step in and do it for them.
Plans 'Strongly Encouraged.'
EPA said that while states are not required to develop nutrient criteria plans
to facilitate progress toward the adoption of criteria, "EPA strongly encourages
them."
The agency said the plans would be "refined iteratively" as they are discussed
and shaped in consultation with EPA. The final plan will reflect a mutually
agreed upon approach and schedule, EPA said.
Norm LeBlanc, chief of technical services for the Sanitation District in Hampton
Roads, Va., and a frequent critic of nutrient criteria, told BNA the idea of a
plan for nutrient criteria development is good because it will force states "to
think about what they need to do and how to go about doing it."
Many states and some industry groups objected to the 2004 deadline, saying that
timeframes for adopting criteria vary from state to state and may hinge on other
issues such as the development of total maximum daily loads.
"EPA intends to work collaboratively with the states and authorized tribes to
develop mutually agreed upon schedules for adopting nutrient criteria that
reflect the approach chosen and the state/tribal situation," the Nov. 14
guidance said.
The guidance will provide flexibility in meeting those deadlines.
The agency said it intended to evaluate the progress of states to determine how
it compares to the agreed-upon schedule in the nutrient criteria plan.
Options for Proceeding
The guidance laid out several options for how the agency intends to proceed:
If the state has developed a plan and met its milestones by the end of 2004, the
agency would conclude that substantial progress is being made according to the
plan toward adopting nutrient criteria and that federal action would not be
needed to meet the requirements of the Clean Water Act;
If the state has not met its milestones or schedule laid out in the plan by the
end of 2004, the agency would then evaluate whether federal promulgation is
appropriate, and EPA could then decide that new or revised nutrient standards
are needed to meet Clean Water Act requirements;
If the state has not developed a plan, the agency would expect it to have begun
the administrative process to adopt nutrient criteria into its water quality
standards by the end of 2004.
The guidance also provides flexibility by not prescribing the approach states
should use in developing their criteria and allowing them to prioritize. Some
states have already begun working on their nutrient criteria.
"For example, states and authorized tribes may choose to prioritize their
waters, based on the need to address already impaired waters and to prevent the
impairment waters that may be threatened when developing their nutrient
criteria," the EPA guidance said.
Di Toro told the AMSA conference that municipal wastewater treatment officials
and other dischargers should get together with state regulators early in the
process to assist in the nutrient criteria development effort.
Industry Opposition
EPA's effort to regulate nutrients has generated a significant amount of
controversy in the regulated community.
Industry officials have said they fear that the adoption of nutrient criteria
will mean more water bodies do not meet standards, which would prompt the need
for a new total maximum daily load (TMDL), a plan allocating pollutant levels
among dischargers.
Moreover, industry is concerned that under EPA's approach, states would identify
reference waters--those considered to be "the best"--and they would be the
measure against which other waters would be judged. The agency wants the
reference conditions to be based on the top quartile of waters.
Di Toro called this approach an "irrational response to a hard problem." He said
a more effective way to address the nutrient problem would be through a tiered
approach that calls for better analysis of individual water bodies.
"This is about the weakest thing I have ever seen," Di Toro said of EPA's
nutrient criteria recommendations. He called for "realistic targets that have to
do with the [designated] use."
Watersheds Preferred to Eco-Regions
Environmental advocates have said EPA should drop the eco-region approach and
address nutrients on a watershed basis.
The EPA guidance said that if states focus on a large eco-region, they should
use a comprehensive approach where "total nitrogen, total phosphorus,
chlorophyll a, and a measure of water clarity are appropriate variables."
However, the agency said it recognized that flexibility was need for approaches
that addressed smaller regions or were site-specific.
LeBlanc said that in the guidance "EPA is saying, 'Find the appropriate response
variable, and figure out how to translate it into a loading.' "
The guidance, he said, is "adding some order and sense and science to the
system."
Text of the EPA nutrient criteria guidance appears in Section F of this report.
By Susan Bruninga