AMSA Regulatory Alert (RA 01-21)

To: Members & Affiliates
From: National Office
Date: December 5, 2001
Subject: EPA 2002 INTEGRATED WATER QUALITY MONITORING AND ASSESSMENT REPORT GUIDANCE
Reference: RA 01-21

Attachment:  Integrated Report Guidance (PDF ~600 KB)

On November 19, the U.S. Environmental Protection Agency (EPA) released its 2002 Integrated Water Quality Monitoring & Assessment Report Guidance ("integrated report guidance") which for the first time integrates state development and submission of the Clean Water Act’s (CWA) 305(b) water quality reports and 303(d) lists of impaired waters. The release of the integrated report guidance was one of several reasons EPA listed for extending the deadline for the next state 303(d) lists until October 1, 2002. This Regulatory Alert provides an overview of the significant features of the integrated report guidance and outlines AMSA’s future activities. The integrated report guidance is available on AMSA’s web site at http://www.amsa-cleanwater.org/private/regalerts/ra01-21a.pdf.

Starting with this next list, states will be encouraged to submit one integrated report, combining the previously separate 305(b) report and 303(d) list. The integrated report must include water quality standard (WQS) attainment information for all state waters, and, where insufficient information exists to make a determination, a monitoring schedule to facilitate better tracking for that water body. States will now be required to establish assessment and listing methodologies explaining to EPA and the public how the attainment status will be determined.


Integrated Report Guidance Represents a Step In the Right Direction
The integrated guidance is a final document, and EPA is accepting no comments at this time. EPA’s justification for issuing a final guidance was the need to disseminate consistent guidance to the states as soon as possible enabling them to reorient their listing process before the October 1, 2002 303(d) deadline. The Agency will consider revising the guidance after the state lists are submitted.

AMSA has for many years raised concerns about the problems of maintaining separate 305(b) reporting and 303(d) listing requirements. Most significant among those concerns is the potential impact of the 305(b) report, a non-regulatory tracking tool acknowledged often to be incomplete and cursory, on whether or not a particular waterbody is listed as impaired and requires the development of a total maximum daily load (TMDL). AMSA maintains that while the 305(b) report is useful for tracking water quality, the lack of state data quality standards and the inability to track all waters severely compromises the usefulness of the report and prevents it from being used as a tool to drive the TMDL program. AMSA also believes that the 303(d) list, which carries with it significant permit implications for POTWs, should include only those waters which are currently impaired, and should not include those waters which are threatened or impaired by a non-pollutant source (e.g., habitat modification). All waters not requiring a TMDL should be tracked by the 305(b) report.

The integrated report guidance takes several significant steps towards addressing AMSA concerns. The clear requirement for states to now track all waters, or "assessment units", and to use one reporting mechanism should alleviate some concerns about the unrepresentative nature of past reports. The requirement to submit assessment and listing methodologies explaining how attainment status determinations are to be made should make the process more transparent than it has been in the past. In addition, the related requirement for states to develop and submit monitoring schedules detailing which waters will be monitored each year should help explain how state resources are being allocated and where data gaps may exist for individual waters.

However, AMSA believes EPA may have missed an opportunity in this document by not providing additional guidance in some areas of the 303(d) listing process. For example, the guidance does not provide states with substantive guidance concerning how they should use biological information for determining impairments, how data can be screened according to its quality and quantity, or how impairment decisions will be made for waters impacted by both pollutant and non-pollutant (e.g., habitat degradation) sources. These processes are left entirely to the state’s discretion. In addition, the document is silent on when and where in the process states should review their underlying water quality standards (WQS), despite a recommendation in the AMSA supported National Research Council’s (NRC) TMDL study that states review their WQS at the earliest possible stage in the TMDL process. For further explanation of AMSA’s positions regarding the listing process, see AMSA’s TMDL White Paper at http://www.amsa-cleanwater.org/advocacy/7-18-01tmdlwhitepaper.pdf.


Key Features of the Integrated Report Guidance
A. Delineation of State Assessment Units
As part of the integrated report guidance, states are now expected to report on the WQS attainment status of all waters within the state. Each water will be tracked using an individual "assessment unit" (AU) identification to provide a consistent mechanism for delineating the boundaries of each waterbody. EPA strongly encourages states to adopt the so-called National Hydrography Dataset (NHD) "reach addressing protocol" for assigning AUs because of its known ability to precisely locate water features. The NHD protocol has been used for mapping and spatial analysis, and is recommended by EPA to help target resources and activities such as scheduling monitoring, issuing permits, and targeting restoration measures. The NHD protocol is also expected to clearly define the geographic boundaries affected by a TMDL.

B. State Assessment and Listing Methodologies
The integrated report guidance indicates that states will now be required to provide a description of the assessment and listing methodology used to develop their 303(d) lists and 305(b) reports. This methodology should include a description of the processes and procedures used to assess how "all existing and readily available" data and information was assembled and used to determine attainment status for each applicable WQS. EPA is hoping that the development of these methodologies will address many of the longstanding concerns about the lack of transparency in the 303(d) listing process. From this point forward, EPA’s review and approval of the 303(d) list will be based on a determination that the state’s assessment and listing methodology was used to prepare the list, and that the methodology was scientifically sound and consistent with the state’s WQS.

EPA had previously included the requirement to develop a state assessment and listing methodology in its July 2000 TMDL rule, which is now being revised. AMSA supported this requirement (see TMDL White Paper, p. 2) as a way to make the listing process more transparent, but cautioned the Agency about the potential shortcomings of the "all existing and readily available" data standard (see TMDL White Paper, p. 4). In particular, AMSA advised that the "all existing and readily available" standard does not distinguish between good data, bad data, new data, or old data and compromises the benefits of the state listing methodology because EPA has not created a more rigorous data quality standard. AMSA will continue to urge EPA to develop minimum data quality standards for 303(d) listings. This view was echoed in the National Research Council’s (NRC’s) TMDL report, which suggested numerous modifications to the TMDL process to invigorate the states’ use of adequate data (e.g., establishment of a "preliminary list", use of "adaptive implementation", etc.).

Among the sources of data that EPA believes should qualify as "existing and readily available" is the 305(b) report. AMSA has raised concerns about the potential use of 305(b) report information for 303(d) listing decisions (see TMDL White Paper, p. 7). Although the requirement for states to develop assessment and listing methodologies may improve the quality of the 305(b) data over time, in its current state, most 305(b) reports lack the precision and comprehensiveness needed for making impairment determinations.

The states are also encouraged to detail in their assessment and listing methodology how biological monitoring will be used to determine if a biological impairment of an AU exists, the cause of the impairment, and the appropriate listing category for the AU. The integrated report guidance clarifies that only those biological impairments caused by a specific pollutant should trigger the requirement to develop a TMDL. A potential concern may be that a state can list an AU as biologically impaired despite its uncertainty about whether a pollutant caused the impairment. AMSA has previously raised concerns about the need to link biological impairments to a pollutant source, and the challenge of distinguishing between biological impacts from structural and hydrologic problems (i.e., "pollution") and those impacts from point and nonpoint source pollutants (see TMDL White Paper, p. 8).

C. Integrated Lists of Waters
Based on the state’s assessment and listing methodology, the integrated report guidance requires each state to report to EPA on the water quality attainment status of all AUs in their jurisdiction. This new integrated list is the hallmark of the guidance because it provides the mechanism for consolidating the previously separate 305(b) report and 303(d) list. According to the guidance, each AU is to be placed in one of the following five assessment categories:

  1. Attaining the WQS and no use is threatened.
  2. Attaining some of the designated uses; no use is threatened; and sufficient or no data and information is available to determine if the remaining uses are attained or threatened.
  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 does not require the development of a TMDL.
    1. TMDL has been completed.
    2. Other pollution control requirements are reasonably expected to result in the attainment of the WQS in the near future.
    3. Impairment is not caused by a pollutant.
  5. The WQS is not attained. The AU is impaired or threatened for one or more designated uses by a pollutant(s), and requires a TMDL.

The integrated report guidance contains detailed breakdowns and explanations of each of these categories. Categories 1 – 4 correspond to the original 305(b) reporting requirements, while category 5 represents the 303(d) part of the integrated report. Of greatest concern to POTWs will be those AUs placed in category 5, since being listed in this category will automatically trigger the requirement for the state to develop a TMDL.

Perhaps the most significant benefit of the new categories to POTWs is the clear separation of categories 2 and 3 from the impairment category (i.e., category 5). These categories provide a clear distinction between impaired waters and those waters with insufficient data to make an attainment determination. However, these categories do not adequately address the significant number of waters that are impaired by both pollutant and non-pollutant sources. Where the source of impairment on a waterbody is primarily non-pollutant (e.g., habitat loss), AMSA believes that a TMDL for that water, focused exclusively on pollutant sources, will ultimately fail in meeting WQS.

D. Integrated Report Data Elements
One of the underlying objectives of the integrated report guidance is to establish greater uniformity in the actual report. EPA is encouraging states to submit their integrated reports using the Agency’s Assessment Database (ADB) software and to submit the reports electronically. The guidance document contains a thorough discussion of the data elements that must be addressed in each report (see Appendix B). For each AU in the state, the report must include data on the following elements:

AMSA believes that the states’ use of a consistent database and data element will significantly improve the listing and assessment process.


Next Steps
There will be numerous opportunities for AMSA to raise its major concerns with the listing process in the coming year. AMSA’s Board of Directors and Committee leadership has asked the National Office to work with members to develop a coordinated strategy for raising POTWs concerns with the listing and TMDL processes. Next week, AMSA will be addressing EPA and over 300 attendees at the December 11 TMDL Listening Session in Washington, DC. In addition, AMSA’s Water Quality and Legal Affairs Committees will be working together to develop detailed comments on EPA’s proposed TMDL rule this spring and to provide feedback to the Agency on its Consolidated Assessment & Listing Methodology (CALM) guidance.

Please contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org if you have specific questions or concerns about this document.

 

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