Member Pipeline - Regulatory - Alert (RA 01-10)
| To: | Members & Affiliates |
| From: | National Office |
| Date: | June 26, 2001 |
| Subject: | NATIONAL RESEARCH COUNCIL'S TMDL STUDY |
| Reference: | RA 01-10 |
On June 15, the National Research Council (NRC) submitted its scientific critique of the Total Maximum Daily Load (TMDL) program to Congress. The final report, entitled "Assessing the Total Maximum Daily Load Approach to Water Quality Management", was prepared by NRC's Committee to Assess the Scientific Basis of the TMDL Approach to Water Pollution Reduction (the "Committee"). The report presents detailed findings on weaknesses in the current TMDL approach and makes numerous recommendations on how a more workable program based on science should be structured. The NRC concludes that a more science-based approach is needed to improve the TMDL program, and indicates that the state of the science is sufficient to revise current lists of impaired waters and assist states in developing more workable solutions for cleaning them up. The NRC's report is accessible through their website at http://www.nap.edu/books/0309075793/html/.
The purpose of this Regulatory Alert is to provide you with a short-list of key points included in the report and a preliminary sense of AMSA's perspective on these points. We encourage you to review the report as it is likely to become a focal point of discussions on the TMDL program in the next year. In its deliberations, the Committee appears to have seriously evaluated many of AMSA's greatest concerns about the TMDL program, particularly with regard to listing procedures. A more complete analysis of the report by AMSA's Water Quality Committee will occur on July 18th at the Summer Conference in Milwaukee, WI.
Background
The need for the report arose out of Congressional concerns relating to the scientific basis of the TMDL program, and specifically the controversy surrounding the U.S. Environmental Protection Agency's (EPA) July 2000 final TMDL regulations. Congress was particularly concerned with the paucity of data and information available to the states to comply with Clean Water Act (CWA) Section 303(d) and meet water quality standards (WQS). In a rider to the FY 2001 EPA budget, Congress directed EPA to retain the NRC to assess the scientific basis of the TMDL regulations, including:
- the information required to identify sources of pollutant loadings and their respective contributions to water quality impairment;
- the information required to allocate reductions in pollutant loadings among sources;
- whether such information is available for use by the states and whether such information, if available, is reliable; and
- if such information is not available or is not reliable, what methodologies should be used to obtain such information.
In developing the report, the NRC Committee met three times during a three-month period and heard testimony from over 40 outside organizations. The Committee was chaired by Kenneth H. Reckhow, professor at Duke University's School of the Environment. Norm LeBlanc, Chair of AMSA's Water Quality Committee and Chief of Technical Services, Hampton Roads Sanitation District, testified at the January 24 meeting to offer the Association's perspective on major attributes of the program. On April 6, AMSA also submitted to the Committee further comments and a case study of the San Francisco Bay TMDL to illustrate the practical implications of the TMDL program for publicly-owned treatment works (POTW) permittees. The Committee held two additional meetings in March and April that were closed to the public.
Summary of Major Findings and Recommendations
The Committee acknowledges that TMDL requirements have become "the most pressing and significant regulatory water quality challenge for the states since the passage of the Clean Water Act." Although a March 2000 General Accounting Office (GAO) study highlighted the pervasive lack of data at the state level available to set water quality standards, determine what waters are impaired, and develop TMDLs, the Committee unanimously agreed that despite these problems "data and science have progressed sufficiently over the past 35 years to support the nation's return to ambient based water quality management." The report recommends ways to move forward "given reasonable expectations for data availability and the inevitable limits on our conceptual understanding of complex systems." As such, the report's recommendations are targeted 1) at those issues where science can and should make a significant contribution, and 2) at barriers (regulatory and otherwise) to the use of science in the TMDL program.
The following discussion summarizes the report's key findings and recommendations, their relevance to AMSA, and outlines EPA and Congressional reaction to the report.
TMDL Program Goals
The report makes three broad conclusions about the TMDL program:
- The TMDL program should focus first and foremost on improving the condition of waterbodies as measured by attainment of designated uses. AMSA has consistently emphasized to EPA, Congress, and the Committee that the fundamental objective of the TMDL process must be the restoration of correctly identified designated uses. The focus of the TMDL program must be shifted towards a greater certainty in listing waterbodies with actual impairments, and a more refined ability to tie pollutant reductions to achieving designated uses.
- The program should encompass all stressors, both pollutants and pollution, that determine the condition of the waterbody. AMSA has consistently argued that "pollution" stressors (e.g., habitat alteration and channel modifications) fall outside of the purview of the TMDL program and the Clean Water Act. Although pollution impacts, as opposed to impacts from water contaminants, may be one of the primary causes of impairments on a waterbody, AMSA continues to question whether a TMDL is the appropriate mechanism to restore a water impaired by "pollution" when the pollution sources cannot be controlled.
- Scientific uncertainty is a reality within all water quality programs, including the TMDL program, that cannot be entirely eliminated. AMSA agrees that uncertainty will inevitably impact the states ability to make precise water quality management decisions. On the other hand, AMSA has noted with concern that states are increasingly relying on imprecise models to judge impairments and to develop TMDLs. While the use of models is perhaps necessary, AMSA has advised the Agency that ambient monitoring data must become the primary basis for 303(d) determinations. The rationale for using actual ambient monitoring data for TMDLs is that even the best water quality models, fully calibrated and validated, will never be as precise of an indicator as actual in-stream sampling and observation.
TMDL Process Changes
- States should develop appropriate use designations for waterbodies in advance of assessment and refine these use designations prior to TMDL development. The report noted the state's use of overly broad standards for TMDL purposes. In order to ensure that designated uses are appropriate, the report specifically encourages states to consider use attainability analyses (UAAs) for all waterbodies before a TMDL is developed. AMSA has repeatedly stressed, in comments to EPA and testimony before the NRC and Congress, the need for states and EPA to focus on the underlying water quality standards (WQS) that drive the TMDL program. AMSA favors an approach that requires states to examine the sufficiency of its underlying WQS prior to conducting TMDLs.
- EPA should approve the use of both a preliminary list and an action list instead of one 303(d) list. The report explicitly advocates a short-term listing procedure which would allow states to remove to a preliminary list those waters for which there is a lack of adequate WQS or data and analysis from the 303(d) list. The report thus envisions two lists: (1) a preliminary list, which would serve as a temporary placeholder for waterbodies with insufficient information to make a 303(d) determination, and (2) an action list for those waters with sufficient information to move forward with a TMDL. The report clarifies that no waterbody should remain on the preliminary list for more than one rotating basin cycle (i.e., five years). The Committee also took the overt step of recommending that Congress consider revising the CWA "if no legal mechanism exists" to use a preliminary 303(d) list. EPA has been quick to respond that no change is needed to the statute to establish a preliminary and action list. AMSA is supportive of differentiating state lists based on data and WQS inadequacies. In the past, however, AMSA has recommended removing these waters from the 303(d) listing process entirely, with the possibility of tracking them through the 305(b) process.
- TMDL plans should employ adaptive implementation. If the implementation of the TMDL plan is not achieving attainment of the designated use, scientific data and information should be used to revise the plan. An adaptive implementation scheme would ensure that the "TMDL program is not halted because of a lack of data and information, but rather progresses while better data are collected and analyzed with the intent of improving upon initial TMDL plans." The report explicitly encourages Congress and EPA to remove policy barriers that may inhibit adaptive management. AMSA has not previously commented on the concept of adaptive management. However, the Association has repeatedly advised EPA of the need for a flexible TMDL system that responds to new information on water quality with appropriate adjustments.
Water Quality Standards
- All chemical criteria and some biological criteria should be defined in terms of magnitude, frequency, and duration. The report emphasizes that these three dimensions of the criterion is crucial for successfully developing WQS and subsequently TMDLs. AMSA supports greater specificity in the definition of criterion to enable POTWs to better understand how states make 303(d) determinations.
- Water quality standards must be measurable by reasonably obtainable monitoring data. The report noted the common disconnect between a chosen criteria and the frequency with which water quality data are collected. AMSA concurs that the current level of state monitoring is insufficient to justify most listing decisions.
Assessment and Listing
- Ambient monitoring and assessment programs should form the basis for determining whether waters are placed on the preliminary list or action list. The report recommends that EPA develop a uniform, consistent approach to ambient monitoring and data collection across the states. The report endorses the use of a "rotating basin cycle" to enhance the state's ability to progressively increase the level of monitoring and data collection on a given waterbody. Further, the report suggests that the Agency set the TMDL calendar in concert with each state's rotating basin program, and that Congress should consider aiding states through matching grants to improve data collection and analysis. AMSA has been supportive of providing states with additional funding to improve the TMDL process. In the past, AMSA has also suggested that EPA require as a condition of funding that states adopt and implement data quality standards to ensure the adequacy of 303(d) determinations.
- Evidence of narrative standard violation should not be exclusively used for placement of a waterbody on the action list, but is useful for placement on the preliminary list. According to the report, EPA should issue guidance to assist states in translating narrative standards to numeric criteria for 303(d) listing and TMDL calculation purposes. AMSA has consistently pointed out that numeric translators of narrative standards are required for 303(d) listing determinations, and that the development of any translator must be adopted in accordance with the rulemaking process.
- EPA should end the practice of arbitrary selection of the TMDL margin of safety (MOS) and instead require uncertainty analysis as the basis for MOS determination. The report indicates that prediction uncertainty must be estimated in a rigorous manner, using guidance or software developed for this specific purpose. EPA should place a high priority on selecting and developing TMDL models with minimal forecast error. AMSA is supportive of reductions in uncertainty to ensure that changes in permit limits are in accordance with accurate wasteload allocations.
- EPA should promote the development of models that can more effectively link environmental stressors to biological responses. The report recommends a two-phased approach to model development, starting with the development of conceptual models to account for known system dynamics, followed by a strengthening of those models with mechanistic and empirical models. These models would promote the wider use of biocriteria. AMSA supports the development of properly validated mechanistic models which link stressors to responses in biological communities. These models would provide both a better understanding of what the public can expect in terms of improved biological communities from the expenditure of resources to address water quality problems. In addition, the models would provide a means to quantify the relative importance of water quality to other stressors in impaired waters.
EPA, Congressional, and Association Communities Comment on Report Findings Initially, both the EPA and Congressional staff have been generally supportive of the findings of the report. EPA appears to be supportive of the need for strengthening state water quality programs and state monitoring programs so that TMDLs are on more solid footing. The Agency has also highlighted the report's recommendation to take a fresh look at the designated uses, through the performance of UAAs. However, the Association of State & Interstate Water Pollution Control Administrators (ASIWPCA) has stated that the states do not necessarily want to start with the designated uses. Some Congressional staff have suggested that the report indicates the TMDL program is broken and due for a comprehensive rewrite - a next step that remains unlikely given Congress' reluctance to address the CWA in any comprehensive fashion anytime soon.
Environmental organizations are also expected to raise significant concerns over any broad examination of the designated uses. The environmental community has already suggested that widespread use of UAAs would represent a roll-back of regulations and would delay improvements in water quality.
The House Subcommittee on Water Resources & Environment is conducting a hearing on June 28 to formally review and consider the Committee's report. Kenneth Reckhow, the NRC Committee's Chair, will be the sole witness. The National Office will provide a timely report to the membership on the hearing.
For additional information, please contact Lee Garrigan at 202/833-4655 or lgarrigan@amsa-cleanwater.org, or Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.