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Regulatory Alert - RA 01-20 - EPA MEMORANDUM ON DEVELOPMENT AND ADOPTION OF NUTRIENT CRITERIA

Member Pipeline - Regulatory - Alert (RA 01-20)

To: Members & Affiliates
From: National Office
Date: November 21, 2001
Subject: EPA MEMORANDUM ON DEVELOPMENT AND ADOPTION OF NUTRIENT CRITERIA
Reference: RA 01-20

On November 14, Geoff Grubbs, Director of EPA’s Office of Science and Technology (OST) issued a memorandum providing additional guidance to states on the development and adoption of nutrient criteria into water quality standards. The memorandum, entitled Development and Adoption of Nutrient Criteria into Water Quality Standards, was developed in direct cooperation with state representatives. The document incorporates many of the recommendations AMSA has advocated since the first criteria were published in January 2001. A copy of the complete memorandum and associated appendices can be obtained at http://www.amsa-cleanwater.org/private/legreg/outreach/11-14-01nutrientswqsmemo.pdf.

Though EPA has always intended the national nutrient criteria to serve as starting points for states in developing their own criteria, AMSA did not believe that the existing guidance adequately explained what flexibility states would have to deviate from EPA’s methodology. AMSA believed that the lack of guidance, coupled with the rigid deadline for states to develop their own criteria by 2004, would lead to states adopting the national nutrient criteria by default. Simple adoption of the national criteria would short circuit a more detailed, state-specific criteria development process, and result in criteria that would not relate to the designated uses the criteria were intended to protect. The new memorandum directly addresses and resolves these concerns.

Background
Since 1999, AMSA has been active in the nutrient criteria development process, commenting on the National Strategy (November 1999), Lakes/Reservoirs Technical Guidance (July 2000), and Rivers and Streams Technical Guidance (September 2000) documents and participating as a stakeholder in discussions at the national and regional levels. On May 9, 2001, AMSA provided comments on the publication of the first ecoregional nutrient criteria (published January 9, 2001). AMSA highlighted several concerns with the criteria, including the lack of connectivity with designated uses, the percentile-based approach for establishing criteria, and the lack of clear guidance as to what states could and could not do when developing their own criteria. AMSA’s primary concern, however, was that states would be forced to default to the national criteria in order to meet the 2004 deadline. Considering that nutrient over-enrichment is currently one of the primary causes of water body impairment, many POTWs are expected to eventually face permit limits and total maximum daily load (TMDL) waste load allocations for nutrients. Without meaningful nutrient criteria, these limits and allocations will place unrealistic demands on POTWs.

Nutrient Criteria Plans
EPA’s November 14 memorandum clearly outlines how states can develop their own nutrient criteria, and details how much flexibility states have in setting priorities and ultimately defining the timeframes in which the criteria must be developed.

In the memorandum, EPA requests that each state develop a nutrient criteria plan to outline the specific strategy, milestones, and schedule for developing and adopting nutrient criteria. States are encouraged to detail their strategy for deriving quantitative endpoints, identify data required to develop the endpoints, describe how they will use existing data, and specify how they will fill data gaps. States must also address in their plan how the criteria they develop and adopt relate to the designated use classifications they are intended to protect.

While no state is required to develop these plans, EPA strongly encourages them. The flexibility that EPA provides in this memorandum, and the extent to which states can take full advantage of it, depends on these nutrient criteria plans. The plans are designed to "serve as a link" during the criteria development process "to ensure EPA can readily approve state/tribal standards when they are ultimately submitted." If states develop these plans and work with EPA to establish some mutually agreed upon expectations (as far as approach, milestones, and schedule), they will be able to "take advantage of the flexibility to develop criteria that reflect localized conditions for priority waters within an acceptable time period." While the plan does not represent a binding agreement between the states and EPA, EPA intends to rely on the plan and its expectations and milestones to determine if a state is making acceptable progress towards the goal of protecting its waters from the adverse effects of nutrient over-enrichment.

Flexibility Provided
EPA allows states to prioritize their waters based on the need to address already impaired waters and to prevent the impairment of waters that may be threatened when developing their nutrient criteria. The basis for defining these priorities must be laid out in the nutrient criteria plan, and EPA and the states must develop "mutual expectations" for how the priorities will be addressed. In establishing priorities, states must also address how they will ensure continued protection of waters that are not currently impaired or threatened by nutrient over-enrichment (a preventive approach) and how they will ensure the water quality of downstream waters.

EPA provides states with the flexibility to address nutrients using parameters other than those EPA recommends if shown to be appropriate and protective of designated uses. If states develop criteria at a larger ecoregion level, a comprehensive approach utilizing EPA’s parameters, total nitrogen, total phosphorus, chlorophyll-a and a measure of water clarity, is recommended. EPA recognizes that more
flexibility is appropriate if states choose to develop more specific nutrient criteria. For a particular waterbody or class of waterbodies, different variables or parameters may be more appropriate.

Finally, EPA clarifies that states have the flexibility to adopt numeric criteria to protect designated uses or to adopt methods and procedures that translate narrative criteria to protect designated uses.

Timeframe Expectations
Prior to the issuance of the November 14 memorandum, states were required to develop and adopt nutrient criteria by the end of 2004. Under this approach, if a state failed to meet this deadline, EPA would have the discretion to promulgate national criteria for the state. However, EPA is now encouraging states to work collaboratively with EPA to develop mutually agreed-upon schedules for adopting nutrient criteria that reflect the approach chosen by the state in their nutrient criteria plan. By the end of 2004, EPA will evaluate a state’s progress and determine how it compares to the agreed upon schedule in the nutrient criteria plan:

If a state develops a nutrient criteria plan in coordination with EPA and has met the mutually agreed-upon milestones by the end of 2004, EPA will likely conclude that substantial progress is being made and that federal promulgation of criteria is not necessary at that time.
If a state develops a nutrient criteria plan in coordination with EPA and has NOT met the mutually agreed-upon milestones by the end of 2004, EPA will evaluate whether federal promulgation would be appropriate and the Administrator would have the discretion to develop the criteria.
States that do not develop a nutrient criteria plan must comply with the original 2004 timeframe. If the state has not begun the administrative process (i.e., notice of proposed criteria) to adopt nutrient criteria by the end of 2004, EPA would evaluate whether federal promulgation would be appropriate. The Administrator would then have the discretion to make the determination that new or revised nutrient standards are necessary to meet the Clean Water Act requirements.

Summary
This guidance represents a major milestone in the development of scientifically sound nutrient criteria that are properly linked to the designated uses they are designed to protect. With additional flexibility to develop criteria that reflect local conditions and protect specific designated uses and with the additional time needed to conduct the necessary investigations, states will be able to develop more meaningful nutrient criteria.

AMSA encourages POTWs to get involved early on with the nutrient criteria development process in their state. POTWs should urge their state to use a more scientific, site-specific approach when establishing nutrient criteria. If you would like additional information on the new EPA memorandum, the overall nutrient criteria strategy, or how you can get more involved, please contact Chris Hornback, AMSA 202/833-9106 or chornback@amsa-cleanwater.org.