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Regulatory Alert - RA 05-07

Member Pipeline - Regulatory - Alert (RA 05-07)

To: Members & Affiliates
From: National Office
Date: August 10, 2005
Subject: U.S. EPA ISSUES FINAL 2006 LISTING GUIDANCE
Reference: RA 05-07

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The U.S. Environmental Protection Agency (EPA) issued its final 2006 Listing Guidance for integrating three biennial reports that states are required to submit under the Clean Water Act. The Guidance for 2006 Assessment, Listing, and Reporting Requirements Pursuant to Sections 303(d), 305(b), and 314 of the Clean Water Act encourages states to submit their Section 303(d) lists of impaired waters, their Section 305(b) water quality reports, and Section 314 reports on the Great Lakes in integrated form. A copy of the Listing Guidance and other information is available on EPA’s website (http://www.epa.gov/owow/tmdl/2006IRG/). This latest Guidance applies to reports that states and territories must submit to EPA in April 2006 and lays out methodologies for determining which waterbodies are impaired and require a total maximum daily load (TMDL). NACWA, through its membership in the Federal Water Quality Coalition, provided comments on the draft of the Guidance when it was made available in February.

EPA said it wants all 56 states and jurisdictions to employ the integrated format by 2008. Integrating all the reports will help the Agency achieve a “broad-scale, national inventory of water quality conditions.” In addition, the Agency believes the format will provide a comprehensive report on the water quality attainment status of assessed waters, document the availability of information for each waterbody, identify trends, and provide information for establishing priorities. The TMDL program has been rife with problems most notably from a lack of sound, scientific data on the true status of the nation’s waters. Too often this has resulted in additional regulatory burdens on publicly owned treatment works (POTWs) and other dischargers based on suspect information. NACWA continues to advocate for consistent, science-based approaches for assessing the quality of the nation’s waters. Better and more accurate data helps federal and state policymakers as well as managers of municipal clean water agencies make more informed decisions about where to target their scarce resources.

Like the 2004 guidance, this Listing Guidance provides five categories in which waterbodies or their appropriate segments[1] may be listed based on the amount of available data:

The Guidance goes into significant detail on categorizing waters. Of particular interest to POTWs and other dischargers is Category 4(b), in which alternative pollution controls may be applied in place of a TMDL. EPA said it would evaluate these situations on a case-by-case basis, but states would have to submit their rationales for choosing an alternative control plan over a TMDL. Specifically, the Guidance says that impaired segments do not have to be included on the Section 303(d) list if “technology-based effluent limitations required by the Act, more stringent effluent limitations required by state, local, or federal authority, or `[o]ther pollution control requirements (e.g., best management practices) required by local, State or Federal authority’ are stringent enough to implement applicable water quality standards (see 40 CFR 130.7(b)(1)(iii)) within a reasonable period of time” (See page 54 of the Guidance). States have to demonstrate that the alternatives to a TMDL are indeed “requirements” and will achieve water quality standards within a “reasonable time” in order for EPA to approve them. The Guidance then discusses what it means by “reasonable time,” a term that varies by situation. If the state can no longer show that the alternatives will achieve the desired goal of meeting water quality standards, the waterbody would be moved to Category 5, and a TMDL would be required. For example, Category 4(b) listings may be warranted when:

NACWA members may also be interested in the Category 4(c) option for waterbodies impaired by certain types of pollution versus a specific pollutant. A TMDL may be required for an impairment caused by a pollutant, but not necessarily from pollution. For example, a stream segment may be impaired because of a lack of adequate flow. In cases where the impairment is not caused by a pollutant, the Guidance directs states to monitor those segments to confirm no pollutant is causing the impairment.

EPA improved the Guidance from the 2004 version in the areas of data quantity, fish advisories, and antidegradation. Given that it would be impossible to sample every segment of a waterbody at frequent intervals to determine its water quality status, the Guidance directs states to make determinations based on individual data points by balancing the extremes of considering every grab sample to represent the instant from which it was taken versus being representative of conditions over several years. Such decisions can affect whether a waterbody is listed as impaired and requires a TMDL that could impose stricter NPDES limits on POTWs and other dischargers. The Guidance calls for adequate data collection to make water quality determinations but does not impose rigid minimum sample size requirements.

Since integrated reports will be submitted by each state, NACWA encourages its members to review the Listing Guidance and contact their state regulators to discuss how it will be implemented. Please contact Susie Bruninga, NACWA Manager for Regulatory Affairs, at (202) 833-3280 or at sbruninga@nacwa.org, with any comments or concerns regarding the Listing Guidance.

 

 

[1] Previous guidance documents used the term “assessment unit (AU)” instead of “segment” to describe specific areas in a waterbody. “Segment and “AU” are used synonymously by EPA in the 2006 Guidance (See page 46 of the document).