TMDLs and Impaired Water Listings: The Saga Continues
October 24, 2003
Background
Section 303(d)(1) of the Clean Water Act directs states to
identify those waters within their jurisdiction for which effluent limitations
required by section 301(b) of the Act are not stringent enough to achieve
applicable water quality standard(s). This section also requires the states to
establish a priority ranking for such "impaired waters," taking into account the
severity of the pollution and the designated uses of the waters. A state's list
of impaired waters is called its 303(d) list, and it must be submitted to
Environmental Protection Agency (EPA) for approval by April 1 of every
even-numbered year. States must then develop Total Maximum Daily Loads (TMDLs)
for the waters on its 303(d) list, in accordance with their priority ranking. A
TMDL represents the maximum amount of a particular pollutant that can be
discharged into a body of water without causing a violation of water quality
standards, calculated at a level sufficient to allow the impaired water to
eventually achieve water quality standards with an adequate margin of safety.
At the National Level
On August 25, 2003, EPA published its draft implementation
guidance on watershed permitting. 68 Fed. Reg. 51, 011. According to EPA,
watershed permitting has a "strong link" with TMDL development to clean up
impaired waters, as well as with watershed management and planning. While TMDLs
focus on individual water body segments, watershed-based permitting considers
water quality goals of entire watersheds, and takes into account how those
watersheds are affected by multiple pollution sources, both point and
non-point. EPA claims that a watershed approach will help meet water quality
goals more effectively than traditional permit-based approaches and will allow
more opportunity for water quality trading, which could occur within the entire
watershed rather than just on a single water body. The draft guidance is
available at: http://cfpub.epa.gov/npdes/wqbasedpermitting/wspermitting.cfm
On July 21, 2003, EPA's Office of Wetlands, Oceans, and
Watersheds issued its "Guidance for 2004 Assessment, Listing and Reporting
Requirements Pursuant to Sections 303(d) and 305(b) of the Clean Water Act."
Section 305(b) requires states to submit comprehensive biennial reports on all
state waters. States must submit their 303(d) lists and 305(b) reports by April
1, 2004, and this Guidance – similar to 2002 guidance it replaces – encourages
states to submit an Integrated Report containing both documents, using the
Integrated Report format set forth in the Guidance. The key components of the
Integrated Report are: geographic referencing of all water resources;
categorization of waters (from 1, meets all designated uses; to 5, needs a TMDL)
according to whether they meet water quality standards; identification,
prioritization, and scheduling of waters needing TMDLs; identification of waters
where information is not sufficient to determine its attainment status; and a
schedule of monitoring for the next reporting cycle. The Guidance sets forth
EPA's thoughts and guidance on the use of state assessment methodologies, like
Florida's Impaired Waters Rule, to categorize and list waters. For the 2004
reports, it refines what should be considered minimum data requirements and
sample size requirements used for assessment determinations and addresses
probability-based sampling designs and use of a consistent methodology, or
"geo-referencing" scheme, to establish water segments. The new Guidance
specifically addresses issues raised during the 2002 listing cycle, such as the
statistical methods that should be used for assessing exceedance, and the
percentage of exceedance that must occur for a water body to be deemed
"impaired" under a state methodology. The Guidance reiterates EPA's support of
a rotating-basing approach for assessing waters and provides how such an
approach can be consistent with the April 1, 2004, deadline.
In June 2003, the U.S. Supreme Court let stand the decision
by the U.S. Courts of Appeal for the Ninth Circuit in Pronsolino v. Nastri
that
upheld EPA's listing of a California river as impaired under Section 303(d),
even though the only source of the impairment was from sediment and non-point
source agricultural runoff. Point source dischargers consider the High Court's
refusal to hear the case as a victory, as they have contended that nonpoint
source pollution must be addressed for water quality to improve nationwide.
Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002), cert. denied, 71 U.S.L.W.
3772 (June 16, 2003).
At the Florida level
Before June of this year, Florida's most recent 303(d) list
was last approved by EPA in 1998. Since that time, the Florida Legislature
enacted the Florida Watershed Restoration Act, directing the Florida Department
of Environmental Protection (FDEP) to develop a rule setting forth the
methodology by which FDEP would assess whether a body of water should be
included on the 303(d) list, thus needing a TMDL.
FDEP adopted its final Impaired Waters Rule, 62-303, on
April 26, 2001. Following an unsuccessful rule challenge by various
individuals and environmental groups, the rule became effective on June 10,
2002. DOAH Case No. 01-1332RP (Fla. DOAH May 13, 2002). The final order
was appealed to Florida's First District Courts of Appeal, and the appellate
court affirmed without opinion on May 8, 2003. Lane v. DEP, 845 So. 2d 189
(Fla. 1st DCA 2003). Not yet defeated, the environmental groups filed suit
against EPA in federal district court, asserting that the Impaired Waters Rule
was a revision to Florida's water quality standards, and as such, required
formal approval by EPA. Although EPA informally concurred in the Impaired
Waters Rule before it was adopted, no formal approval process was followed. On
May 29, 2003, the federal district court granted motions for summary judgment in
favor of EPA and intervenor FDEP, holding that the Rule was not a revision of
state water quality standards. Florida Public Interest Research Group Citizen
Lobby et al. v. EPA, Civil Action No. 4:02CV408-WS (N.D. Fla. 2003). The
challengers have still not thrown in the towel; on July 24, 2003, they filed a
notice of appeal with the Eleventh Circuit Courts of Appeal. No word yet on the
outcome to this appeal.
As soon as its Impaired Waters Rule became effective, FDEP
began using it to update its 1998 303(d) list, basin-by-basin. The FDEP has
organized the state's waters into 52 basins, which have in turn been organized
into 30 groups. These groups have been further divided into five groups for
purposes of applying FDEP's five-year, five-phase rotating basin cycle. Each
group represents approximately 20% of the state's watersheds, and assessment of
the waters in each group is occurring on a five-year cycle. As each group's
verified list is adopted, it is submitted to EPA for approval and serves to
update Florida's 1998 303(d) list for waters in those basins.
The so-called "Group 1 Basins" verified list of impaired
waters was adopted by Secretarial order on August 28, 2002, and submitted to EPA
Region IV on October 1, 2002. This submittal was amended on May 12, 2003.
On June 11, 2003, EPA issued its "Decision Document" regarding this submittal,
as amended. Although EPA determined that, overall, FDEP's application of the
new assessment rule was "very successful" in identifying impaired waters, EPA
identified 80 additional water segments that should have been included on the
Group 1 verified list. Many of these 80 segments were de-listed by FDEP based
on a requirement of the Watershed Restoration Act that requires the pollutant
causing the impairment to be identified before the water segment can be listed
as impaired. Thus, EPA has partially approved Florida's 2002 submission, but
added those 80 water segments to the list. The entire, currently approved
303(d) list is contained in an appendix to EPA's Decision Document.
FDEP is in the process of preparing impaired waters lists
for its "Group 2 Basins." On September 4, the Secretary issued an order adopting
the verified list of nutrient impaired waters for the main stem of the Lower St.
Johns River, in advance of the remaining Group 2 Basin waters, in order to
accommodate a September 30 deadline for TMDL development imposed by EPA. The
verified list for the remaining waters in the Group 2 Basins is scheduled to be
adopted in October 2003. The combined Group 2 Basin verified list would then be
submitted to EPA for approval in December 2003.
For more information, e-mail Susan L. Stephens at
susan.stephens@hklaw.com or call toll free, 1-888-688-8500.