Fundamental changes to Clean Water Act programs

• Oct 01, 1999

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The Clean Water Act (CWA), first established in 1972, has been successful in improving water quality and ecological health in the United States. State-of-the-art technology and water-quality based controls on municipal and industrial point source dischargers are responsible for this success. But as we near the year 2000, many waterbodies still do not meet the original "fishable/swimmable" goals of the CWA. Many water quality professionals believe that now is the time to refocus the CWA's original approach to address nonpoint sources (NPS), the largest U.S. surface water pollutant source.

Since 1991, attempts to reauthorize the CWA have failed, due in part to the controversy over expanding CWA authority to include NPS. Fundamental U.S. Environmental Protection Agency (EPA) program changes, however, are evolving through regulation, guidance, expanded stakeholder input, increased flexibility and updated scientific methods.

Impetus for change
The major reason for updating the water quality management program is that 40 percent of U.S. waters do not meet water quality goals. Existing programs are unable to solve this problem. NPS pollutants such as nutrients, toxic metals and organics, pathogens, oxygen-depleting substances and sediments, as well as habitat and flow alterations, impact ecosystems and human health. Bioaccumulation of toxics in fish has led to thousands of fish consumption advisories in 48 states. In some parts of the country, pathogenic microorganisms such as Cryptosporidium in drinking water have caused human deaths.

New initiatives, policies and actions
Four major documents provide new initiatives, policies and actions for fundamental changes to U.S. water quality management programs:

• Clean Water Action Plan (CWAP)
, EPA and U.S. Department of Agriculture, February 1998. A blueprint that encompasses 100 "key actions," emphasizing the watershed approach, NPS controls, strengthened water quality standards and federal agency stewardship of natural resources.
• Water Quality Criteria and Standards Plan
, EPA, June 1998. A presentation of the EPA strategy to update and expand federal water quality criteria (WQC) and state water quality standards (WQS).
• Advanced Notice for Public Rulemaking (ANPRM)
, EPA, January 1999. A public forum for potential changes to the federal WQS regulations, focusing on waterbody designated uses, WQC, mixing zones, antidegradation and independent application policy.
• Total maximum daily load (TMDL) guidance
, EPA, pending. The CWA Section 303(d) requires the states to identify waters that are not "fishable, swimmable" and to develop total maximum daily loads (TMDLs) for them, with oversight from EPA. Because of resource constraints and the complexity of TMDL development, most states have not completed the required studies, leading to a series of lawsuits by environmental groups. As a result, the pace of TMDL development has increased in the states. An EPA-sponsored federal advisory workgroup released its final report in October 1998. EPA is in the process of developing a guidance document that reflects current policy on this program.

Common trends and themes
A number of common trends and themes run through these documents, policies and associated public discussions:

Focus on watersheds. EPA has historically embraced a watershed approach - an environmental management framework that addresses the highest priority hydrological problems within geographic areas. Additionally, a broad range of stakeholders, including federal and state agencies, municipalities, water authorities, industries, and environmental and citizen action groups have begun advocating a watershed approach to water quality assessment and management. Most states have refocused their resources to complete watershed-based TMDL studies. It is clear that the watershed approach will be used as the primary framework for the next generation of the water quality program.

Nonpoint sources runoff. NPS runoff is the largest pollutant source to U.S. surface waters. Guidance for Federal Consistency with NPS Programs (EPA, August 1998) encourages states to develop consistent, strong NPS programs under CWA Section 319. Other NPS categories simultaneously being addressed include sediment and atmospheric deposition. The Contaminated Sediment Management Strategy (EPA, April 1998) discusses the assessment and remediation of contaminated sediments, and environmentally sound management of dredging and dredged material disposal. It also inventories potentially contaminated sediment sites and sources. The Great Waters Plan was developed to provide regulation of air emissions and important sources of toxics and nutrients for water quality protection (Deposition of Air Pollutants to the Great Waters, Second Report to Congress, EPA 453R97011, June 1997).

Updated water quality criteria and standards. The basis for waterbody and watershed assessments and the primary focus of the water program is to update and expand WQC (EPA) and WQS (state) compliance goals. The first of the 10 principles for restoring and protecting U.S. waters is strong WQS. EPA proposes in its draft National Nutrient Strategy (June 1998) to update and develop new WQC values for water and sediment and to expand WQC parameters to include nutrients, microbial pathogens and biocriteria. EPA also reports the latest scientific methodology for developing human health WQC in its draft guidance document (August 1998).

These revisions will cause fundamental changes to the water quality program. They also have the potential to raise issues such as the universal applicability of wildlife criteria; the technical basis for nutrient criteria; the lack of specific criteria for wet weather or ephemeral streams; the lack of demonstrated correlation between criteria values and ecological response in waterbodies; and uncertainty about EPA's mandate under the CWA to develop sediment, flow, wildlife and biocriteria.

Extensive waterbody assessment. The scientific community generally accepts that comprehensive waterbody assessment is essential for making rational cost-effective watershed management decisions. This approach is holistic, promoting a complete understanding of the ecological health of a waterbody. Many stakeholders advocate the weight-of-evidence approach, which involves monitoring and assessing the physical, chemical, biological and toxicological characteristics of a waterbody, eventually modifying or replacing EPA's current independent application policy.

EPA appears to be advocating such an approach in the application of sediment quality criteria. An exceedance of an SQC value would indicate the potential for impairment and trigger further investigation. Determination of impairment is based on a comprehensive assessment using measurements of sediment toxicity, abundance and diversity of plants and animals living on the bottom of a water body (benthic community), and sediment chemistry.

Other considerations
What is "good science"? Stakeholders must agree to use "good science" in watershed management decisions, but there is a significant difference of opinion between environmentalists and the regulated community over what constitutes good science.

Greater spectrum of options. Application of the most current scientific methods in waterbody assessment will likely result in fewer inflexible mandates and provide a greater spectrum of options for water quality management. While most stakeholders welcome increased flexibility, environmentalists are concerned that too much flexibility could impact a consistent baseline program.

Increased complexity and resource constraints. The programs in the water quality initiative significantly increase the complexity and resource needs of water quality management. State agencies and regional EPA offices are unlikely to have the required range of skills, resource bases or funding for program implementation, and may be tempted to use less resource-intensive and less scientifically appropriate approaches for watershed studies.

Improved public access to information. By holding public meetings for information and feedback, EPA is able to meet the CWAP mandate to improve public information access. EPA has also developed Web sites to provide additional information (see E-sources).

Continuing stakeholder participation. In addition to municipal and industrial dischargers and environmental groups participating in the CWA debate, new groups will continue to become incorporated, particularly from the agricultural sector. The CWAP promotes cooperation between federal agencies and other stakeholders to support watershed activities and natural resources stewardship. EPA is encouraging as much input and consensus among stakeholders as possible, in order to provide a variety of science-based and cost-effective solutions.

Rapid evolution
The nation's water quality program, with a goal of further water quality improvement, is evolving rapidly and poses several opportunities and challenges. The resulting program will represent a new generation, focused on cost-effective watershed management using comprehensive and updated scientific techniques. Stakeholders should stay current with evolving regulations and requirements, as well as learn how to most effectively use advanced techniques to achieve compliance goals.

Benthic community - Life in or on the sediments of a waterbody

Bioaccumulation - The process by which organisms absorb and retain chemicals or elements from their environment, especially from their food

Biological criteria (biocriteria) - Quantitative and narrative goals for the aquatic community "used within water programs to refine use designations, establish criteria for determining use attainment/nonattainment, evaluate effectiveness of current water programs, and detect and characterize previously unknown impairments" (EPA)

Ecosystem - "The interacting system of a biological community and its non-living environmental surroundings" (EPA)

Ephemeral streams - Streams in which no flow is common

Estuary - "Region of interaction between rivers and near-shore ocean waters, where tidal action and river flow mix fresh and salt water. Such areas include bays, mouths of rivers, salt marshes and lagoons. These brackish water ecosystems shelter and feed marine life, birds and wildlife." (EPA)

Mixing zones - Limited areas where initial dilution of a discharge takes place; water quality changes may occur; and certain water quality standards may be exceeded

Nonpoint sources - Sources associated with widespread activities such as agriculture, atmospheric deposition, or erosion and runoff

Point source dischargers - Identified, generally permitted, dischargers, such as municipal and industrial firms

Stakeholder - "Any organization, governmental entity or individual that has a stake in or may be impacted by a given approach to environmental regulation, pollution prevention, energy conservation etc." (EPA)

Total maximum daily load - The mass of constituent that, when loaded to a water, allows adherence with the WQS. Also refers to the process of estimating this quantity and allocating it among point and nonpoint sources.

Watershed - "The areas that drain to surface waterbodies. A watershed generally includes lakes, rivers, estuaries, wetlands, streams and the surrounding landscape." (EPA)

Watershed approach - "A watershed approach is a coordinating framework for environmental management that focuses public and private sector efforts to address the highest priority problems within hydrologically defined geographic areas, taking into consideration both ground and surface water flow." (EPA)

Weight of scientific evidence - "Considerations in assessing the interpretation of published information about toxicity - quality of testing methods, size and power of study design, consistency of results across studies, and biological plausibility of exposure-response relationships and statistical associations." (EPA)

Sector facility indexing project - reports on compliance status of members of major industries
http://es.epa.gov/oeca/sfi/

US Geological Survey's water resources page - access to data on water quality and receiving water flows
http://water.usgs.gov/

U.S. EPA links to regional and state agency Web sites
www.epa.gov/regional/federal/envrolst.htm

U.S. EPA Office of Science and Technology - recent developments in water quality standards
www.epa.gov/OST/

U.S. EPA's watershed approach, including the Clean Water Action Plan
www.epa.gov/OWOW/watershed/

Surf Your Watershed - various information on water quality and water use organized by basin
www.epa.gov/surf/

Index of water-related Federal Register notices for the last several years
www.epa.gov/fedrgstr/EPA-WATER/

Online query capability on multi-media permit compliance
www.epa.gov/enviro/html/ef_query.html

Total maximum daily load (TMDL) guidance
www.epa.gov/owow

This article originally appeared in the 10/01/1999 issue of Environmental Protection.