Changing Currents
Given the lack of a clear mandate in the presidential election and the close balance between the political parties in Congress, it is likely that there will be no major redirection of the United States' water quality program in 2001. A major reauthorization of the Clean Water Act remains an unlikely prospect, and trends begun in the past few years are expected to continue. These trends include redefinition of the goals of the water quality program, increased reliance on a watershed-based approach and controls on stormwater and non-point source pollution.
TMDL program
Nationwide, approximately 20,000 individual water bodies and river reaches are listed by the states as having impaired water quality. These waters include 300,000 miles of rivers and shorelines and about five million acres of lakes and ponds. Under Section 303(d) of the 1972 Clean Water Act, such waters are subject to development of Total Maximum Daily Loadings (TMDL) by the states and increased water quality controls in order to achieve Water Quality Standards (WQS).
U.S. Environmental Protection Agency (EPA) issued its final regulation on TMDLs in July 2000. The final regulation considered over 34,000 written comments as well as extensive negotiation between EPA and various stakeholders, especially the states. The final regulation represented a compromise from the draft rule on many aspects of TMDL implementation including the requirement to offset new discharges with greater than one-to-one reductions in existing pollutant loadings. Congressional opposition to the final regulation has been strong and a "rider" was attached to an appropriation bill that prevents EPA from spending on implementation of the final rule during fiscal years 2000 and 2001.
| Forces at the federal, state and local levels will continue to advance Total
Maximum Daily Loadings and attending water quality management policies. |
Despite this, TMDLs will remain an important aspect of water quality management in the United States in the coming year. Forces at the federal, state and local levels will continue to advance TMDLs and attending water quality management policies.
Approximately 40 legal actions have been undertaken to force the development and implementation of TMDLs and EPA is under court order to ensure that TMDLs are established in many states. In addition, EPA is making clear that regulation and guidance developed in 1992 and 1997 place significant obligations on the states to develop and implement TMDLs. EPA and many states are likely to continue to emphasize the importance of TMDLs as a means of integrating water quality management. As an example of this, EPA recently issued guidance advocating that fish consumption advisories should be used in the development of state lists of impaired waters (303(d) list). Such a policy is likely to increase the number of waters listed due to toxic constituents in fish tissue. Therefore, even
though US EPA offered the states a voluntary hiatus from the creation of a 303(d) list in 2000, the lists created in the 2002 cycle are likely to include even more waters - in turn, triggering more TMDL development.
Water quality standards
The WQSs represent a set of narrative and quantitative goals which, when met, are intended to assure the health of water bodies. While WQS are adopted by state rule, EPA offers Water Quality Criteria (WQC) that most of the states adopt in some fashion. In several cases, the federal government has compelled the states to adopt important WQS. EPA is currently in the midst of a multi-year program to develop new WQC, expand the scope of the WQS, and limit exemptions to the WQS.
Among the most important new WQS will be for nutrients, such as phosphorous and nitrogen. Under a program begun in 1998, the states are currently in the process of developing such standards. While the states can develop their own process for developing WQS, they are subject to EPA review. The approaches, and resulting standards, are quite variable. In several states, the proposed WQS are well below common background levels. In every case, the resulting numerical standard will facilitate appraisal of the impairment status of the water body as well as the development of waste load allocations for facilities discharging nutrients.
EPA is proposing to modify the way in which it calculates WQC for the protection of human health. This includes many changes that are consistent with the stringent Great Lakes Water Quality Initiative, including the adoption of more conservative means of estimating fish tissue concentration of toxic constituents from their water concentration. As with the WQC for nutrients, this is likely to lead to more stringent wastewater permit limits, as well as make more common the listing of impaired waters due to toxins.
Another important aspect of the Great Lakes Water Quality Initiative is the phase out of mixing zones in which localized exceedances of WQS are allowed. This phase out will soon be complete in the Great Lakes basin. In 2001, EPA is expected to develop a national mixing zone policy that will extend restrictions to the rest of the country.
Cooling water intake regulations
Most facilities that withdraw water from natural water bodies for cooling purposes will be affected by new EPA regulations being developed under Section 316(b) of the Clean Water Act. Separate regulations are being developed for new and existing facilities. The regulation for new facilities was issued on July 20, 2000 (Federal Register Vol. 65, pp. 49059-49121, published August 10, 2000), and will be finalized in the summer of 2001. In addition, the draft regulation for existing facilities will be issued in the summer of 2001. EPA estimates costs of the draft regulation to be $12.1 million per year. However, experience with Section 316(b) requirements indicates that costs of the regulations are possibly in the billions, with potential impacts on facility operations.
The Section 316(b) regulations are intended to protect aquatic organisms from entrainment (i.e., passage through the cooling system) and impingement (i.e., entrapment on the screen covering the intake structure) associated with the intake of cooling water. The draft regulation for new facilities proposes specific nationwide requirements with respect to
* Location - Intake location is defined with respect to the size, amount of ambient flow and the ecological sensitivity of the source water body. The smaller the water body, the lower the ambient flow, and the more ecologically sensitive, the greater the limitation in cooling water flow and the more restrictive the design requirements,
* Facility capacity or flow rate - Closed cycle cooling will be required for ecologically sensitive water bodies. In addition, the facility flow rate would be specified based on the water body characteristics, with lesser flow available for smaller and more sensitive water bodies and
* Design - An intake velocity of 0.5 feet per second or less would be required. For sensitive water bodies, impingement and entrainment reduction technologies will be required.
Comments on the draft regulation (submitted in November 2000) will be used to finalize the regulation for new facilities and develop the draft regulation for existing facilities.
Ocean/coastal initiatives
Concerns about depletion of marine resources, increasing coastal development, habitat loss and pollutant levels in coastal waters - including the results of a study showing that 25 percent of beaches in 1999 were closed because of pathogenic microorganisms - have led to a series of ocean/coastal initiatives by Congress and the outgoing Clinton administration.
The BEACH Act, signed in October 2000, requires states to adopt beach water quality standards, regularly test beaches for pathogens and notify the public of unsafe conditions. The Act also authorizes $30 million through 2005 to assist states to develop and implement monitoring plans.
The Oceans Act, signed in August 2000, establishes a commission on ocean policy to evaluate measures to protect marine resources and the environment, enhance marine-related commerce and transportation, assess ocean-related technologies and sustainable use of marine resources and expand scientific knowledge of the marine environment. The commission will be established in early 2001, with policy recommendations due within 18 months.
EPA and the U.S. Department of Transportation have developed proposed regulations under the Shore Protection Act that would establish waste handling practices for vessels and waste transfer stations for the hauling and handling of municipal and commercial wastes. The regulations, to be finalized in 2001, would prohibit the release of wastes into coastal waters during loading, off loading and transport.
Cruise ship discharges are currently regulated through a combination of U.S. and international pollution prevention laws and regulations. EPA is assessing whether these laws adequately protect the marine environment or whether additional measures are required. Measures that EPA is considering include more extensive application of existing laws and regulations, new regulations and voluntary environmental management programs. Also, a requirement for new discharge standards for cruise ships operating along the Alaska coastline could be included in a Coast Guard reauthorization bill.
In November 2000, President Clinton signed the National Marine Sanctuaries Amendments Act of 2000, which increases protection for the nation's 13 marine sanctuaries. In May 2000, the President issued an Executive Order on Marine Protected Areas that contains initiatives to help protect areas of the ocean that are environmentally sensitive, ecologically important, economically valuable or historically significant. In conjunction with this Executive Order, EPA is expected to issue a draft regulation that revises Clean Water Act Section 403 ocean discharge criteria in late 2000/early 2001, with the final regulation in 2002. The regulation will likely include a proposal to establish special ocean protection areas.
| EPA set an advisory level for MTBE of 20 to 40 ppb in 1997 and is
reportedly developing a secondary standard that is expected to be
approximately 20 ppb. |
In 2000, there were bills in both houses of Congress to reauthorize the Coastal Zone Management Act. These efforts are expected to continue in 2001, with debate on whether the Coastal Nonpoint Pollution Control Program provisions should remain in the Act.
Drinking water
Protection of drinking water sources continues to be an EPA priority under the Safe Drinking Water Act (SDWA). For example:
* The Source Water Assessment Program (SWAP) requires assessments of every public drinking water system by 2003,
* The Unregulated Contaminant Monitoring Rule (UMCR) requires continued monitoring and reporting of a growing list of contaminants and
* EPA issued the second draft of the National Source Water Contamination Prevention Strategy in September 2000 and is expected to issue the final document by late 2000/early 2001. This document provides a strategic approach for all interested stakeholders to lower the risk of contaminants entering drinking water resources.
These activities continue to heighten the public awareness of drinking water issues, which will likely increase the effort required to obtain permits for new facilities and developments.
In addition, EPA is developing specific drinking water standards:
* The final revised arsenic drinking water standard is scheduled to be issued in June 2001. The proposed reduction of the standard from 50 parts per billion (ppb) to 5 ppb would have substantial economic impacts on public drinking water systems supplying more than 15 locations or 25 residents. However, the justification for the 5 ppb standard is being challenged by the drinking water industry and various other organizations.
* Contamination of groundwater with the gasoline additive methyl tertiary butyl ether (MTBE) continues to be a growing problem. EPA set an advisory level for MTBE of 20 to 40 ppb in 1997 and is reportedly developing a secondary standard that is expected to be approximately 20 ppb. Such a standard would be less stringent than the standards adopted in several states, and may precipitate legal issues in those states.
Stormwater
The stormwater Phase II regulations were issued at the end of 1999. These regulations address stormwater discharges from smaller municipalities and construction activities disturbing one to five acres. Although the permits for these sources are due in early 2003, small municipalities have a large task in developing best management practices (BMPs) by permit issuance. EPA is required to issue BMP guidance by the end of 2000. To ensure effective and workable BMPs by the 2003 deadline, municipalities should make significant progress on their BMP plans during 2001.
The Phase II regulations also include a "no exposure certification" form that must be submitted by those facilities that meet the industrial category definitions for stormwater permitting, but have no exposure of significant materials. There is no deadline for submittal of this form; however, those light industry facilities that claimed exemption from stormwater permitting because of no exposure of significant materials must prepare and submit the form. Otherwise, stormwater discharges from such facilities require a National Pollutant Discharge Elimination System (NPDES) permit.
As the stormwater permitting program matures, more jurisdictions are enforcing the rules by imposing fines on those facilities that have not obtained permit coverage or are not properly implementing their stormwater pollution prevention plans. It is likely that this trend will continue, especially in locations with impaired waters.
BMPs are generally considered to be an acceptable approach to compliance with water quality standards, even though municipal and industrial stormwater discharges are technically considered to be subject to numerical limitations. However, in several cities, moves have been made to impose numerical limits on municipal stormwater discharges, raising serious questions on ability of municipalities to meet such limits. It is likely that legislation to limit EPA's ability to impose numerical limits on municipal stormwater discharges will be introduced in 2001.
A new stormwater multisector general permit (MSGP) was issued on October 30, 2000 to replace the expired MSGP issued in 1995. This new MSGP has been streamlined by avoiding the repetition of common elements for the different sectors. Although there are no major shifts in the permitting approach, there are several changes that clarify and/or modify many of the requirements. Noteworthy are the opportunity for the "no exposure exemption", greatly simplifies requirements for Emergency Planning and Community Right-To-Know Act (EPCRA) 313 chemicals and agency assignment of the catch-all Sector AD. The deadline for submission of a Notice of Intent (NOI) -- a notice that an environmental impact statement will be prepared and considered -- requesting coverage under the reissued MSGP is January 29, 2001.
David Urban, PE, is a senior wastewater engineer, Mark Gerath is a senior program manager of the water resources department and Donald Galya, PE, is a vice president and director of the water resources program at ENSR, an environmental, consulting, engineering and remediation firm based in Acton, Mass. Mr. Galya can be reached via e-mail at dgalya@ensr.com.
This article originally appeared in the 01/01/2001 issue of Environmental Protection.