Water Quality
Improved EPA Guidance and Support Can Help States Develop Standards That Better Target Cleanup Efforts
Gao ID: GAO-03-308 January 30, 2003
Water quality standards are composed of designated uses and criteria. These standards are critical in making accurate, scientifically based determinations about which of the nation's waters are in need of cleanup. To assess EPA and states' actions to improve standards, the Chairman of the Subcommittee on Water Resources and Environment asked GAO to determine the extent to which (1) states are changing designated uses when necessary and EPA is assisting the states toward that end and (2) EPA is updating its criteria documents and assisting states in establishing criteria that can be compared with reasonably obtainable monitoring data.
The extent to which states are changing designated uses varies considerably. Regardless of the number of use changes states have made to date, nearly all states report that some portion of the water bodies within their states currently need changes to their designated uses. Among the key reasons these needed use changes have not been made is states' uncertainty over the circumstances in which use changes are acceptable to EPA and the evidence needed to support those changes. As required, EPA has developed and published criteria for a wide range of pollutants. However, EPA has not developed criteria for sedimentation or finalized criteria for nutrients--the pollutants that, according to EPA data, account for a relatively large share of the nation's impaired waters. Even when national criteria do exist, some states have difficulty establishing their criteria in such a way that they can be compared with reasonably obtainable monitoring data. In addition, a vast majority of states find it difficult to modify their existing criteria when warranted by new information or other circumstances. Changing either designated uses or criteria is considered a standards modification. Twenty-two states reported that an improvement in the process of changing designated uses would result in different water bodies being slated for cleanup, and 22 states reported that an improvement in the process of modifying criteria would have that effect. Superimposing the states' responses indicates that 30 states would have different water bodies slated for cleanup with an improvement in the process of modifying standards.
Recommendations
Our recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
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GAO-03-308, Water Quality: Improved EPA Guidance and Support Can Help States Develop Standards That Better Target Cleanup Efforts
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Report to the Chairman, Subcommittee on Water Resources and
Environment, Committee on Transportation and Infrastructure, House of
Representatives:
January 2003:
WATER QUALITY:
Improved EPA Guidance and Support Can Help States Develop Standards
That Better Target Cleanup Efforts:
GAO-03-308:
GAO Highlights:
Highlights of GAO-03-308, a report to the Chairman, Subcommittee on
Water Resources and Environment, Committee on Transportation and
Infrastructure, House of Representatives:
Why GAO Did This Study:
Water quality standards are composed of designated uses and criteria.
These standards are critical in making accurate, scientifically based
determinations about which of the nation‘s waters are in need of
cleanup. To assess EPA and states‘ actions to improve standards, the
Chairman of the Subcommittee on Water Resources and Environment asked
GAO to determine the extent to which (1) states are changing designated
uses when necessary and EPA is assisting the states toward that end
and (2) EPA is updating its criteria documents and assisting states in
establishing criteria that can be compared with reasonably obtainable
monitoring data.
What GAO Found:
The extent to which states are changing designated uses varies
considerably. Regardless of the number of use changes states have made
to date, nearly all states report that some portion of the water bodies
within their states currently need changes to their designated uses.
Among the key reasons these needed use changes have not been made is
states‘ uncertainty over the circumstances in which use changes are
acceptable to EPA and the evidence needed to support those changes.
As required, EPA has developed and published criteria for a wide range
of pollutants. However, EPA has not developed criteria for
sedimentation or finalized criteria for nutrients”the pollutants that,
according to EPA data, account for a relatively large share of the
nation‘s impaired waters. Even when national criteria do exist, some
states have difficulty establishing their criteria in such a way that
they can be compared with reasonably obtainable monitoring data. In
addition, a vast majority of states find it difficult to modify their
existing criteria when warranted by new information or other
circumstances.
Changing either designated uses or criteria is considered a standards
modification. Twenty-two states reported that an improvement in the
process of changing designated uses would result in different water
bodies being slated for cleanup, and 22 states reported that an
improvement in the process of modifying criteria would have that
effect. Superimposing the states‘ responses indicates that 30 states
would have different water bodies slated for cleanup with an
improvement in the process of modifying standards.
What GAO Recommends:
GAO recommends that the Administrator, EPA (1) provide additional
guidance regarding use changes, (2) follow through on plans to assess
the feasibility of establishing a clearinghouse of approved use
changes, (3) set a time frame for developing sedimentation criteria,
(4) develop alternative, scientifically defensible monitoring
strategies that states can use to determine if water bodies are
meeting the criteria, and (5) develop guidance and a training
strategy to help EPA regional staff in determining the scientific
defensibility of proposed criteria modifications. EPA agreed to give
serious consideration to GAO‘s recommendations and provided several
technical comments and clarifications.
Contents:
Letter:
Executive Summary:
Purpose:
Background:
Results in Brief:
Principal Findings:
Recommendations:
Agency Comments:
Chapter 1:
Designated Uses:
Water Quality Criteria:
Standards Review and Revision:
Importance of Accurate Water Quality Standards in Identifying Polluted
Waters:
Objectives, Scope, and Methodology:
Chapter 2:
States Thus Far Report Wide Variation in the Extent to Which They
Change Designated Uses:
Future Use Changes May Dwarf Those Made to Date:
Lack of Clear Guidance Complicates States‘ Efforts to Make
Defensible Designated Use Changes:
EPA Regional Approaches Concerning States‘ Designated Use Changes Are
Inconsistent:
Different Water Bodies Would Be Slated for Cleanup If Improvements Were
Made:
Conclusions:
Recommendations:
Agency Comments and Our Evaluation:
Chapter 3:
Key Criteria Documents Have Not Been Developed by EPA:
Many States Cannot Reasonably Monitor to Determine if Criteria Are
Being Met:
States Report Difficulty in Modifying Criteria:
Improving Criteria Would Result in Different Waters Being Slated for
Cleanup:
Potentially Large Cumulative Impact of Both Designated Uses
and Criteria on Impaired Waters Lists:
Conclusions:
Recommendations:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: EPA‘s Water Quality Standards Program Budget from 1992
through 2002:
Appendix II: GAO Survey of State Water Quality Standards Programs:
Appendix III: Comments from the Environmental Protection Agency:
Appendix IV: GAO Contacts and Staff Acknowledgments:
Table:
Table 1: EPA Water Quality Standards Program Budget Amounts from 1992
through 2002:
Figures Figures:
Figure 1: States Reporting That Different Water Bodies Would Be Slated
for Cleanup if Improvements Were Made to the Process of Changing
Standards:
Figure 2: Number of Designated Use Changes Reported by Each State from
1997 through 2001:
Figure 3: Water Quality Standards as the Basis for Cleanup Decisions:
Figure 4: Number of Designated Use Changes Reported by Each State from
1997 through 2001:
Figure 5: Number of States Reporting Various Percentages of Their Water
Bodies Needing Designated Use Changes:
Figure 6: States‘ Responses to Whether Different Water Bodies Would Be
Slated for Cleanup if the Process for Changing Designated Uses Were
Improved:
Figure 7: Percent of Impairments Nationwide Caused by Various
Pollutants:
Figure 8: States‘ Responses on the Extent to Which Their Criteria Can
Be
Used to Determine Whether Their Water Bodies Are Impaired:
Figure 9: States Reporting the Ease or Difficulty of Modifying Water
Quality Criteria:
Figure 10: States Reporting That Different Water Bodies Would Be Slated
for Cleanup if Improvements Were Made to the Process of Changing
Standards:
ASIWPCA: Association of State and Interstate Water Pollution
Control Administrators:
EPA : Environmental Protection Agency:
NPDES: National Pollution Discharge Elimination System:
TMDL: total maximum daily load:
UAA: use attainability analysis:
January 30, 2003:
The Honorable John J. Duncan, Jr.
Chairman, Subcommittee on
Water Resources and Environment
Committee on Transportation
and Infrastructure
House of Representatives:
Dear Mr. Chairman:
In response to your request, this report discusses the extent to which
(1) states are refining designated uses when necessary and the
Environmental Protection Agency (EPA) is assisting states toward that
end and (2) EPA is updating its criteria documents and assisting states
in establishing criteria that can be compared with reasonably
obtainable monitoring data. We include recommendations to the
Administrator of EPA to provide additional guidance regarding
designated use changes to the states and regional offices that
clarifies when a change is appropriate, what data are needed to justify
the change, and how to establish subcategories of uses; follow through
on the agency‘s plans to assess the feasibility of establishing a
clearinghouse of approved designated use changes by 2004; set a
time frame for developing and publishing nationally recommended
sedimentation criteria; develop alternative, scientifically defensible
monitoring strategies that states can use to determine if water bodies
are meeting the criteria; and develop guidance and a training strategy
that will help EPA regional staff determine the scientific
defensibility of proposed criteria modifications.
As arranged with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
from the date of this letter. At that time, we will send copies to the
appropriate congressional committees, the Administrator of EPA, and the
Director of the Office of Management and Budget. We will make copies
available to others upon request. In addition, the report will be
available at no charge on the GAO Web site at http://www.gao.gov.
Please call me or Steve Elstein on (202) 512-3841 if you or your staff
have any questions. Key contributors to this report are listed in
appendix IV.
Sincerely yours,
Signed by John B. Stephenson:
John B. Stephenson
Director, Natural Resources
and Environment:
[End of section]
Executive Summary:
Purpose:
According to the Environmental Protection Agency (EPA), more than
20,000 bodies of water throughout the country are too polluted to meet
water quality standards, and it may cost billions of dollars to clean
them up. Under the Clean Water Act, states adopt water quality
standards as the benchmarks against which pollution levels within their
water bodies are measured. As such, the standards are critical in
making accurate, scientifically based determinations as to which waters
are impaired and require attention. In recent years, however, questions
have been raised as to whether current water quality standards are
accurate and, therefore, whether the right waters are being targeted
for cleanup.
In his capacity as Chairman of the House Subcommittee on Water
Resources and Environment, Committee on Transportation and
Infrastructure, Representative Duncan asked GAO to determine whether
EPA and the states are doing all they should to ensure that the two key
components of water quality standards--the ’designated uses“ that
identify the purposes which a given body of water is intended to serve
and the ’water quality criteria“ that are used to determine whether the
water‘s quality is high enough to achieve these uses--can be used to
make accurate determinations as to which waters are impaired and
therefore require remediation. Specifically, GAO was asked to determine
the extent to which (1) states are changing designated uses when
necessary and EPA is assisting the states toward that end and (2) EPA
is updating its criteria documents and assisting states in establishing
criteria that can be compared with reasonably obtainable monitoring
data.
To respond to the Chairman‘s request, GAO obtained information from
state water quality officials through a Web-based survey of the 50
states and the District of Columbia. GAO also completed telephone
surveys with all 10 EPA regional offices and conducted site visits to
Kansas, Ohio, and Montana. GAO also met with, and obtained information
from, officials from EPA‘s headquarters and the Association of State
and Interstate Water Pollution Control Administrators
(ASIWPCA)[Footnote 1] and interviewed representatives of various
interest groups such as Earthjustice and the American Farm Bureau
Federation. (See chapter 1 for a detailed description of our scope and
methodology.):
Background:
Water quality standards comprise two key components--designated uses
and water quality criteria. Designated uses are uses assigned to water
bodies, such as drinking water, contact recreation (e.g., swimming),
and aquatic life support (e.g., fishing). Water quality criteria
specify pollutant limits that are intended to protect the designated
uses of a water body, such as the maximum allowable concentration of a
pollutant (e.g., iron) or an important physical or biological
characteristic that must be met (e.g., an allowable temperature range).
Water quality criteria can be numeric (i.e., quantitative) or narrative
(i.e., qualitative), and they can include components such as the
frequency and duration of monitoring needed to determine whether the
criteria are being met. To develop criteria, states rely heavily on
EPA-developed ’criteria documents“ containing the technical data that
help states adopt pollutant levels that, if not met, may preclude a
water body from meeting its designated uses. EPA is responsible for
developing and revising criteria documents in a manner that reflects
the latest scientific knowledge. States may adopt these criteria as
recommended by EPA, adapt them to meet state needs, or develop criteria
using other scientifically defensible methods.
States are required to review both their waters‘ designated uses and
associated criteria periodically and propose changes to EPA as
appropriate. Before its changes can take effect, the state must submit
them to EPA and obtain approval of the changes. EPA is required to
review and approve or disapprove standards changes proposed by a state
within 60 to 90 days.
States generally determine if a water body‘s designated use is being
achieved by comparing monitoring data with applicable state water
quality criteria. If the water body fails to meet the applicable
standards, the state is required to list that water as impaired,
calculate a pollution budget under EPA‘s Total Maximum Daily Load
(TMDL) program, which specifies reductions necessary to achieve the
standard, and then eventually implement a cleanup plan. Thus, as noted
in a 2001 report by the National Academy of Sciences, water quality
standards are the foundation on which the entire TMDL program rests: if
the standards are flawed, all subsequent steps in the TMDL process will
be affected.
Results in Brief:
The extent to which states are changing designated uses varies
considerably, with states making anywhere from no use changes to more
than 1,000 use changes during the 5-year period from 1997 through 2001.
Regardless of the number of use changes states have made to date,
nearly all states report that they have water bodies within their
states that currently need changes to their designated uses. According
to the states, some of these needed designated use changes have not
been made because of barriers states face to making these changes, with
many citing, for example, a lack of resources and monitoring data or
resistance from interest groups and affected parties. Importantly, in
some instances, another key reason needed use changes have not been
made is states‘ uncertainty over the circumstances in which use changes
are acceptable to EPA and the evidence needed to support those changes.
Many states said they need additional assistance from EPA to make
accurate and defensible decisions on what some believe will be a much
larger number of designated use changes in coming years. Specifically,
they cited a need for additional EPA guidance that clarifies both the
circumstances under which a use change is acceptable and the type of
evidence needed to support those changes. EPA headquarters officials
acknowledge this need and have formed a national working group to
develop additional guidance regarding designated use changes. Such
guidance would also (1) help clarify to EPA regional officials what
state-proposed changes are acceptable and (2) promote more consistent
review and approval policies across EPA‘s 10 regional offices. Among
other things, GAO is recommending that EPA clarify its guidance to the
states and regions on when a use change is appropriate and what
constitutes an approvable designated use change and develop a
clearinghouse that provides the states and regions with examples of
approved use changes.
As required, EPA has developed and published criteria for a wide range
of pollutants. However, EPA has not developed criteria for
sedimentation and is currently in the process of developing the complex
criteria needed for nutrients. According to EPA data, these pollutants
account for a relatively large share of the nation‘s impaired waters.
Hence, it is not surprising that states responding to GAO‘s survey rank
these two pollutants as their highest priorities for criteria
development. Even when EPA criteria documents have been developed, some
states have reported difficulty in using the documents to establish
criteria in such a way that the criteria can be easily compared with
reasonably obtainable monitoring data. As a related matter, states also
expressed difficulty in modifying the criteria they already have in
place when they find it necessary to reflect, for example, new data or
changing ecological conditions. While most states cited resource
constraints as a barrier that affects their ability to make criteria
modifications, more than half of the states also cited EPA‘s approval
process--noting, for example, insufficient assistance from their
respective EPA regional offices in helping them understand what data
are necessary to justify a criteria modification. Inconsistency among
EPA regional offices in providing this assistance has been due, in
part, to a lack of staff expertise among some offices in determining
the scientific feasibility of criteria modifications. To help states
better meet their criteria needs, GAO is recommending that EPA (1) set
a time frame for developing and publishing sedimentation criteria, (2)
develop alternative, scientifically defensible monitoring strategies
that states can use to determine if water bodies are achieving their
water quality criteria, and (3) develop guidance and a training
strategy that will help EPA regional standards staff determine the
scientific defensibility of proposed criteria modifications.
Taken together, states‘ designated uses and water quality criteria,
which comprise their water quality standards, determine how states
identify their impaired waters. If states are unable to correctly
identify their impaired waters, they risk focusing their limited
resources on the wrong water bodies and/or exposing their citizens to
health and environmental risks. As figure 1 illustrates, 30 states
reported that if improvements were made to the process of modifying
standards (through changes to designated uses and/or criteria),
different waters would be identified for TMDL development.
Significantly, this total does not reflect the effects on impaired
waters lists of new criteria developed by EPA and the states. As EPA
issues new numeric criteria for sedimentation and other pollutants and
finalizes the nutrient criteria currently under development, states
will be required to adopt numeric criteria for these key pollutants. As
states adopt the new criteria, they will likely list different waters
as impaired.
Figure 1: States Reporting That Different Water Bodies Would Be Slated
for Cleanup if Improvements Were Made to the Process of Changing
Standards:
[See PDF for image]
[End of figure]
Note: GAO analysis of state data.
Principal Findings:
States‘ Practices in Changing Designated Uses Vary Widely:
As figure 2 illustrates, states vary widely in the extent to which they
have made designated use changes, with states making anywhere from no
use changes to more than 1,000 use changes during the 5-year period
from 1997 through 2001. Regardless of the number of designated use
changes that have been made to date, nearly all states told GAO that
designated use changes will be needed in the future. The total number
of such changes may dwarf those already made. For example, Oregon
officials noted that while the state did not make any use changes from
1997 through 2001, they believe designated use changes are needed for
more than 90 percent of its basins. Four other states reported that
more than 50 percent of their water bodies currently need use changes.
Many states explained their current need to make designated use changes
by noting, among other things, that many of their original use
decisions, made during the 1970s, were made without the benefit of
accurate data. States‘ survey responses also indicate that states
believe more protective uses are needed for some waters, while less
protective uses are needed for others.
A key reason states have not made more of their needed designated use
changes, according to responses to the GAO survey, is the uncertainty
many state water quality officials face as to the circumstances under
which use changes are acceptable and the evidence needed to support
those changes. While EPA published guidance regarding designated use
changes in 1994, 43 percent of states reported that they need
additional guidance on when and how to make designated use changes. EPA
officials from 9 of the 10 EPA regions also acknowledged that states
need better guidance on when designated use changes are appropriate and
the data needed to justify a use change. EPA headquarters officials
told GAO that they also recognize the states‘ need for this kind of
additional guidance and have formed a national working group to address
this need.
Figure 2: Number of Designated Use Changes Reported by Each State from
1997 through 2001:
[See PDF for image]
[End of figure]
Notes: GAO analysis of state data.
The designated use changes reported by the states include both changes
that resulted in more protective uses and changes that resulted in less
protective uses.
EPA regional officials explained to GAO that lack of clarity in the
1994 guidance regarding the type and amount of data that would
constitute an approvable use change has led to varying regional
interpretations and, consequently, inconsistency in approval decisions
made by the regions. EPA headquarters officials also acknowledge this
inconsistency and note that regional inconsistency in approving
proposed designated use changes has been a long-standing concern.
Importantly, 22 states indicated that if the process for changing
designated uses were improved in a way that allowed them to assign more
accurate designated uses, different water bodies would be targeted for
cleanup under the TMDL program. (An additional 16 states said they did
not know whether different water bodies would be slated for TMDL
development.) Most EPA regional officials agreed; officials from 7 of
EPA‘s 10 regional offices reported that different water bodies would be
slated for cleanup if the process of changing designated uses were
improved.
States Need Criteria for Some Pollutants and Assistance in Applying and
Modifying Existing Criteria:
Water quality criteria are the measures by which states determine if
designated uses are being attained, and therefore they play an equally
important role in identifying impaired waters for cleanup. If
nationally recommended criteria do not exist for key pollutants or if
states have difficulty using or modifying existing criteria, states may
not be able to accurately identify water bodies that are not attaining
their designated uses. Several barriers currently prevent states from
using some of the criteria they need to identify impaired water bodies.
Specifically, (1) EPA has not developed criteria documents for some key
pollutants that cause a relatively large share of the nation‘s water
impairments; (2) even when EPA has developed criteria recommendations,
many states have difficulty using some of the criteria to determine
whether their water bodies are meeting standards; and (3) most states
have difficulty modifying the criteria they already have in place to
better meet their needs or to reflect new information.
Regarding the first barrier, while EPA has developed and published
criteria documents for a wide range of pollutants over a period of
decades, it has not yet issued numeric water quality criteria
recommendations for sedimentation and other key pollutants and is
currently in the process of developing nutrient criteria. These
pollutants together cause approximately 50 percent of water quality
impairments nationwide. Many states responding to GAO‘s survey
indicated that these pollutants are among those for which numeric
criteria are most needed. Specifically, when asked to identify the top
three such pollutants, the pollutants most frequently cited were
nutrients, followed by sediment and pathogens. EPA explained that the
delay in developing and publishing key criteria has been due to various
factors, such as the complexity of the criteria and the need for
careful scientific analysis, as well as an essentially flat budget
accompanied by a sharply increased workload.
Regarding the second barrier, even where criteria documents have been
published by EPA, states reported that the criteria cannot always be
used because water quality officials sometimes cannot perform the kind
of monitoring that the criteria documents specify, particularly in
terms of frequency and duration. GAO‘s survey asked states the extent
to which they have been able to establish criteria that can be compared
with reasonably obtainable monitoring data. About one-third reported
that they were able to do so to a ’minor“ extent or less, about one-
third to a ’moderate“ extent, and about one-third to a ’great“ extent.
Mississippi‘s response noted, for example, that the state has adopted
criteria that specify that samples must be collected on four
consecutive days. The state noted, however, that its monitoring and
assessment resources are simply insufficient to monitor at that
frequency. Mississippi is not alone: a 2001 report by the National
Research Council found that there is often a ’fundamental discrepancy
between the criteria used to determine whether a water body is
achieving its designated use and the frequency with which water quality
data are collected.“ To address this discrepancy, regional EPA
officials have suggested that EPA work with the states to develop
alternative methods for determining if water bodies are meeting their
criteria, such as a random sampling approach to identify and prioritize
impaired waters.
Regarding the third barrier, states are required to periodically review
and modify the criteria they already have in place, but 43 states
reported that it is ’somewhat“ to ’very“ difficult to do so. Given
their current fiscal conditions, most state water quality officials
said that they lack the considerable resources (including data,
funding, and expertise) needed to modify their criteria. Significantly,
however, more than half of the states reported that EPA‘s approval
process is a barrier they face when trying to modify their criteria. In
this connection, respondents also noted that EPA regional offices are
inconsistent in the type and amount of data they deem sufficient to
justify a criteria change. Some regional officials told us that this
inconsistency is explained, in part, by staff turnover in the regional
offices. Likewise, a 2000 EPA report found that less tenured staff in
some regional offices often lack the technical experience and skill to
work with the states in determining the ’scientific feasibility“ of
state-proposed criteria modifications. GAO concluded that additional
headquarters guidance and training of its regional water quality
standards staff would help to facilitate meritorious criteria
modifications while protecting against modifications that would result
in environmental harm.
Recommendations:
At the end of chapter 2, GAO makes a number of recommendations to the
EPA Administrator to help ensure that the designated uses in place
under EPA‘s water quality standards program provide a valid basis for
decisions about which of the nation‘s waters should be targeted for
cleanup. Along similar lines, GAO makes recommendations to the
Administrator at the end of chapter 3 to help improve the states‘
abilities to adopt, apply, and modify water quality criteria so that
they, too, are more effective in accurately determining water
impairments.
Agency Comments:
GAO provided EPA with a draft of this report for its review and
comment. EPA‘s January 14, 2003, letter is included in appendix III. To
obtain the states‘ perspectives, GAO also provided the draft report to
ASIWPCA, which in turn provided it to water quality standards experts
from Ohio and South Carolina for their review.
EPA stated that the agency will give serious consideration to the
report‘s recommendations. EPA also offered specific comments dealing
with the report‘s discussion of (1) EPA‘s progress in developing
nutrient and sedimentation criteria, (2) new criteria for nutrients,
sedimentation, and other pollutants causing an increase in the number
of waters identified as impaired by states, (3) states‘ concerns about
developing and adopting nutrient criteria, (4) states‘ need to change
some of their designated uses, and (5) barriers states face to changing
designated uses. These issues, and our responses, are discussed at the
end of chapters 2 and 3. In addition, EPA also provided GAO with a
number of more detailed technical suggestions and clarifications. These
have been incorporated into the report as appropriate.
The water quality standards experts from Ohio and South Carolina who
reviewed the report on behalf of ASIWPCA offered several specific
clarifications and suggestions, all of which were incorporated in the
report. ASIWPCA officials noted that since the reviewers‘ comments were
not considered for endorsement by the association‘s membership, they
should be viewed as informal suggestions to enhance the accuracy and
completeness of the report. GAO also verified specific state
information noted in the draft report with representatives from those
states and made modifications as necessary.
[End of section]
Chapter 1 Introduction:
[End of section]
The Federal Water Pollution Control Act, commonly referred to as the
Clean Water Act, was enacted in 1972. One of its primary goals is to
achieve and maintain water quality for the protection and propagation
of fish, shellfish, and wildlife, and for recreation in and on the
water. As a first step toward achieving this goal, states were required
to adopt water quality standards. These standards identify thresholds
above which water bodies are deemed to be impaired and in need of
cleanup. The act specifies that water quality standards should consist
of designated uses and water quality criteria. Designated uses identify
the purposes for which a given body of water is intended to serve, such
as drinking water, contact recreation (e.g., swimming), and aquatic
life support (e.g., fishing). Water quality criteria are used to
determine whether the water‘s quality is high enough to support these
uses.
In addition to requiring the states to set standards, the act also
requires that states periodically review their standards and revise
them as needed. Periodic review and revision of water quality standards
is important because standards are the foundation of several water
quality programs, such as the TMDL program. For this reason, water
quality standards play a key role in achieving the goals of the Clean
Water Act.
Designated Uses:
States must determine designated uses by considering the use and value
of their water bodies for public water supplies; the protection of
fish, shellfish, and wildlife; and for recreational, agricultural,
industrial, and navigational purposes. In situations where water
quality standards specify designated uses less protective than those
that are presently being attained, the state is required to revise its
standards to reflect the uses actually being attained. In addition,
states must assign designated uses to protect any ’existing use“--
defined by EPA regulations as any use actually attained by a water body
on or after November 28, 1975.
Federal regulations state that, with EPA approval, a state may remove a
designated use that is not an existing use if the state can demonstrate
that it is not feasible to attain that designated use. According to the
language of the regulations, a designated use change may be made for
one of the following reasons:
* naturally occurring pollutant concentrations prevent the attainment
of the use;
* natural, ephemeral, intermittent, or low flow conditions or water
levels prevent the attainment of the use, unless these conditions may
be compensated for by the discharge of sufficient volume of effluent
discharges without violating state water conservation requirements to
enable uses to be met;
* human-caused conditions or sources of pollution prevent the
attainment of the use and cannot be remedied or would cause more
environmental damage to correct than to leave in place;
* dams, diversions, or other types of hydrologic modifications preclude
the attainment of the use, and it is not feasible to restore the water
body to its original condition or to operate such modification in a way
that would result in the attainment of the use;
* physical conditions related to the natural features of the water
body, such as the lack of a proper substrate, cover, flow, depth,
pools, riffles, and the like, unrelated to water quality, preclude
attainment of aquatic life protection uses; or:
* controls more stringent than those required by the act would result
in substantial and widespread economic and social impact.
To demonstrate that a current designated use is not feasible for one of
these reasons, states can conduct a use attainability analysis (UAA). A
UAA is a structured scientific assessment of the factors affecting the
attainment of the use, which may include physical, chemical,
biological, and economic factors as described above. States that want
to remove a designated use, for example, by removing a primary contact
recreation use such as swimming while retaining a secondary contact
recreation use such as boating, must conduct a UAA and include the
results of the analysis in their submittal for a use change to EPA.
States that want to increase the stringency of a designated use are not
required to conduct a UAA.
In addition to changing uses for individual water bodies, states may
also add subcategories of designated uses. For example, a state may
wish to create designated use subcategories that distinguish between
cold and warm water fisheries, as opposed to a single, more general
fishery use. These types of more stratified designated uses are
referred to by the National Academy of Sciences as ’tiered“ designated
uses.
Water Quality Criteria:
In addition to assigning designated uses, states must also adopt water
quality criteria that specify pollutant limits intended to protect
those uses. Criteria can be either numeric or narrative, and they can
include components such as frequency and duration of monitoring needed
to determine if criteria are being met. Numeric criteria specify
quantitative limits on pollutant levels that will protect a designated
use. For example, states might specify a maximum allowable
concentration for iron in order to protect a water body designated for
public water supply or an allowable temperature range to protect a
water body for aquatic life. Narrative criteria are descriptions of
physical or biological conditions that must be met in order for the
water body to be identified as achieving its designated use. For
example, states might have a narrative criterion for all surface waters
stating that waters ’shall be free from floating debris, oil, scum, and
other floating materials entering the waters as a result of human
activity in amounts sufficient to be unsightly or cause degradation.“:
In addition to numerous chemical-specific criteria, states have
sometimes adopted biological, nutrient, and sedimentation criteria, as
well. For example, biological criteria can be developed to describe a
desired aquatic community based on the number and kind of organisms
expected to be present in a water body.[Footnote 2] Nutrient criteria
are a means to protect water bodies from nutrient over-enrichment and
cultural eutrophication--a condition in an aquatic ecosystem where high
nutrient concentrations stimulate the rapid growth of algae. Nutrients,
such as phosphorus and nitrogen, occur in waters naturally as well as
from pollution sources such as wastewater treatment plants and runoff
from agriculture. Sedimentation criteria describe conditions that will
avoid the adverse effects of sediments. Sediments, for example sand and
silt, accumulate through natural processes such as erosion and from
activities such as mining, logging, and urban development.
To assist states, EPA is required to develop, publish, and revise
criteria documents that contain the technical information states need
to develop their water quality criteria. States may adopt EPA‘s
nationally recommended criteria, modify nationally recommended
criteria to reflect site-specific conditions, or adopt criteria based
on other scientifically defensible methods.
Standards Review and Revision:
Under the Clean Water Act, states are required to review their water
quality standards at least every 3 years, make revisions as needed, and
submit any changes to EPA for review and approval (or
disapproval).[Footnote 3] Once states submit their proposals, EPA has
60 days to approve or 90 days to disapprove of the standards change. In
its review of state changes, EPA must determine whether:
* the state has adopted designated uses which are consistent with the
requirements of the Clean Water Act,
* the state has adopted criteria that protect the designated uses,
* the state has followed its legal procedures for revising or adopting
standards,
* the state standards are based upon appropriate technical and
scientific data and analyses, and:
* the state submission meets the requirements of the regulations.
If a state has met these conditions, EPA will generally approve the
standards change.[Footnote 4] If a state has not met these conditions,
EPA must disapprove the change, specify what the state needs to do to
correct the problem, and promulgate a new or revised standard when
necessary to meet the requirements of the act if the state fails to
revise its standards to address EPA‘s concerns. Historically, states
could implement new standards pending a decision by EPA, but a recent
court decision[Footnote 5] and subsequent regulations, commonly
referred to as the Alaska rule, declared that water quality standards
are not effective until approved by EPA.
Importance of Accurate Water Quality Standards in Identifying Polluted
Waters:
States use water quality standards as the benchmark against which they
identify water quality problems caused by a variety of factors, such as
improperly treated wastewater discharges; runoff or discharges from
active or abandoned mining sites; sediment, fertilizers, and chemicals
from agricultural areas; and erosion of stream banks caused by improper
grazing practices. Water quality standards also support other programs
aimed at achieving and maintaining protective water quality conditions.
For example, water quality standards support (1) the National Pollution
Discharge Elimination System (NPDES) program for point source
discharges; (2) efforts that document current water quality conditions,
including the list identifying impaired waters for which TMDLs are
required; (3) water quality certifications for activities that may
affect water quality and require a federal license or permit; and (4)
management plans for the control of nonpoint sources
of pollution.[Footnote 6]
Of perhaps greatest consequence in the past several years is the
critical role that water quality standards play in determinations made
in the TMDL program. As figure 3 illustrates, states‘ water quality
standards play a key role in helping states identify which waters are
in need of cleanup. States generally determine if a water body‘s
designated use has been achieved by comparing monitoring data with
applicable state water quality criteria. If the water body fails to
meet the applicable standards, the state is required to list the water
as impaired, calculate a pollution budget under the TMDL program that
specifies what reductions are needed to achieve the standards, and
eventually implement a cleanup plan. Because of this link between the
water quality standards and TMDL programs, we and other organizations
have identified concerns about the standards program. Our January 2002
report, Water Quality: Inconsistent State Approaches Complicate
Nation‘s Efforts to Identify Its Most Polluted Waters (GAO-02-186),
addressed, in part, inconsistencies among the states in assigning
designated uses to water bodies as well as in developing criteria to
protect those uses. In a similar vein, the National Academy of
Sciences‘ National Research Council released a report in June 2001 that
concluded, among other things, that standards are the foundation upon
which the entire TMDL program rests, and states need to develop
appropriate water quality standards prior to assessing water bodies and
developing TMDLs.[Footnote 7]
Figure 3: Water Quality Standards as the Basis for Cleanup Decisions:
[See PDF for image]
[End of figure]
Objectives, Scope, and Methodology:
As agreed with the Chairman, Subcommittee on Water Resources and
Environment, House Committee on Transportation and Infrastructure, the
objectives of this review were to determine the extent to which (1)
states are changing designated uses when necessary and EPA is assisting
the states toward that end, and (2) EPA is updating its criteria
documents and assisting states in establishing criteria that can be
compared with reasonably obtainable monitoring data.
To obtain information on both objectives, we conducted a Web-based
survey of water quality standards officials from the 50 states and the
District of Columbia. Our survey asked state officials to provide
information on the number of designated uses that have been changed in
their state, as well as barriers officials face when making use
changes. We also asked the officials to provide information on their
state‘s water quality criteria needs and barriers they face when
modifying criteria. We pretested our survey with state officials in
Pennsylvania and Virginia and also obtained comments on the draft
survey during a teleconference call with officials from 27 states and
ASIWPCA. We received survey responses from all 50 states and the
District of Columbia. We also provided our survey to five river basin
commissions and received responses to the questions applicable to these
organizations from three of those commissions.
To obtain EPA‘s perspective, we interviewed officials in EPA
headquarters and EPA‘s 10 regional offices. During our interviews with
officials from the regional offices, we asked the officials to provide
information on program operations, policies, and guidance. We also
obtained information on regional offices‘ interactions with the states
during situations in which the state proposed to change designated uses
and modify criteria.
To obtain more detailed information on the activities and limitations
affecting state agencies‘ efforts to refine designated uses and
establish appropriate criteria, we also visited water quality staff in
three states--Kansas, Montana, and Ohio. In selecting these states, we
considered a variety of factors, most notably their experiences in
changing designated uses and establishing criteria and the diversity of
their geophysical characteristics. In the states, we interviewed state
water quality officials as well as representatives of industry and
environmental groups. In addition, we accompanied Kansas water quality
officials as they conducted a use attainability analysis and Ohio water
quality officials as they demonstrated a biological assessment of a
water body.
To obtain the perspective of the primary national organization
representing state and interstate water quality officials, we
interviewed members and staff of ASIWPCA. To obtain additional
perspectives of key interest groups, we also interviewed
representatives from the national offices of the American Farm Bureau
Federation, the American Forest and Paper Association, and
Earthjustice.
We conducted our work from February through December 2002 in accordance
with generally accepted government auditing standards. GAO contacts and
staff acknowledgments are listed in appendix IV.
[End of section]
Chapter 2 States‘ Practices in Changing Designated Uses Vary Widely:
[End of section]
Appropriate designated uses are critical because they play a key role
in states‘ determinations as to whether their waters are impaired and
therefore need to be cleaned up. Nearly all states believe that some
portion of their water bodies have over-or under-protective designated
uses, or both. However, states vary considerably in the extent to which
they have made changes to those designated uses. Nearly all states
reported that they face barriers to making necessary changes to their
designated uses, with many noting that a lack of resources and data
limits the number of designated use changes they attempt. Compounding
these problems is uncertainty states sometimes face about the
circumstances in which use changes are acceptable to EPA and the
evidence needed to support those changes. A key contributor to this
uncertainty, in turn, is the absence of sufficient EPA guidance to help
states understand when it is appropriate to pursue a designated use
change and what data is required to successfully justify the change.
Improved guidance would also help clarify for EPA‘s regional offices
the circumstances under which state-proposed use changes should and
should not be approved. Significantly, many states indicated that if
improvements were made to the process of changing designated uses, so
that they could more accurately assign those uses, they would likely
identify different waters for cleanup under the TMDL program.
States Thus Far Report Wide Variation in the Extent to Which They
Change Designated Uses:
We asked the states to report the total number of designated use
changes they adopted from 1997 through 2001. Their responses indicated
that the extent to which states have made use changes varies widely. As
figure 4 illustrates, 31 states and the District of Columbia reported
that they made somewhere between no designated use changes to up to 20
use changes between 1997 and 2001, 12 states reported that they made
between 21 and 100 use changes, and 7 states made between 101 and 1,127
use changes. Overall, the states identified approximately 3,900 use
changes that were made during this period.
Figure 4: Number of Designated Use Changes Reported by Each State from
1997 through 2001:
[See PDF for image]
[End of figure]
Notes: GAO analysis of state data.
The designated use changes reported by the states include both changes
that resulted
in more protective uses and changes that resulted in less protective
uses.
Future Use Changes May Dwarf Those Made to Date:
Regardless of the number of use changes states have made to date,
nearly all believe that future use changes are needed. As figure 5
illustrates, 28 states reported that between 1 to 20 percent of their
water bodies need use changes, 11 states reported that between 21 and
50 percent of their water bodies need use changes, and 5 states
reported that more than 50 percent of their water bodies need use
changes. When examined more closely, these percentages indicate that
future use changes may dwarf the few thousand made between 1997 and
2001. For example, Missouri‘s response noted that while the state did
not make any use changes from 1997 through 2001, approximately 25
percent of the state‘s water bodies need changes to their recreational
designated uses, and more changes might be needed for other use
categories, as well. Similarly, Oregon‘s response noted that while no
use changes were made from 1997 through 2001, the state needs
designated use changes in more than 90 percent of its basins. The
prospect of a significant increase in the number of designated use
changes was also suggested by an internal 2000 EPA report assessing the
water quality standards development and review process. In that report,
EPA noted that the number of water quality standards submissions are
expected to increase significantly, due in part to use designations
reflecting more and better scientific information and greater focus on
ecological factors.[Footnote 8]
Figure 5: Number of States Reporting Various Percentages of Their Water
Bodies Needing Designated Use Changes:
[See PDF for image]
[End of figure]
Note: GAO analysis of state data.
The expected increase in designated use changes to be proposed by many
states is explained, in part, by how states originally designated the
uses of their waters. Many state officials reported that, as a result
of time constraints and a lack of data, their state set designated uses
broadly. For example, Oregon‘s response explained that the state‘s
designated uses were assigned very broadly by entire basin or subbasin,
and most freshwaters are designated for all uses. Missouri‘s response
explained that ’Due to the paucity of data and time frame
considerations [at the time uses were assigned]—“ many of the state‘s
waters are not appropriately designated. State water quality officials
estimated that for recreational uses alone, 25 percent of the state‘s
water bodies are misclassified. Utah‘s response noted that because of
concerns that grant funds would be withheld if designated uses were not
assigned quickly, state water quality and wildlife officials set
designated uses over a 4-to 5-day period using ’best professional
judgment.“:
In the same vein, many states found that as they collected more data in
ensuing years, the new data provided compelling evidence that their
uses were either under-or over-protective. In the case of over-
protective designated uses, some states found, for example, that
natural physical conditions unrelated to water quality (such as cover,
flow, or depth) prevent attainment of the designated use. For example,
as Kansas officials have collected additional data on their water
bodies, they have identified instances where the attainment of a
recreation use was not feasible due to natural physical conditions.
They cited the example of Lohff Creek, which has naturally low flow
conditions that prevent it from attaining its recreation use--a
condition that state officials recognized only after they actually
monitored the creek in 2001. Similarly, some states found that man-made
hydrologic modifications, such as dams and diversions, sometimes
prevent the attainment of a designated use and that in such instances
it may not be feasible to restore or modify the water body. In other
cases, naturally occurring pollutants, such as arsenic and mercury,
prevent attainment of the designated use.
Conversely, some states reported that a portion of their designated
uses were not protective enough. For example, water quality officials
from Kansas explained that some of the water bodies in their state that
have a designated use of secondary contact recreation (i.e., wading)
should actually have a more protective primary contact recreation use
(i.e., swimming) because the public has easy access to those water
bodies. They cited the example of Huntress Creek, which flows through a
city park, thereby allowing the public unhindered access. South
Carolina‘s response noted that the state changed the designated uses of
some of its water bodies to be more protective of trout waters and the
outstanding resource waters of the state. Iowa‘s and Kentucky‘s
responses noted that 96 and 87 percent, respectively, of their
designated use changes made between 1997 and 2001 resulted in more
protective uses. An Iowa water quality official explained that Iowa has
been changing broad designated use categories into more specifically
defined categories, and that these changes have resulted in many water
bodies being assigned more protective uses.
In addition, some states have recognized a need to change designated
uses based on interstate inconsistencies they identified. For example,
a former Kansas water quality official (currently with the Kansas Farm
Bureau) explained that a part of the Missouri River that forms a
portion of the state boundary between Kansas and Missouri has a primary
recreation use in Kansas and a secondary recreation use in Missouri.
Because of this discrepancy in the uses between the states, Missouri
can allow discharges at levels such that the identical stretch of water
is not impaired in Missouri but is impaired in Kansas. Similarly, the
Salmon Falls River, an interstate water forming a portion of the
boundary between Maine and New Hampshire, had inconsistent designated
uses that resulted in an impairment designation by Maine but not by New
Hampshire. Likewise, New York and Connecticut discovered that their
dissolved oxygen standards for Long Island Sound (both designated uses
and criteria) were inconsistent.
Some states are also seeking to develop more subcategories of
designated uses to make them more precise and reflective of their
waters‘ actual uses. Developing these subcategories of uses has the
potential to result in more protective uses in some cases, and less
protective uses in others. For example, Montana water quality officials
noted that all streams with trout fall under the same use
classification, but that not all trout have the same habitat
requirements. The officials explained that without subcategories of
uses, they cannot distinguish between high-quality, award-winning trout
fisheries and lower-quality fisheries. Similarly, a representative from
the Environmental Law and Policy Center of the Midwest explained that
for water bodies that have a general designated use of fishing, the
fish species present has sometimes changed over time due to increased
pollution, yet the water bodies were still attaining their uses. On the
contrary, states that currently have broadly defined designated uses
that are protective of the most sensitive species might develop
subcategories that are less protective for areas where those species
are not present.
Citing circumstances such as these, the 2001 National Research Council
report discussed earlier concluded that developing subcategories of
designated uses is an essential step in setting appropriate water
quality standards and that designated uses need to be more detailed
than broad ’recreational support“ and ’aquatic life support“
categories. EPA has since developed a tiered aquatic life uses working
group that has been tasked with developing guidance for creating
aquatic life use subcategories.
Lack of Clear Guidance Complicates States‘ Efforts to Make
Defensible Designated Use Changes:
States have latitude under the Clean Water Act in determining whether
their designated uses need to be changed. This latitude, along with
different state philosophies, helps to explain, in part, their behavior
thus far in making such changes. However, our survey shows that states
have not made all of the use changes they believe are needed. According
to the states, some reasons needed designated use changes have not been
made include a lack of resources and monitoring data and resistance
from interest groups and affected parties. Importantly, another key
reason some of the needed use changes have not been made is states‘
uncertainty over the circumstances in which use changes are acceptable
to EPA and the evidence needed to support these changes. EPA
headquarters and regional officials acknowledge that states are
uncertain about how to change their designated uses and believe better
guidance would serve to alleviate some of the confusion.
Uncertainty Regarding UAAs:
EPA regulations specify that in order to remove a designated use,
states must provide a reason as to why a use change is needed and
demonstrate to EPA that the current designated use is unattainable. To
do this, states are required to conduct a UAA. According to EPA, a UAA
is a structured, scientific assessment of the physical, chemical,
biological, and economic factors affecting the attainment of a use.
UAAs vary considerably in their scope and complexity and in the time
and cost required to complete them. They can range from 15-minute
evaluations that are recorded on a single worksheet to more complex
analyses that might require years to complete. A Virginia water quality
official explained, for example, that some of the state‘s UAAs are
simple exercises using available data, while others require more
detailed analysis involving site visits, monitoring, and lab work. In
their responses to our survey, states reported that UAAs they conducted
in the past 5 years cost anywhere from $100 to $300,000.
In 1994, as noted in chapter 1, EPA published guidance regarding use
changes that specifies the reasons why states may remove a designated
use.[Footnote 9] Nonetheless, our survey shows that many states are
still uncertain as to when to conduct UAAs, or about the type or amount
of data they need to provide to EPA to justify their proposed use
changes. Forty-three percent of states reported that they need
additional clarifying UAA guidance. Among them, Oregon‘s response
explained that water quality officials need guidance on whether a UAA
is required to add subcategories of use for particular fish species.
Virginia‘s response indicated that the state needs guidance as to what
reasons can justify recreational use changes, noting further that state
water quality officials would like to see examples of UAAs conducted in
other states. Louisiana‘s response similarly called for specific
guidance on what type of and how much data are required for UAAs in
order for EPA to approve a designated use change with less
protective criteria.
To facilitate the process of making necessary use changes, as of summer
2001, 18 states had negotiated UAA protocols with their EPA regional
offices to assist in achieving a common understanding of the
information needed to justify a use change. Another 6 states were
developing protocols at that time.[Footnote 10] According to EPA
officials, such protocols facilitate the UAA process by
(1) standardizing data collection and analysis procedures,
(2) outlining the bases on which the state evaluates the information,
and (3) providing a consistent format and content for UAA results.
Seventy-eight percent of the states with UAA protocols made designated
use changes from 1997 to 2001, compared to 45 percent of the states
without UAA protocols.
EPA Acknowledges State Uncertainty Regarding UAAs:
EPA regional officials acknowledged the uncertainty states frequently
experience regarding the scope, content, and other key attributes
required for a given UAA. Officials from 9 of the 10 EPA regions
reported that states need better guidance on when UAAs are needed and
the data needed to justify a use change. Chicago regional officials,
for example, explained that the states in their region need
clarification on when recreational use changes are appropriate and the
data needed to support recreational use changes. Similarly, an official
from the San Francisco regional office reported that EPA needs to
develop national UAA guidance that details how to conduct UAAs and
suggested that headquarters provide a national clearinghouse of
approved use changes to provide examples for states and regions of what
is considered sufficient justification for a use change. In an EPA
Office of Water draft strategy developed for the water quality
standards program, EPA recognized that a clearinghouse for states and
EPA to share information on policies, guidance, criteria, and
implementation approaches would be useful to the states. The strategy
specifies that EPA‘s Office of Science and Technology will conduct a
feasibility study to identify ways to provide a cost-effective
clearinghouse; EPA plans to conduct the feasibility study in 2004.
EPA headquarters officials have acknowledged states‘ need for
additional UAA guidance and have formed a national UAA working group
for this purpose. Tasked with developing draft guidance for categories
of designated uses, the group plans to have draft guidance for
recreational uses for public comment in late spring 2003 and to
finalize the guidance by late summer 2003. EPA also intends to start
drafting guidance for aquatic life uses in spring 2003, with draft
guidance completed sometime in 2004.
EPA Regional Approaches Concerning States‘ Designated Use Changes Are
Inconsistent:
EPA‘s regional offices play an important role, both in assisting states
in their efforts to ensure that their waters are properly designated
and ultimately in either approving or disapproving proposed designated
use changes. We found that regional assistance to the states varies but
that much of this variation reflects the fact that some states request
more assistance than others. Of greater concern to some states than the
amount of assistance provided by EPA are the different ’burdens of
proof“ applied by different regional offices as to when a UAA is needed
and how much data is sufficient to justify a use change.
In response to a specific question posed in the letter requesting this
study, we asked states about the extent of EPA assistance they have
received in their efforts to evaluate designated uses for possible
changes. Most of the states that have conducted UAAs characterized the
level of assistance they received from their EPA regional offices as
’minor,“ ’very minor,“ or none at all. EPA officials explained that
they provide assistance to states that are conducting UAAs when
contacted by the states, and they encourage states to involve them in
the process early and often. Officials from the Boston regional office
noted that they have only received one request to assist with a UAA and
that they worked hand in hand with the state when asked. Officials from
the San Francisco regional office explained that it is important for
states to contact EPA early in the process of conducting a UAA because
EPA can help identify problem areas in advance. The officials noted
that any time a state or regulated community member has conducted a
UAA, they have come to the regional EPA office for assistance.
States‘ responses, however, cited a need for a different kind of
assistance from EPA than guidance on how to conduct a UAA; rather, many
said they would like a sense of predictability regarding the data they
need to justify to EPA a designated use change. Some states‘ water
quality officials reported that the data needed to justify a use change
varies among EPA regions, and, in some regions, the requirements serve
as a barrier to making use changes. Louisiana‘s response noted that the
state would like EPA to agree on what type of and how much data are
required in a UAA to substantiate a use change and added that it ’would
like to see the same …rules‘ apply across EPA regions. In our
experience, states in other regions are not subject to the same
requirements for UAAs as we have been.“ Similarly, Iowa‘s response
indicated that the approaches used to modify standards, including UAAs,
vary considerably among the states and that EPA is often seen as an
impediment to adopting better designated uses. Likewise, Rhode Island‘s
response noted that EPA guidance on UAAs should be more uniformly
applied by all the EPA regional offices and explained that the state‘s
most significant concern is that its EPA regional staff require a much
greater burden of proof than EPA guidance suggests or than other
regions require.
Existing EPA guidance recognizes that some inconsistency in the amount
and type of data required to justify a use change is legitimate given
that UAAs vary in scope and complexity. Some EPA headquarters and
regional officials, however, acknowledge inconsistency among the
regions, based on varying interpretations of the regulations, in the
type and amount of data they require of states making use changes. One
EPA regional official expressed the view that the 10 regions have 10
different interpretations of when a UAA is appropriate and what data
are needed to justify a use change. The official further explained that
national UAA guidance that provides decision criteria is needed so that
there can be greater consistency in use change decisions across
regions. Water officials from several other regions also acknowledged
the inconsistency and explained that the inconsistency is due to the
lack of national guidance. EPA headquarters officials concurred that
regional offices require different types and amounts of data to justify
a use change and noted that inconsistency in EPA regional approaches
has been a long-standing concern. The officials explained that EPA is
trying to reduce inconsistencies while maintaining the flexibility
needed to meet region-specific conditions by holding regular work group
meetings and conference calls between the regional offices and
headquarters.
Different Water Bodies Would Be Slated for Cleanup If Improvements Were
Made:
Appropriate designated uses play a key role in states‘ determinations
of impaired water bodies. Without them, states cannot make well-
informed cleanup decisions under the TMDL program, and states risk
focusing resources on the wrong water bodies and/or exposing their
citizens to health and environmental risks. Given the barriers to
changing designated uses that states face, some EPA regional officials
reported that some states are opting to develop ’bad“ TMDLs rather than
make needed use changes. Some states believe that if the process of
changing designated uses were improved, it would result in better
decisions as to which water bodies need to be cleaned up. As figure 6
illustrates, 22 states reported that they believe different water
bodies would be identified for TMDL development in their states, while
another 16 reported that they did not know whether different water
bodies would be slated for TMDL development. Rhode Island‘s response,
for example, noted that if the process of changing uses were improved,
waters impaired by natural causes would no longer be targeted for TMDL
development. Nebraska‘s response indicated that if the state were able
to refine recreational uses to exclude high flow events, many of its
waters slated for cleanup would no longer require TMDLs.
Figure 6: States‘ Responses to Whether Different Water Bodies Would Be
Slated for Cleanup if the Process for Changing Designated Uses Were
Improved:
[See PDF for image]
[End of figure]
Note: GAO analysis of state data.
Many of the regional EPA officials we interviewed agreed with this
assessment. Overall, officials from 7 of 10 regional EPA offices
reported that different water bodies would probably be identified as
requiring TMDLs if the process of changing designated uses were
improved.[Footnote 11] One regional official reflected the views of
others in explaining that while some additional water bodies presently
not listed as impaired would be identified as requiring a TMDL, others
currently listed as impaired might be subsequently delisted.
Conclusions:
The accuracy of designated uses is critically important, given their
central role in determining whether or not waters are to be targeted
for cleanup. Inaccurately identified uses may result in either wasted
resources caused by the ’overprotecting“ of some waters, or
unacceptable environmental consequences caused by the
’underprotecting“ of others.
Many thousands of waters nationwide are currently assigned designated
uses that state water quality officials believe are inappropriate.
However, based on the states‘ relatively limited experience to date in
making use changes, the challenge of evaluating this much larger number
of waters for future changes will be particularly complicated.
As they approach this task, both states and their EPA regional offices
would benefit from additional guidance that clarifies the circumstances
in which designated use changes are appropriate and the type and amount
of data a state needs to justify such a change to EPA. Indeed, the
states and regions that have developed protocols for this purpose have,
as a group, been better able to agree upon such changes than those
without protocols. EPA officials acknowledge the value of designated
use protocols. They also acknowledge that clearer national guidance
would serve a similar purpose and, at the same time, provide a more
consistent framework for use changes among states and regions.
EPA has plans to explore the feasibility of establishing a
clearinghouse that provides states and regional offices with examples
of approved use changes and the justification for those changes. A
clearinghouse would also allow EPA and the states to share information
on policies, guidance, criteria, and implementation approaches. EPA
officials said they are currently planning to conduct the feasibility
study in 2004 to identify cost-effective ways to provide this
clearinghouse.
Recommendations:
To help ensure that the designated uses in place under EPA‘s water
quality standards program provide a valid basis for decisions on which
of the nation‘s waters should be targeted for cleanup, we recommend
that the Administrator of EPA:
* provide additional guidance on designated use changes to better
clarify for the states and regional offices when a use change is
appropriate, what data are needed to justify the change, and how to
establish subcategories of uses; and:
* follow through on the agency‘s plans to assess the feasibility of
establishing a clearinghouse of approved designated use changes
by 2004.
Agency Comments and Our Evaluation:
EPA shares our concern that waters are inappropriately slated for TMDL
development as a result of inappropriate use designations. The agency
notes that it intends to provide guidance to states on how to change
their uses so that states can establish a more refined set of uses that
will better characterize the states‘ water quality goals for specific
waters. The agency also notes, however, that current designated uses
are not necessarily ’incorrect,“ explaining that waters may be listed
as impaired inappropriately because the designated uses applying to
those waters are not specific enough. We agree with EPA that some of
the waters inappropriately slated for TMDL development are the result
of designated uses that are not specific enough and need further
refinement. However, some state water quality officials also told us
that some waters are listed inappropriately because the designated uses
were, in fact, incorrect. For example, a number of state officials
explained that some waters are listed inappropriately because the
designated uses are simply inconsistent with the waters‘ conditions.
EPA points out that, like the non-EPA related barriers to making
necessary criteria changes cited in chapter 3, similar barriers apply
to the designated uses discussion in chapter 2. Specifically, EPA‘s
letter cites ’burdensome state rulemaking processes, public opposition
to downgrades, and resource shortages that make it difficult for states
to invest in necessary monitoring and assessment programs.“ While the
draft report had acknowledged several of these non-EPA barriers (e.g.,
scarcity of resources and monitoring data and resistance from interest
groups and affected parties) in its executive summary, we have added
these barriers in chapter 2.
[End of section]
Chapter 3 States Need Criteria for Some Pollutants and Assistance in
Applying and Modifying Existing Criteria:
[End of section]
Because water quality criteria are the measures by which states
determine if designated uses are being attained, they play a role as
important as designated uses in states‘ decisions regarding the
identification and cleanup of impaired waters. If nationally
recommended criteria do not exist for key pollutants or if states have
difficulty using or modifying existing criteria, states may not be able
to accurately identify water bodies that are not attaining designated
uses. Therefore, EPA is required to periodically publish and revise
criteria documents that contain the technical data that help the states
adopt pollutant thresholds.
As required, EPA has developed and published criteria for a wide range
of pollutants. According to EPA data, however, a relatively large share
of pollutants causing water quality problems nationwide are pollutants
for which EPA either has not yet developed national numeric criteria
(e.g., sedimentation and other nonpoint source pollutants) or is in the
process of developing numeric criteria (e.g., nutrients). In addition,
(1) many states have had difficulty using EPA‘s criteria documents to
establish state water quality criteria that can be compared with
reasonably obtainable monitoring data and (2) most states have
difficulty modifying the criteria they already have in place to better
meet their needs or reflect new information. As was the case with
designated uses discussed in the previous chapter, many states reported
that if the process of making necessary changes to criteria were
improved, different waters would be slated for cleanup.
Key Criteria Documents Have Not Been Developed by EPA:
Under the Clean Water Act, EPA is required to develop and publish, and
from time to time revise, water quality criteria that accurately
reflect the latest scientific knowledge. As of May 2002, EPA had issued
national numeric criteria for 165 pollutants, of which 101 are for
priority toxic pollutants.[Footnote 12] Yet as large as this number of
pollutants may be, approximately 50 percent of water quality
impairments nationwide concern pollutants for which there are no
national numeric water quality criteria. Sedimentation is a key
pollutant for which numeric water quality criteria need to be
developed. In addition, nutrient criteria are currently being
developed, and pathogen criteria need to be revised. Together,
sediments, nutrients, and pathogens are responsible for about 40
percent of impairments nationwide. (See fig. 7.) Many states responding
to our survey indicated that these pollutants are among those for which
numeric criteria are most needed. Specifically, when asked to identify
the top three such pollutants, the pollutants most frequently cited
were nutrients, followed by sediment and pathogens.
Figure 7: Percent of Impairments Nationwide Caused by Various
Pollutants:
[See PDF for image]
[End of figure]
Note: GAO analysis of EPA data.
Recognizing the growing importance of pathogens in accounting for the
nation‘s impaired waters, EPA developed numeric criteria for pathogens
in 1986--although states are having difficulty using these criteria and
are awaiting additional EPA guidance. EPA is also currently working
with states to develop nutrient criteria and has entered into a
research phase for sedimentation. The agency is asking states to make
’substantial progress“ in adopting nutrient criteria by the end of
2004. EPA issued guidance in January 2001 to help the regions and
states do this. While EPA has published final ’eco-regional“ nutrient
criteria recommendations for all freshwaters, excluding wetlands, some
state water quality officials told us of continuing concerns over their
ability to adapt the recommended numeric nutrient criteria to take into
account local watershed conditions. If the recommended criteria are not
adapted, some states expressed concern that the criteria may not be
realistic for state implementation. For example, a water quality
official from Iowa explained that the discussion in his region has thus
far been dominated by individuals who will not be responsible for
actually using the criteria and that the criteria suggested appear to
represent ideal conditions. Water quality officials from Illinois and
Kentucky also expressed concern with the current nutrient criteria,
noting that eco-regions are too broad in scope and that criteria will
need to be adapted by the states to be meaningful.
EPA has made substantially less progress in developing sedimentation
criteria. The agency plans to have a strategy for developing
sedimentation criteria by September 2003. At that point, EPA officials
plan to consult with their Science Advisory Board regarding the
strategy. As of January 2003, the agency does not have a prospective
date for developing sedimentation criteria. EPA noted that in the past
the agency has issued several technical papers and provided some
guidance to states regarding sedimentation.
EPA explained that the delay in developing and publishing key criteria
has been due to various factors, such as the complexity of the criteria
and the need for careful scientific analysis, as well as an essentially
flat budget accompanied by a sharply increased workload. In response to
our request for specific budget data, the officials noted that since
1992 the water quality standards budget has fluctuated between $16.2
and $20.3 million, with the fiscal year 2002 budget at approximately
$18.8 million. (See app. I.) During the same time, EPA officials noted
that their workloads have increased because of several external
factors, including increased litigation and new legislative
requirements. For example, as of August 2002, EPA had 11 pending cases
and nine notices of intent to file suit that affect the water quality
standards program. The officials also explained that for several
decades EPA and the states focused more on point source discharges of
pollution, which can be regulated easily through permits, than on
nonpoint sources, which are more difficult to regulate. In recent
years, as nonpoint sources of pollution have become more of a priority,
there has been an increasing focus on pollutants from such sources.
Many States Cannot Reasonably Monitor to Determine if Criteria Are
Being Met:
Even in cases where criteria have been published by EPA, states
reported that the criteria cannot always be effectively used because
water quality officials sometimes cannot perform the kind of
monitoring, as specified in the criteria documents, that must be used
to ascertain whether the water body is meeting standards. While most
states face long-standing challenges in collecting a sufficient amount
of monitoring data to assess all of their water bodies, states reported
that some criteria cannot be used even when reasonably obtainable
monitoring data is collected. These findings confirm those of the 2001
National Research Council report cited earlier, which underscored the
importance of criteria that can be reasonably compared with monitoring
data but which also found that criteria often lack this
key characteristic.
Our survey asked states to report on the extent to which they have been
able to establish criteria that they can use to determine whether their
water bodies are attaining their designated uses. As figure 8 shows,
about one-third reported that they were able to do so to a ’minor“
extent or less, about one-third to a ’moderate“ extent, and about one-
third to a ’great“ extent. Some states explained that the required
frequency of monitoring posed a problem. For example, while Connecticut
was one of the states that reported that it has been able to establish
its criteria in this way to a ’moderate“ extent, its response also
explained that some criteria include ’never exceed“ values that suggest
the need for continuous monitoring--a monitoring regimen that requires
resources the state ’simply does not have.“ Similarly, Mississippi‘s
response noted that the state has adopted some water quality criteria
that specify that samples must be collected on four consecutive days.
The response noted, however, that the state‘s monitoring and assessment
resources are simply insufficient to monitor at that frequency.
Figure 8: States‘ Responses on the Extent to Which Their Criteria Can
Be Used to Determine Whether Their Water Bodies Are Impaired:
[See PDF for image]
[End of figure]
Note: GAO analysis of state data.
Some EPA regional officials said they generally understand the states‘
concerns and suggested that EPA should assist states by developing
scientifically defensible methods for implementing criteria that
account for monitoring constraints. Regional officials in Boston
explained that they are currently assisting the states in their region
to use probabilistic sampling techniques for assessing many water
bodies. Similarly, Chicago and Dallas regional officials suggested the
use of a random sample approach to identify and prioritize impaired
waters. San Francisco regional officials recognized that technology has
not always kept pace with states‘ monitoring needs, and thus they have
promoted a ’weight of evidence“ approach to making impairment decisions
in which chemical, toxicity, and biological data are assessed
collectively, rather than independently, to determine the overall state
of the water body. New York regional officials stated that national EPA
guidance for criteria implementation is needed because states will not
use criteria unless they have a clear understanding of how to implement
them.
The National Research Council‘s 2001 report underscored the importance
of having water quality standards that can be compared to reasonably
obtainable monitoring data, but echoed the concerns of many states that
standards too often lack this key characteristic. The report explained
that ’In many states, there is a fundamental discrepancy between the
criteria that have been chosen to determine whether a water body is
achieving its designated use and the frequency with which water quality
data are collected.“ The report further noted that compliance with some
criteria is virtually impossible, leading to complications within the
TMDL program.
States Report Difficulty in Modifying Criteria:
If a state believes that it can improve its criteria, it has the option
of modifying them--with EPA‘s approval. In fact, states are required to
review and modify their criteria periodically--a process involving
activities from data collection and assessment through EPA approval or
disapproval. A state might modify a criterion, for example, if new
information becomes available that better reflects local variations in
pollutant chemistry and corresponding biological effects, or because
newer and more direct measures of designated use protection are
identified.
As figure 9 illustrates, 43 states responded that it was ’somewhat“ to
’very“ difficult to modify criteria. Not surprisingly, a vast majority
of states reported that a lack of resources (including funding, data,
and staff expertise) complicates this task. Nevada‘s response, for
example, explained that, like many states, it typically relies on EPA‘s
recommended criteria because of limited experience in developing
criteria as well as limited resources; in many instances, developing
site-specific criteria would better reflect unique conditions, allowing
for better protection of designated uses. Ohio‘s response cited the
need to use a formal rulemaking process, which can be both time-and
resource-intensive.
Figure 9: States Reporting the Ease or Difficulty of Modifying Water
Quality Criteria:
[See PDF for image]
[End of figure]
Note: GAO analysis of state data.
Many states also said that concern over the public‘s perception of a
proposal to modify criteria affects their ability and inclination to do
so. States receive comments concerning proposed changes from a wide
range of interested parties, from the regulated community (e.g., the
American Farm Bureau, power companies, and wastewater treatment plants)
to the environmental community and other citizen groups. As Wisconsin‘s
response noted, resistance to criteria changes tends to come from
whichever side believes its interests are adversely affected--the
regulated community in cases where the proposed criteria become more
stringent and the environmental community when they become less
stringent. On the other hand, Ohio water quality officials, as well as
members of environmental organizations and the regulated community,
noted that their state officials‘ use of science to justify criteria
changes makes agreement between the state and the public more likely.
Members of the regulated community have been able to use the state‘s
methodology for making criteria changes in order to initiate some
criteria changes and provide the data to justify those changes.
Likewise, members of a state environmental organization noted that they
support the state‘s methodology because it is science-based and allows
for greater objectivity in decision making.
Uncertainty over EPA approval process a key barrier:
While it is not surprising that most states cited resource shortages
and the public‘s response as factors that affect their ability to
modify criteria, more than half the states also reported that the EPA
approval process is a factor. Some states noted that the EPA approval
process leaves them unclear as to whether a resource-intensive criteria
modification process may be worth pursuing. States also noted
differences among the EPA regional offices and with EPA‘s headquarters
office as to what they will accept as ’reasonable proof“ to justify a
criteria modification. Kansas officials explained that EPA headquarters
officials state there is a great deal of flexibility afforded to states
in developing their individual state water quality standards, but EPA
regional officials appear more reluctant to allow states to utilize
that flexibility. State officials postulated that because of staff
turnover, regional staff are not there long enough to have much
confidence as to what is reasonable. A Kansas Farm Bureau employee who
formerly worked for the Kansas Department of Health and Environment
asserted that Region 7 officials were far less experienced than Region
8 officials and that it was therefore much more difficult to negotiate
criteria changes with Region 7 staff.
Some EPA regional and headquarters officials acknowledge that a lack of
staff expertise has sometimes had an effect on criteria modification
decisions. One regional EPA official told GAO that regional staff
tenure and experience has affected how easily states are able to modify
their criteria. In addition, a recent report by EPA‘s Office of Science
and Technology acknowledged the staff turnover issue and its
effects.[Footnote 13] The report notes that high staff turnover at
headquarters as well as in the regions has, at times, resulted in
inexperienced staff being placed in positions of authority over water
quality standards decisions. The report further notes that these staff
sometimes lack the technical competency to work with the states on
determining the ’scientific feasibility“ of state criteria
modifications. While the report adds that EPA is implementing
2000 guidelines for national coordination on reviewing state water
quality standards actions, states continue to report inconsistencies.
Regional officials have acknowledged this report‘s conclusion that
states‘ uncertainty over what constitutes an approvable modification
has sometimes complicated their efforts to modify their criteria. An
official from the San Francisco regional office noted that states do
not know what data they need to provide to justify a criteria
modification or when their region will approve a criteria modification.
The official explained that a southern California group of dischargers
spent $1.5 million to provide supporting data for a standards change to
the regional EPA office. The proposed change was ultimately not
approved, and the sponsors believed that a clear reason for the
disapproval was not provided.
Officials from EPA‘s Office of Science and Technology told us that EPA
has intentionally not issued specific guidance on what constitutes an
approvable criteria modification. The officials explained that EPA does
not want to preclude options that states may use to modify their
criteria if the states can demonstrate protectiveness and scientific
defensibility of the proposed criteria. The officials noted that EPA
regional and headquarters staff are available to assist states that
wish to pursue modifications of their criteria. We acknowledge the
merits of EPA‘s strategy of allowing the states the flexibility to
pursue different options. Our findings, however, suggest that
additional headquarters guidance and training of its regional water
quality standards staff would still help to facilitate meritorious
criteria modifications--particularly in situations where relatively
less experienced standards officials have hesitated to consider
proposed modifications largely because they would come under the
scrutiny of the regulated and/or environmental communities.
Improving Criteria Would Result in Different Waters Being Slated for
Cleanup:
States‘ abilities to modify criteria can significantly affect the way
they identify their impaired waters and, consequently, the decisions
they make as to which of their waters should be targeted for cleanup
under the TMDL program. When asked if an improvement in the criteria
modification process would result in different waters being slated for
TMDL development, 22 states responded yes, 19 states said they did not
know, and 10 states said no. Idaho, Rhode Island, South Carolina, and
Wyoming responded that improved criteria would probably result in fewer
waters being listed as impaired. Rhode Island and South Carolina said
that such criteria could better reflect site-specific conditions in
their states. Oregon‘s response noted that an improvement in the
criteria modification process could lead to more or fewer water bodies
identified as impaired, depending on what criteria are modified and how
they are modified.
Additional Impacts Expected from Upcoming New Criteria on Nonpoint
Source Pollutants:
In addition to states identifying different waters as impaired due to
their modification of existing criteria, states would also identify
different waters as impaired as a result of new nonpoint source
pollutant criteria--particularly nutrients and sedimentation. These
criteria will likely lead to increases in the number of impaired waters
listed by some states, particularly agricultural states. Kansas water
quality officials explained, for example, that if Kansas adopts the
nutrient criteria without adapting them for local conditions, more than
90 percent of the state‘s lakes and reservoirs--284 of approximately
315 lakes and reservoirs--would need to be listed as impaired by
nutrients. Regardless of whether states experience an increase,
decrease, or no change in the number of waters identified as impaired
due to new criteria, the more important point is that states will be
identifying different waters as impaired.
Potentially Large Cumulative Impact of Both Designated Uses
and Criteria on Impaired Waters Lists:
Because designated uses and criteria make up states‘ water quality
standards, a change in either one is considered a standards
modification. As noted in chapter 2, 22 states reported that an
improvement in the process of changing designated uses would result in
different water bodies being slated for cleanup. Further, as noted in
this chapter, 22 states reported that an improvement in the process of
modifying criteria would have that effect. When we superimpose the
states‘ responses to obtain the cumulative effect of improving either
designated uses or the process of criteria modification, we found that
a total of 30 states indicated that an improvement in the process of
modifying standards--whether a change in their designated uses, their
criteria, or both--would result in different water bodies being slated
for cleanup. (See fig. 10.):
Figure 10: States Reporting That Different Water Bodies Would Be Slated
for Cleanup if Improvements Were Made to the Process of Changing
Standards:
[See PDF for image]
[End of figure]
Note: GAO analysis of state data.
Importantly, the 30-state total does not reflect the impacts that would
result from EPA‘s publication, and states‘ subsequent adoption, of new
criteria for sedimentation and other pollutants and states‘ adoption of
new nutrient criteria. As this occurs in coming years, states will
adopt numeric criteria for these key pollutants which, in turn, will
likely lead many of them to identify different waters as impaired.
Conclusions:
Because water quality criteria are the measures by which states
determine if designated uses are being attained, they play an equally
important role with designated uses in identifying impaired waters for
cleanup. Several problems, however, impede the use of criteria for this
purpose. Specifically, (1) EPA has not developed many of the criteria
for identifying the key nonpoint source pollutants that cause the
largest share of the nation‘s water quality impairments, (2) even when
EPA has developed criteria recommendations, some states have often had
difficulties using the criteria in such a way that they can reasonably
determine if the criteria are being met, and (3) most states have
difficulty modifying the criteria that they already have in place.
EPA has developed and published criteria for a wide range of pollutants
over a period of decades, but has not yet issued numeric water quality
criteria recommendations for key nonpoint source pollutants that
together cause approximately 50 percent of water quality impairments
nationwide. The agency has taken significant steps toward the complex
task of developing nutrient criteria, and states are currently trying
to adapt default nutrient criteria provided by EPA to reflect local
conditions. However, EPA has made substantially less progress to date
in developing criteria for sedimentation, another top priority
pollutant, and has yet to identify a target date for its completion.
In cases where EPA has developed criteria recommendations, states have
often had difficulties using the criteria in such a way that they can
reasonably determine if the criteria are being met. Some difficulties
in using the criteria stem, for example, from states‘ inability to
reasonably monitor at the frequency needed. While a lack of resources
for monitoring has been a long-standing concern at the state level,
some EPA regional officials have noted that there may be alternative,
scientifically defensible monitoring strategies that could better help
them determine whether water bodies are meeting their criteria.
Even though states are required to review and modify their existing
criteria periodically, most states have a difficult time making needed
changes. While most states said that they sometimes lack the resources
needed to modify their criteria, more than half of the states also
reported that EPA‘s approval process is a barrier they face when trying
to modify their criteria. Many noted that EPA regional officials are
inconsistent in the types and amount of data they deem sufficient to
justify a criteria change. This inconsistency can be explained, at
least in part, by staff turnover in the regional offices, particularly
in situations where relatively less experienced standards officials
have hesitated to consider proposed modifications. Additional
headquarters guidance and training of its regional water quality
standards staff would help facilitate meritorious criteria
modifications while protecting against modifications that would result
in environmental harm.
Recommendations:
We recommend that the Administrator of EPA take actions to improve
states‘ abilities to adopt, implement, and modify water quality
criteria. Specifically, the Administrator should direct the Office of
Science and Technology to do the following to help ensure that states‘
criteria are a valid basis for impairment decisions:
* Set a time frame for developing and publishing nationally recommended
sedimentation criteria.
* Develop alternative, scientifically defensible monitoring strategies
that states can use to determine if water bodies are meeting their
water quality criteria.
* Develop guidance and a training strategy that will help EPA
regional staff determine the scientific defensibility of proposed
criteria modifications.
Agency Comments and Our Evaluation:
EPA states that the report should further emphasize the significant
progress the agency has made in developing criteria for nutrients and
sedimentation. EPA notes, for example, that the agency has published
final nutrient criteria recommendations for all freshwaters (except
wetlands) in the contiguous United States and that EPA is currently
working on nutrient criteria recommendations for wetlands. The agency
also underscored its initial efforts to develop sedimentation criteria.
The draft report had cited EPA‘s significant efforts to develop
nutrient criteria, noting, for example, that EPA issued guidance in
January 2001 to assist the regions and states develop ’eco-regional“
numeric nutrient criteria that would take into account local watershed
conditions. The draft also cited EPA‘s plans to have a strategy for
developing sedimentation criteria by September 2003 and after that,
consult with its Science Advisory Board regarding the strategy.
However, in response to the EPA comment, we have added an expanded
explanation of the current status of EPA actions to develop nutrient
and sedimentation criteria in chapter 3.
EPA questions the draft report‘s prediction that new criteria for
nutrients, sedimentation, and other pollutants would lead to large
increases in the numbers of waters listed as impaired. EPA points out
that it may be difficult to predict the effect of the new criteria for
various reasons. For example, EPA notes that depending on how states
prepared their previous lists of impaired waters, some waters may be
taken off the list while others are added. In addition, EPA explains
that new quantitative criteria for nutrients or sedimentation may help
refine impaired waters lists because many states would have numeric
benchmarks as opposed to narrative criteria or qualitative assessments.
We acknowledge EPA‘s assessment that the nationwide effect of new
criteria may be unclear. However, water quality experts from a number
of individual states told us that they expect large increases in their
numbers of impaired waters from the new nutrient criteria alone.
Nonetheless, whether the new criteria result in an increase, decrease,
or no change in the number of waters listed as impaired nationwide, the
important point is that the issuance of these criteria will result in
different listings in the case of many waters. In response to EPA‘s
comment, we revised the report to emphasize the key point that states
will identify different waters as impaired, rather than more or fewer
waters.
EPA states that the draft report did not sufficiently recognize the
progress EPA has made in addressing states‘ concerns about developing
and adopting nutrient criteria. The agency notes that in response to
states‘ concerns that EPA‘s nutrient criteria recommendations may not
be appropriate for specific waters, the agency issued a November 2001
guidance memorandum. EPA explains that the guidance memorandum
clarifies that states have the flexibility to adopt EPA‘s
recommendations, adapt the recommendations to better reflect local
conditions, or develop nutrient criteria using other scientifically
defensible methods. We acknowledge the value of EPA‘s November 2001
guidance but note that some state representatives told us of continuing
concerns, despite the guidance, over their ability to adopt, adapt, or
develop nutrient criteria. For example, some state representatives
reported that their states will need to adapt EPA recommended nutrient
criteria to reflect local conditions but will have difficulty
collecting adequate data to do so.
[End of section]
Appendixes:
[End of section]
Appendix I: EPA‘s Water Quality Standards Program Budget from 1992
through 2002:
EPA provided its best available budget amounts for the water quality
standards program from 1992 through 2002. As table 1 indicates,
the nominal dollar budget amounts for the program ranged between
approximately $16.2 and $20.3 million during that time.
EPA Water Quality Standards Program Budget Amounts from 1992
through 2002
Fiscal Year: 1992; Dollars in millions: $16.2.
Fiscal Year: 1993; Dollars in millions: $16.7.
Fiscal Year: 1994; Dollars in millions: $18.9.
Fiscal Year: 1995; Dollars in millions: $18.6[A].
Fiscal Year: 1996; Dollars in millions: $18.4[B].
Fiscal Year: 1997; Dollars in millions: $19.9[A].
Fiscal Year: 1998; Dollars in millions: $20.3[C].
Fiscal Year: 1999; Dollars in millions: $19.1[A].
Fiscal Year: 2000; Dollars in millions: $18.5[A].
Fiscal Year: 2001; Dollars in millions: $18.4[A].
Fiscal Year: 2002; Dollars in millions: $18.8[A].
[End of table]
Source: EPA.
[A] Enacted budget amount:
[B] Operations plan budget amount:
[C] Presidential budget amount:
[End of section]
Appendix II: GAO Survey of State Water Quality Standards Programs:
[See PDF for image] - graphic text:
[End of figure] - graphic text:
[End of section]
Appendix III: Comments from the Environmental Protection Agency:
UNITED STATES:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
WASHINGTON, D.C. 20460:
OFFICE OF WATER:
John B. Stephenson:
Director, Natural Resources and the Environment U.S. General Accounting
Office:
Washington, DC 20548:
Dear Mr. Stephenson:
Thank you for the opportunity to review the draft General Accounting
Office (GAO) Report, ’Water Quality: Improved EPA Guidance and Support
Can Help States Develop Standards That Better Target Cleanup Efforts.“
We appreciate the effort your staff has made to understand the water
quality standards program and will give serious consideration to your
recommendations. In this letter we are providing our substantive
comments on the Report. We are providing separate technical and
editorial comments regarding factual information in the Report.
Throughout the document, the Report emphasizes the need for the
Environmental Protection Agency (EPA) to publish nutrient and
sedimentation criteria since many waters are identified to be impaired
by these pollutants. We agree wholeheartedly, but believe your readers
need to know that EPA has made significant progress in developing
criteria for these pollutants, especially for nutrients. EPA has
published final nutrient criteria recommendations for all fresh waters
(except wetlands) in the contiguous United States. EPA is currently
working on nutrient criteria recommendations for wetlands. In addition,
EPA has published final guidance on how to develop nutrient criteria
for estuaries and coastal waters. Concerning sedimentation, EPA has
issued several technical papers and provided some guidance to States.
The Office of Wetlands, Oceans, and Watersheds (OWOW), in EPA‘s Office
of Water, is developing guidance for sedimentation TMDLs, including
innovative guidance on assessing watersheds for river stability and
sediment supply. The Office of Science and Technology (OST) is
developing a sedimentation criteria strategy for review by EPA‘s
Science Advisory Board during 2003. OST and OWOW are also working with
EPA‘s Office of Research and Development (ORD) on sedimentation
workshops, synthesis papers, and ORD‘s research projects concerning
sedimentation exposure, risk assessment, sedimentation effects, and
risk management/restoration. As a point of clarification, we suggest
you use the term ’sedimentation“ criteria rather than ’sediment“
criteria. Without this change, readers may confuse the term with
criteria for ’contaminated sediments.“:
The Report states in several places that the new criteria for
nutrients, sediments and ’other pollutants“ will lead to large
increases in the numbers of waters listed as impaired. This in fact may
not be the case for several reasons. (Use changes and criteria
modifications may also lead to some differences in the lists, but not
necessarily a huge increase or decrease.) First, the lists may change
with some waters being de-listed and some being added as a result of
States adopting new criteria depending on how the States have prepared
their previous lists. Second, many of the waters listed as impaired for
nutrients or sediments are listed based on narrative criteria or
qualitative assessments. New quantitative criteria may actually help
refine the impaired waters lists as the States will have numeric
benchmarks with which to evaluate monitoring data. These criteria will
also serve as quantitative targets to help prepare restoration plans
and thus reduce the number of waters on the list.Finally, it is
unclear how to interpret State responses to your survey since the
survey was conducted just as States were preparing their 2002 section
303(d) lists of impaired waters requiring TMDLs. State lists from
1998/2000 are the basis for EPA‘s current estimate of 35,000 TMDLs‘
needed, but most States have now submitted their 2002 lists based on
new information and on EPA‘s November 2001 listing guidance. This
guidance establishes a revised framework for assessing waters.
Preliminary analysis of the 2002 section 303(d) lists indicates that
many States are refining their lists as a result of this guidance. We
suggest that GAO‘s projection of ’increases“ in waters listed may be
difficult to justify given the changing baselines.
The Report suggests that States are concerned with EPA‘s guidance to
States on developing and adopting nutrient criteria (chapter 3, page
35). The statements in the Report do not recognize the progress EPA has
made in the past year to address many of the States‘ concerns. For
example, in response to States‘ concern that EPA‘s nutrient criteria
recommendations may not be appropriate for specific waters, EPA
clarified in a November 2001 guidance memorandum that States have the
flexibility to adopt EPA‘s recommendations, adapt the recommendations
to better reflect local conditions, or to develop nutrient criteria
using other scientifically defensible methods. EPA recommended that
States develop nutrient criteria plans describing their expected
approach to developing criteria and the schedule they plan to meet. EPA
requested that States share these plans with EPA for purposes of coming
to a mutually agreeable approach. Since we issued the November 2001
guidance memorandum, we have received a positive response from almost
all States interested in developing plans and pursuing development and
adoption of nutrient criteria.
With regard to designated uses, the Report says that additional
guidance on how to change uses is needed because the ’incorrect uses“
in place are causing waters to be inappropriately slated for TMDLs. EPA
does not believe the current designated uses are necessarily
’incorrect“
in these situations. Waters may be listed as impaired inappropriately
because the uses applying to those waters are not specific enough to
properly describe the desired conditions. Therefore, EPA intends to
provide guidance to States on how to change their uses so that they can
establish a more refined set of uses to assign their waters that will
better characterize the States‘ water quality goals for specific
waters.
In addition, the survey you sent to States asked whether they believed
their designated uses were ’reasonable“ and if they believed any
’refinement“ in the uses were needed. The language in the survey did
not
suggest that uses may be considered ’incorrect.“ We suggest that you
clarify this point in the report and remove any language suggesting
that
’more accurate designated uses“ are necessary. You may wish to consider
including the survey instrument in the Report as an appendix.
In Chapter 2, the Report fails to identify significant non-EPA barriers
that States face when changing designated uses. These include
burdensome State rulemaking processes, public opposition to any
’downgrades“ and resource shortages that make it difficult for States
to invest in necessary monitoring and assessment programs. The Report
does address similar non-EPA barriers (e.g. public perception, resource
shortages, stakeholder resistance) to criteria modifications in Chapter
3. We suggest including such a discussion on the non-EPA barriers to
designated use changes in Chapter 2.
Once again, we appreciate the opportunity to coordinate with your staff
on this Report. Should you need any additional information or have
further questions, please contact Fred Leutner, Chief of the Water
Quality Standards Branch at (202) 566-0378 or Don Brady, Chief of the
Watershed Branch at (202) 566-1227.
Sincerely,
Signed by Diane C. Regas:
Diane C. Regas, Director:
Office of Wetlands, Oceans, and Watersheds:
[End of section]
Appendix IV: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
John Stephenson, (202) 512-3841
Steve Elstein, (202) 512-6515:
Acknowledgments:
In addition to the individuals named above, Barbara Patterson,
Katheryn Summers, and Michelle K. Treistman made key contributions
to this report. Also contributing to this report were Nancy Crothers,
Brandon Haller, Karen Keegan, and Elsie Picyk.
FOOTNOTES
[1] ASIWPCA is an independent, nonpartisan organization of state and
interstate water program managers.
[2] According to EPA, there is a growing recognition of the importance
of biological criteria in water quality protection.
[3] EPA‘s regulations provide that the minimum requirements for a state
water quality standards submission to EPA include, among other things,
an antidegradation policy to maintain and protect the existing uses of
water bodies.
[4] EPA must also consult with the U.S. Fish and Wildlife Service and
the National Marine Fisheries Service if the approval would affect
threatened or endangered species.
[5] Alaska Clean Water Alliance v. Clark, No. C96-1762R (W.D. Wash.
July 8, 1997).
[6] Point source discharges include discrete discharges from individual
facilities, such as factories and wastewater treatment plants. Nonpoint
sources of pollution are diffuse sources that include a variety of
land-based activities, such as timber harvesting, agriculture, and
urban development.
[7] National Research Council, Assessing the TMDL Approach to Water
Quality Management (Washington, D.C.: National Academy Press, 2001).
[8] EPA, An Assessment of the Water Quality Standards Development and
Review Process (Washington, D.C.: October 2000).
[9] EPA Water Quality Standards Handbook--Second Edition.
[10] The 18 states with UAA protocols are Arkansas, Colorado, Idaho,
Illinois, Iowa, Kansas, Louisiana, Maine, Minnesota, Nebraska, Ohio,
Oklahoma, Pennsylvania, South Dakota, Texas, Washington, Wisconsin, and
Wyoming. The six states developing protocols as of summer 2001 were
Hawaii, Indiana, Maryland, Missouri, Virginia, and West Virginia.
[11] Officials from the other three regional offices indicated that
they did not know whether different water bodies would require TMDLs.
[12] The Clean Water Act includes specific requirements for priority
toxic pollutants, which are known to be toxic at low levels.
[13] EPA, An Assessment of the Water Quality Standards Development and
Review Process (Washington, D.C.: October 2000).
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