## Proceedings Summary Report National Symposium Designating Attainable Uses for the Nation’s Waters June 3-4, 2002 Marriott Wardman Park Hotel, Washington, DC

Prepared for: U.S. Environm ental Protection Agency Office of Science and Technology Standards and Health Protection Division W a ter Quality Standards Branch

EPA Contract No. 68-C-02-021 W o rk Assignm ent B-03 Prepared by:

739 Hastings Street Traverse City , Michigan 49686 Phone: (231) 941-2230 Facsim ile: (231) 941-2240

### DISCLAIMER

This report provides a basic overview of the EPA-sponsored national sym posium entitled “Designating Attainable Uses for the Nation’s W a ters” held on June 3-4, 2002 at the Marriott W a rdm a n Park Hotel in W a shington, DC. The inform ation presented reflects sum m a ry notes taken during the m eeting by the contractor, Gr eat Lakes Environm ental Center, and is not intended to quote any speaker/participant at the sym posium

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Sy m posium Proceedings Report 2 July 31, 2002

### Draft Summary Report National Symposium: Designating Atta inable Uses for the Nation’s Waters June 3-4, 2002 Marriott Wardman Park Hotel, Washington, DC
EPA’s Office of Science and Technology (OST) is responsible for overseeing the national water quality standards (W QS) program

. As part of their water quality standards program s, states and authorized tribes m u st establish appropriate protection levels or “designated uses” for each of the waterbodies in their jurisdiction. Many interested parties have expressed to EPA the need for additional guidance on designating uses for waterbodies (e.g., aquatic life, recreation, navigation) and the process to follow when m a king designated uses m o re or less protective.
In order to hear stakeholder views on this subject and to exam ine the possibility f o r developm ent of guidance for use designation, EPA sponsored a national sym posium entitled “Designating Attainable Uses for the Nation’s W a ters” on June 3-4, 2002 at the Marriott W a rdm a n Park Hotel in W a shington, DC. Approxim a tely 200 interested citizens, governm e nt officials, and regulated parties attended this open m eeting. (The attendee list is available on EPA’s web site at: http://www.epa.gov/waterscience/standards/sym posium / registlist.pdf.) EPA assem b led an expert panel representing different viewpoints to share their perspectives, and invited stakeholders to subm it abstracts on a variety of topics concerning designated uses. Based on these abstracts, the Agency selected speakers who gave brief presentations at the sym posium

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The form at for the sym posium was as follows: Day 1- Expert panel presentations with comm e nts and questions in the m o rning followed by stakeholder presentations in the afternoon. Day 2- Sm all group discussions in the m o rning with additional stakeholder presentations in the afternoon.
This report sum m a rizes the presentations and discussions at the sym posium

. Sy m posium Proceedings Report 3 July 31, 2002Monday June 3, 2002 The sym posium opened with a statem ent by Geo ffrey Grubbs, Director of OST. Mr. Grubbs explained that the Clean W a ter Act (CW A ) requires states and authorized tribes to establish water quality standards, of which designating the use of the waterbody is a critical com ponent. He also explained that the sym posium was designed to be a listening opportunity for EPA, and that EPA does not plan to introduce new policies or propose new initiatives for regulatory change. Mr. Grubbs also stated that EPA recognizes the com p lexity of issues surrounding designating attainable uses, and that EPA appreciates the views and opinions received from the stakeholders.
Opening rem a rks continued with an overview statem ent from the m eeting organizer, Cara Lalley of

OST’s W a ter Quality Standards Branch, describing the purpose of the sym posium

. Ms. Lalley explained that the goals of the m eeting were to enable inform ation exchange am ong stakeholders that m i ght help resolve key questions concerning use designations, and to help EPA understand the diversity of views concerning use designations. She also stated that EPA is considering developing guidance for states a nd tribes addressing those key questions.
The schedule and ground rules for the sym posium were then explained by the sym posium facilitator, Jan Connery of Eastern Research Group (ERG).

1.0 EXPERT PANEL PRESENTATIONS Each of seven expert panel presenters was asked to speak for approxim a tely 5-8 m i nutes about the one or two actions that they would m o st like to see EPA take in the near future regarding designated uses, and why. Their com m e nts are sum m a rized below.

1.1 Leonard Shabman, Director, Virginia Water Resources Research Center at Virginia Tech and Committee Member of the June 2001 National Research Council Total Maximum Daily Load (TMDL) Study
Sy m posium Proceedings Report 4 July 31, 2002• M onitoring data should be com p ared to designated uses (There needs to be a better connection between m onitoring and the design of water quality standards; don’t design a standard that includes criteria that cannot be m easured using current m onitoring techniques).

• A Use Attainability Analysis (UAA) is used to define water conditions, not to degrade water quality requirem e nts. UAAs are not always for designated use downgrades.

• E PA m u st better com m unicate with interested parties, and water quality goals should be subject to revision. (The need for a UAA is a “social determ ination” that involves the public. Long-term use attainm e nt decisions are not always possible. Therefore, we m u st take short-term steps toward water quality im provem e nts and they m u st involve educating the public about what water quality standards are desirable and achievable.)

• E PA should seek out advice from experts in the academ ic arena when developing water quality guidance, particularly from econom ists when giving guidance on CFR 131.10(g)(6).

1.2 Mary Buz b y, Director of Environmental Technology at Merck, representing the American Chemistry Council

• U se designation is a good concept, but there are flaws.

• N ational designated uses (fishable/swim m able, recreation, etc.) are not differentiated sufficiently for regulatory purposes. (National EPA policies don’t allow for enough local specificity).

• T here is a need to further refine use designations to reflect highest attainable uses. W e should strive for the highest attainable water quality, not an unrealistic pristine condition.

• W hen waterbodies are segm ented for water quality standards, the different segm ents should reflect different uses.

• T here is a lack of clarity from EPA abouthow use designations should be established, and there are too m a ny delays in the regulatory process regarding UAAs and use changes.

• A weight of evidence approach is needed when evaluating use attainm e nt, rather than independent applicability (i.e., independentevaluation of chem ical, biological, or physical data).

• S om ething m u st be done to solve conflicting public m a ndates between ensuring high water quality and protecting other aspects of public health and safety (e.g., swails beside roads drain snowm e lt after salting, but the high levels of salt in the water prevent fishable uses). 1.3 David Katz , Deputy Water Commissioner of the Philadelphia Water Department, representing the Association of Metropolitan Sew er Agencies (AMSA)

Sy m posium Proceedings Report 5 July 31, 2002• D esignated uses, m onitoring, TMDLs, etc. are all interlinked (but TMDL calculations are often not well developed). Designated use reviews should be form ally incorporated into the TMDL process.

• U se designations of ten get lost in the water quality standards program

. Statewide “blanket”designations of 101(a)(2) uses have a different regulatory significance today than they did when they were established in the 1970s. CFR 131.10(g) is too stringent to rem ove these im proper designations. • S tates say that they need f l exibility and that designated uses need revisions.

1.4 Nina Bell, Executive Director, Northw est Environmental Advocates

• E PA’s em phasis on downgrading use designations is not responsible.

• T he Bush adm i nistration f o cuses on attainability (“alm o st there”) rather than on attainm e nt (“there”) of water quality standards.

• T he inadequate broad use designations currently applied across the country are sufficiently vague so as to avoid applying the m o st protective criteria (especially for protecting endangered species).

• E PA should persuade states to upgrade rather than downgrade use designations. W h en states do not com p lete triennial reviews on tim e, EPA should use the opportunity to prom ulgate use upgrades.

• A ntidegradation guidance is needed m o re than use designation guidance, and should be EPA’s top priority.

1.5 Tony Shaw , Water Pollution Biologist, Pe nnsylvania Department of Environmental Resources

• P ennsylvania traditionally focused on chem ical and point-source pollution, but has recently switched its focus to non-point sources of pollution and using biological assessm ents when determ ining water quality standards.

• M ost of Pennsylvania’s use reviews have been for aquatic life uses, and 95 percent of them have resulted in no change or an upgrade in use.

• O riginal designated uses from the 1970s are not particularly accurate; there are now som e localized discrepancies with the blanket designations. Som e stream s have never attained their designated use (e.g., cold water fishery).

• P ennsylvania needs EPA guidance on how to designate recreational and hum an contact uses.

• S tates need guidance and flexibility. They are caught between EPA m a ndates and satisf y ing the public. 1.6 Robert Moore, Executive Director, Prairie Rivers Netw ork

• U se designations drive water quality standards. Sy m posium Proceedings Report 6 July 31, 2002• UAAs are not a form of regulatory relief.

• E PA guidance should be on how to properly docum ent uses of waterbodies and how to m eet CW A goals, not on how to downgrade uses.

• S tates should seek the advice of EPA through guidance that already exists, such as technical support and antidegradation docum ents. • W ishes to see upgrades rather than downgrades in designated uses.

1.7 Rick Moore, President of Riz z o Associates, representing the Water Environment Federation

• T he Clean W a ter Act is a prem ier legislative act, and no one wants to com p rom i se Section 101(a)(2) uses. But interpreting the “where attainable” clause is the key. • A ttainm e nt of a designated use 30 years ago is not the sam e as attainm e nt now.

• T here is a disconnect between the costs and benefits of wet weather program s; the public and politicians don’t understand how cost-benefit analysis works.

• T here is a need for tem porary standards during rain events because water quality standards are violated during alm o st every wet weather event. • W e should rem ove the existing use concept and focus on designated uses.

1.8 Questions and Responses Concerning the Expert Panel Presentations After the panel presentations, sym posium participants were given the opportunity to ask questions of the expert panel m e m b ers. The questions and panel responses are summ a rized below.
Question 1: “Dischargers” have made arguments to gut the CWA and 131 regulation, yet w e can’t get rid of the Clean Water Act. CFR 131.10(h) has been forgotten. Triennial review s must assess dow n graded w a ters, and the CWA calls for restoration of w a ters. What is the polluters’ argument for dow n grading w a ter quality standards? Response : Practicality m o tivates dischargers to look for use changes. Dischargers haven’t been able to m a ke all water quality im provem e nts, but they’ve m a de increm ental im provem e nts and would like to m a ke m o re, rather than staying at zero im provem e nts (i.e., an unattained use) due to sem a ntics in the regulatory language.

Sy m posium Proceedings Report 7 July 31, 2002Response : Industry invests in clean water, relies on it, and has no intention to destroy it. But we want to get the use right. That doesn’t m ean downgrading or upgrading, until the science is done to determ ine which is appropriate. Response : A change in a use designation is not necessarily a downgrade.
Question 2 : W hat data are needed to remove a designated use? Response : Perhaps the question that should be asked is: how do we m a ke uses m o re precise, not downgrade or rem ove uses. So first refine uses to som e extent (e.g., as sim p le as cold vs. warm water fishery). Response : W e need the sam e data and m odels utilized f o r TMDL calculations. Response : Social issues need to be included as well. Response : W e need the existing use concept to m o tivate us to upgrade use designations. Giving up on that concept would be giving in to the status quo of allowing water to be degraded.
Question 3 : H owdo w e reconcile w h en existing uses are greater than designated uses? Response : W e need to involve m o re lay people in watershed decisions. Response : W e can’t always rely on the public to give accurate answers.
Question 4 : I t’s not true that all use designations apply everyw h ere, because some streams are not that easy to characteriz e . To resolve this, should EPA come up w i th a checklist approach for use attainability? Response : There is a value to a checklist approach, however a watershed approach is m o re desirable. Response : Checklists can be good, but if they lead to restrictions, then they are bad. Response : A “cookie-cutter” approach is not a good idea for use attainability.

Sy m posium Proceedings Report 8 July 31, 2002Question 5 : H oww o uld it be helpful to balance regulatory requirements (i.e., provide more flexibility)? Response : There is a need to balance water quality im provem e nts with costs and benef its. Response : If we can’t m eet the use, is it proper to begin with? Response : If standards and uses are not m e t, then it’s difficult to be flexible [under the CW A and its im plem enting regulations].
Question 6 : W hat are the national trends in upgrading use designations, and w h y should there be more flexibility by EPA? Response : National trends are difficult to comm e nt on, but in Pennsylvania m o st uses are upgraded. Response : There should be m o re flexibility because the states are attem p ting to refine use designations, and this takes tim e. Response : Com m unities do need to f o llow the rules, but som e f l exibility is needed. Response : Flexibility allows f o r a shif t f r om regulatory issues to other im portant issues.
Question 7 : W hat are the problems associated w i th the use of biological data and reference sites? Response : Least disturbed sites becom e the standard when they are not necessarily com p arable to other sites. Response : There are other issues with protocol, statistics, etc. that are of concern. Response : There are problem s with excessively “strict” or “loose” reference sites.
Question 8 : W hat can w e do w h en cost/benefit analyses don’t favor the benefits and how do w e involve the public? Response : The public generally wants to spend m oney for pollution control, so we need to explain the benefits that would be obtained.

Sy m posium Proceedings Report 9 July 31, 2002Question 9 : H owmuch do w e really need an existing use, and howcan w e define biological and human uses? Response : W e need to protect existing uses. Response : If we don’t have an existing use, then we don’t know the restoration benchm ark. Response : W e don’t have com p lete toxicity data for protecting existing uses. Response : There are different processes for designa ting hum an and biological uses, and it’s not “one size fits all.”

2.0 ABSTRACT PRESENTATIONS Prior to the sym posium , participants interested in being presenters subm itted abstracts describing case studies or new approaches addressing specifi c topics regarding use designations. Of those abstracts subm itted, a representative num ber were selected to present dif f e rent perspectives on a variety of issues. A brief sum m a ry highlighti ng the key points of each presentation is provided below, and a copy of each abstract is available on EPA’s web site at: http://www.epa.gov/waterscience/standards/sym posium / abstracts/ (EPA received a large num ber of abstract subm issions, and was not able to select them all for presentation at the sym posium due to tim e constraints. However, EPA has posted m a ny of the abstracts that were not selected on the above web site.)

2.1 Jodi Perras, City of Indianapolis Department of Public Works Reconciling Policy with Reality: Applying a Common Sense Interpretation of “Existing Use” for Recreation in a CSO-Impacted Urban Watershed Ms. Perras introduced her presentation by stating that the City of Indianapolis supports and upholds the principles underlying the Clean W a ter Act, including the antidegradation principle and the need to provide the greatest protection to existing uses of the nation’s waterways. As part of this effort, Indianapolis is preparing a long-term control plan to address long-standing com b ined sewer overflow (CSO) problem s, and an accom p anying UAA. The UAA will seek to dem onstrate that any rem a ining CSO discharges will contribute to violations of water quality standards f o r bacteria, and that com p lete elim ination of those discharges will cause widespread

Sy m posium Proceedings Report 1 0 J uly 31, 2002econom ic and social im pacts on the comm unity. Through the UAA, they will be proposing a tem porary suspension of the designated full-body contact recreational use on CSO-im pacted stream s during and after wet weather events. Wh en trying to determ ine an existing use, EPA policy says “a state m a y rem ove a designated use f r om its water quality standards only if the designated use is not an existing use.” An existing use is a use actually attained in the water body on or after Novem b er 28, 1975, whether or not they are included in the state’s water quality standards. However, the term “actually attained” is not defined. Therefore, how should the city of Indianapolis and the State of Indiana determ ine whether a use has been “actually attained?” In an urban watershed, they believe the following factors should be considered in m a king this determ ination: - Is the water quality and hydrology of the stream s conducive to full-body contact recreation? - Are there physical barriers m a king it difficult for people to access the stream ? - Is swim m i ng or other full-body contact recreati on specifically authorized or enabled by the

city (e.g., does the waterway contain public beaches with lifeguards)? - Does the city discourage contact with sewage-contam inated waterways through warning

signs or other public education program s? - How frequent and widespread are any unauthor ized recreational uses of an urban stream ? Thus, EPA, states and CSO com m unities m u st m eet on com m on ground to be m o st efficient. Everyone m u st strive for full protection of an ex isting use. Finally, there m u st be a national, com m on sense definition of “existing use” and “actually attained”.

2.2 James Woodw o rth, Urban Water Specialist, Natural Resources Defense Council Balancing Bathers and Bacteria: Managing Recreation, Wet-Weather Flows and the Legacy of a Combined Sewer System in the Nation’s Capital.
Mr. W oodworth first gave a brief historical account of the W a shington, DC com b ined sewer system which is outdated and overflows approxim a tely 75 tim es in an average year, discharging over 3 billion gallons of untreated com b ined sewer ef f l uent and storm water during rain events. In an attem p t to address this issue, a Long Term Control Plan (LTCP) for CSOs has been drafted that proposes to reduce by a very large percentage both the frequency and volum e of overflows occurring in District waters. Yet, in striving to balance econom ic realities, engineering constraints, and clim atological uncertainties, the proposed plan will not m eet existing water quality standards all of the tim e. The plan instead proposes to m odify water quality standards so that the standards can be m e t or relaxed during wet-weather events. All of the waters of the District of Colum b ia are classified for designated uses of Class A waters, fit for prim ary contact recreation, but none of those waters are now classified for current uses of Class A waters. However, the W a shington, DC CSO system is designed to overflow, and separation will not address storm water runoff. CSO controls alone won’t fix an inter-jurisdictional watershed Sy m posium Proceedings Report 1 1 J uly 31, 2002problem

. He recom m e nded that a well-intentioned and balanced use attainability analysis should engage and address the recreational needs, desires and visions of the local comm unity. It should consider the lim its of technology with the realitie s of recreation, which, in the context of wetweather high flows and elevated bacteria levels, do not necessarily consider the weather report. In sum m a ry, water quality standards should be reevaluated only after a com p rehensive long term control plan has been designed, approved and im plem ented. Provisions should be m a de to m onitor progress and upgrade the plan as necessary. Any rem a ining discharge of com b ined sewer overflow should receive at least a m i nim u m level of treatm e nt. Short-term m easures should include the institution of a single-sam p le m a xim u m num eric standard, real-tim e water quality m onitoring and public notification analogous to the now com m on-place hazardous air quality ozone alerts.

2.3 Warren Kurtz , NewYork City Departme nt of Environmental Protection and John St. John, HydroQual, Inc. New York City’s Use and Standards Attainment Project Mr. St. John sum m a rized New York City’s Use and Standards Attainm e nt (USA) project, which is a $13 m illion m u lti-year watershed planning project designed to evaluate all of the causes of non-attainm e nt of water quality standards and opportunities and requirem e nts for m a xim i zing benef i cial uses. This approach involves conduc ting waterbody/watershed assessm ents of m o re than 20 waterbodies in the New York Harbor com p lex. In addition, the New York City Departm e nt of Environm ental Protection (DEP) is im plem enting a m u lti-phase program to address the im pacts of CSOs and water pollution control plants on these waterbodies. However, even with very large capital expenditures on m a jor CSO projects and som e im provem e nt in num erical values of key water quality param e ters, full attainm e nt of benefici al uses m a y not be achievable in m a ny cases. Thus, should CSO facilities be expected to attain “fishable/ swim m able” water quality in all tributaries if elim ination of CSOs by sewer separation would not? In sum m a ry, New York City is com m itted to the goals of the CW A and abatem ent of CSOs and other polluting dischargers. However, “fishable” and “swimm able” everywhere, all the tim e, m a y not be necessary to achieve these goals. Pollution controls should be considered satisfactory in som e cases if basic water uses are protected.

2.4 David Yaussy, Robinson and McElw ee LLP Protecting What Doesn’t Exist: West Virginia’s Statewide Public Water Supply Use Designation As presented by Mr. Yaussy, the W e st Virginia Environm ental Quality Board (W VEQB), the agency that sets W e st Virginia’s water quality standards, applies the public water supply use in
Sy m posium Proceedings Report 1 2 J uly 31, 2002all state stream s, regardless of whether the stream is used as a drinking water supply (to protect those individuals that consum e water directly from stream s). Im plem entation of this policy could lead to significant differences in som e cases between the criteria for the public water supply use and the m a ndatory Clean W a ter Act fishable/swim m able uses. Rather than identifying public water intakes and setting upstream controls as appropriate to protect them , W V EQB is proposing to rem ove the public water supply use where it would interfere with industrial or m unicipal operations. The W V EQB understands that its current strategy for designating the public water supply use is lim iting and has concerns regarding the tim e fram e for approval of use re-designations (the EQB is working on a procedural rule that will expedite m e thods for rem oving the public water supply use designation). Mr. Yaussy recom m e nds that EPA allow states f l exibility to rem ove of use designations in areas where it does not exist or will not exist in the foreseeable future. More specifically, he proposes that states m a y rem ove, without a use attainability analysis, a designated use that is not an existing use and that is not a use designated to protect fish, shellfish and wildlife, or recreation in and on the water (Section 101(a)(2) CW A).

2.5 Robert C. Wieland, Main Street Economics Does a UAA Require “Least-Cost” Attainment? W h en dealing with cost issues, UAAs have traditionally held polluting entities to a least cost standard, focused on a single polluter or a single, well-defined group of polluters. However, in an expanded UAA, the range of pollution sources, abatem ent technologies and paym ent options is significantly broadened. Assessing the costs of attainm e nt for an expanded UAA is, consequently, m o re com p licated. Thus, should those costs and practices be optim ized with respect to cost-efficiency? If they are not, then the least cost option for attainm e nt is not likely to be m e t. Cost curves and cost-effectiveness should be incorporated into UAAs m o re often. Least-cost attainm e nt can be useful for large m unicipal system s, but m o re refinem e nt needs to be com p leted. Finally, funding for abatem ent should be addressed to evaluate affordability.

2.6 Chris Yoder, Midw est Biodiversity Institute and Committee Member of the June 2001 National Research Council TMDL Study The Importance of Tiered Aquatic Life Uses and Adequate Monitoring and Assessment to the Routine Performance of the Use Attainability Analyses Based upon standard m onitoring and assessm ent techniques, the Ohio Environm ental Protection Agency (OEPA) determ ines the extent to which use designations assigned in the Ohio W Q S are either attained or not attained for a given water body. Since 1990, the OEPA has utilized a tiered aquatic life use approach to adopt biological crite ria. The im plem entation of biological criteria Sy m posium Proceedings Report 1 3 J uly 31, 2002introduces a process in which the UAA is a fundam e ntal com ponent. The data and inform ation to support aquatic life UAAs is produced by the system atic m onitoring and assessm ent of biological, chem ical, and physical indicators vi a a rotating basin approach. This approach em ploys an adequate set of standardized and calibrated biological assessm ent tools supported by appropriate chem ical and physical indicators. An integrated analysis of resource quality and attainm e nt status, delineation of causes and sources of threats and im pairm e nt, and recom m e ndations for m a nagem e nt actions are produced for each assessm ent. This includes recom m e ndations for any changes to use designations that m i ght be appropriate, which is then followed by a W Q S rulem a king process. Thus, by including tiered uses linked to biological criteria and supporting chem ical and physical indicators, the UAA process becom e s a m a tter of com p arative routine rather than a resource intensive endeavor.

2.7 Jeroen Gerritsen, Tetra Tech, Inc. Using Watershed Ecological Risk Assessment to Improve Use Attainability Analyses As explained by Mr. Gerritsen, designated us es are often assigned by regulatory agencies without com p lete knowledge of a given waterbody due to resource constraints. In m a ny cases it is not clear whether the designated use is appropriate because there is a lack of data and/or am biguities in the way som e uses are def i ned. However, the use of EPA’s recently developed watershed ecological risk assessm ents can be used to address these deficiencies in the UAA process in a system atic and scientifically defensible m a nner by involving watershed-specific stakeholders in def i ning the assessm ent process and considering potential m u ltiple stressors. The attributes of the watershed ecological risk assessm ent lend them selves to the process of defining designated uses. Using the EPA spons ored Clinch-Powell River basin (Virginia) watershed ecological risk assessm ent as an exam ple, several m e thods for im proving the UAA process and designation of uses were presented.

2.8 Albert Ettinger, Environmental Lawand Policy Center of the Midw est An Environmentalist Perspective on Use Attainability Analysis and the Lower Des Plaines UAA The portion of the Des Plaines River below its confluence with the Chicago Sanitary and Ship Canal historically has had very poor water quality as a result of various wastewater dischargers and channel m odifica tions, and has been classified as “Secondary Contact and Indigenous Aquatic Life.” The great im provem e nt in water quality that has occurred in the last three decades m a kes it possible now to consider upgrading the designation of the Lower Des Plaines to “General Use.” Th e UAA being perform e d on the Des Plaines River is unique because it is attem p ting to determ ine whether the current classification (lower than Sy m posium Proceedings Report 1 4 J uly 31, 2002fishable and swim m able use) should be upgraded due to the increased value placed on the water body in recent years. Clearly there is a need for public participation in the UAA process and there should be a strong bias under the Clean W a ter Act against designations that are less than fishable and swim m able. It is im portant to consider the uses that could be hoped for, based on the m odifications present within the system and the legal and econom ic standards set forth by 40 CFR 131.10(g).

2.9 Charles Potts, Oklahoma Water Resources Board The Public and the Use Attainability Analysis As described by Mr. Potts, the UAA procedure in Oklahom a has evolved over the past 20 years from a one dom inated by “sensory” determ inations (sights and sm ells), to one that is highly quantitative with distinct data objectives and m easurem ents. Determ ining what questions need to be answered and what m easurem ents are needed to answer those questions is a m a jor step in determ ining which beneficial uses are appropriate for any given stream

. The current assessm ent m e thodology that is reproducible and quantitative m a kes three assum p tions with regards to beneficial uses. First, not every stream will be capable of supporting the sam e type of biota. Second, if the habitat is there, the clim ax com m unity will find a way to colonize it. Finally, lack of a certain water depth elim inates the need for a prim ary body contact designation. Thus, the use of the m e thodology (detailed transect descrip tions along stream s, flow charts and equations) has significantly reduced the subjectivity involved in the UAA process.

2.10 Gayle Killam, River Netw ork Public Involvement Challenges from Around the Country River Network is a national support organization to watershed groups throughout the country. Their interaction with groups working in m a ny different states offers them a window into the successes and failures of public involvem e nt. Based on four cases presented by Ms. Killam , the River Network is concerned that existing processe s for the involvem e nt of stakeholders in use designation decisions are inadequate. They concluded that existing uses are not adequately protected by designated uses, there have been inconsistent triennial reviews (som e with inadequate public notice), UAAs were seldom com p lete (if available at all), and there has been inadequate response by EPA to public comm e nts. Thus, they are concerned that these problem s are weakening the Clean W a ter Act and its program s.

Sy m posium Proceedings Report 1 5 J uly 31, 20023.0 DAY 1 SUMMARY OF KEY ISSUES RAISED IN DISCUSSION Betsy Southerland, Director, Standards and Health Protection Division, EPA Office of Science and Technology At the end of the first day of the sym posium , Ms. Southerland provided sum m a ry observations of the panel discussions and abstract presentations.

3.1 Panel Discussion Summary

Ms. Southerland felt that the panel session generated im portant discussion regarding establishing and im plem enting designated uses. She noted som e im portant areas of agreem ent and disagreem ent am ong the panel m e m b ers and the audience m e m b ers who asked questions.

3.1.1 Issues Where There Was Agreement Among Participants Everyone agreed that use designation is the driver for m onitoring, assessm ents, TMDLs and perm its. Therefore, it is im portant to assign the correct use for each waterbody segm ent. Everyone also agreed that better refined use designations are needed, with differentiated criteria to protect those uses. Broad uses are not accurate enough to determ ine attainm e nt.

3.1.2 Issues Where There Was Disagreement Among Participants There was considerable disagreem ent about the concept of existing use (i.e., how and whether existing uses should be determ ined and protected). Ms. Southerland pointed out that this is an especially im portant issue for EPA to address because once an existing use is defined, it becom e s the lowest allowable use for a waterbody. The second disagreem ent observed was the im portance of reconciling national policy with the opinions and social decisions that local watershed residents would m a ke regarding the uses of their waterbodies.

Sy m posium Proceedings Report 1 6 J uly 31, 20023.2 Main Themes of Abstract Presentations The following is a sum m a ry of the im portant issues/m ain them es presented by the ten different abstract speakers as perceived by Ms. Southerland.

There were som e interesting ideas about prioritization. Indianapolis prioritizes sensitive use areas, New York prioritizes open waters versus ur ban tributaries, and W e st Virginia prioritizes those waters that have existing drinking water intakes over those that could potentially be used
as drinking water intakes. In each case they were looking for a way to do things differently in the high priority areas than the low priority areas. Thus, there is a need to prioritize uses and waterbodies, and tackle the biggest problem s first.

Tim i ng issues are also of concern. For exam ple, TMDL changes have been m a de both before and af ter changes in water quality standards. Environm ental justice issues were also m e ntioned. For exam ple, children playing in urban stream s, rural residents drinking untreated water, and anglers consum ing fish from polluted waters are great concerns.
Cost trade-offs are also an issue when designating uses. One idea was to provide splash parks and swim m i ng pools instead of cleaning up urban waterways to attain prim ary contact recreation. Another idea was to change the location of the drinking water intakea instead of cleaning up a contam inated area to m eet standards for public water supply.

There is a need for econom ic analyses in the use designation process. A suggestion for the New York harbor is to continue to use the m a xim u m af f o rdability approach f o r pollution control f o r the high priority open waters, but switch to a knee-of-the-curve econom ic analysis for the low priority urban tributaries. Pollutant trading and least-cost attainm e nt were also discussed.
During the abstract presentations there were som e good exam ples of aquatic life and recreation
use assessm ents. Several speakers also stressed the need for m o re public involvem e nt in use

Sy m posium Proceedings Report 1 7 J uly 31, 2002designation decisions. Finally, EPA needs to oversee use designation and revision processes
m o re adequately and provide m o re guidance.
Tuesday, June 4, 2002

4.0 SMALL GROUP DISCUSSIONS AND PLENARY/REPORT OUT For this session, participants were seated in 16 groups of approxim a tely 10-12 people each. The
m o rning session com m e nced with an overview statem ent from Betsy Southerland describing the purpose and goals of the sm all group discussions. She em phasized the im portance of working together to answer the two questions being posed, and asked participants to step away from their
norm a l role as advocates and to participate openly. If anyone had issues of a different nature to discuss with EPA, she and Fred Leutner, Chief of OST’s W a ter Quality Standards Branch, were available at a separate table to answer specific questions.
The schedule and ground rules for the sm all group discussions were then explained by Jan Connery of ERG. Each group had 90 m i nutes to discuss both questions. Two volunteers were needed for each table, a note-taker and a presenter. At the end of the session, the note-taker for each table sum m a rized the group’s discussion on an EPA com m e nt sheet, and the presenter reported the group’s highlights to the other sym posium participants. The two questions (and specific instructions) discussed by each group are listed below, as well as an overall summ a ry of the responses given by all the groups.

4.1 Question 1: What data and analysis should be used to determine an existing use? Instructions:



### S Your answers m a y be different depending on the type of use (i.e., prim ary contact recreation, public water supply, etc.), so please specify which use(s) you are thinking of.

Sy m posium Proceedings Report 1 8 J uly 31, 2002

### S How should current use, current water quality, frequency of use, potential use, historical use, and historical water quality be considered?



### S Are there situations where an existing use has been irrevocably lost? How would a state dem onstrate this, and what would be the new existing use?
Discussion Highlights: Com m e nts Specific to Existing Uses Several groups felt that the existing use concept, especially the 1975 “benchm a rk” date, is confusing and hard to define, therefore EPA needs to give m o re guidance in this area. Exam ples of such com m e nts are as follows:

• C larification is needed regarding the m eaning of certain term s, such as “actually attained” and “occurred.”

• E PA should consider a regulatory m odification to rem ove the existing use concept and in its place determ ine in a form al process the highest and best use of a waterbody. • E xisting uses should be protected at all costs. • T here is no avenue to rem ove an existing use, which could be tem porally or spatially lim ited.

• W ith respect to irrevocably lost uses, no one cited a current exam ple. Many groups felt that the reverse is happening; stream s and even channelized ditches are being rebuilt and restored.

• S om e groups felt that the actual use of a waterbody by hum ans, and the quality of the water should be considered separately when determ ining the existing use.

• T wo groups felt that data should be collected and analyzed in a watershed m a nagem e nt context when identifying existing uses, including site visits, land use, photographs, etc.

• S hould a prohibited (illegal) or restricted use should be considered an existing use? For exam ple, when prim ary contact recreation occurs in an urban area where it is posted as illegal to swim , should this activity drive the criteria? • T here is a need to develop good reference conditions when determ ining existing uses.

• I t is im portant to notify the public when determ ining an existing use in order to get the necessary anecdotal inform ation (there needs to be a critical m a ss of anecdotal inform ation before determ ining existing uses).

• W hen looking at historical data, the quality vari es widely, but anecdotal data is useful. If data is lacking, then a default condition should be generated.

• I n swim m able waters, physical condition should be considered when determ ining existing uses (e.g., swim m i ng in a barge canal is not practicable). Related Com m e nts Because existing uses are so closely tied to designated uses, m a ny of the discussions branched out to other aspects of designated uses, such as the following:
Sy m posium Proceedings Report 1 9 J uly 31, 2002• S everal groups recomm e nded that states establish a hierarchy of preferred data using a weight of evidence approach to determ ine appropriate designated uses (data could be from scientific studies, rigorous surveys, anecdotal data, etc.)

• T he nam i ng of a use and the quality of the use should be in agreem ent (e.g., a healthy trout
com m unity, not just trout in the stream ).

• T he actual use of a waterbody should be protected despite current water quality (e.g., if people swim in a waterbody that does not m eet its bacteria standard, it m u st be brought back into com p liance because people will continue to swim there).

• I f swim m i ng is not appropriate in one location, but there are alternative swimm i ng locations nearby, the latter should be factored into the use designation of the form er.
• F requency of use was often cited as im portant to consider when revising recreational uses.

• I nconsistencies were noted between swim m i ng uses and how drinking water standards are im plem ented.

4.2 Question 2: Changes in use designations described in Clean Water Act Section 101(a)(2) must be justified by satisfying at least one of the six factors at 40 CFR 131.10(g). In your opinion, for w h ich one or tw o factors does EPA most need to provide further clarification, and w h y?

Instructions:



### S Som e factors can be applied to m u ltiple uses, so please specify which use(s) you are thinking of.



### S Are there other parts of the UAA process that present particular difficulties (e.g., assessing a waterbody’s physical, chem ical, or biological characteristics; involving f e deral, state, and local constituencies in the process, etc.)? How can EPA help?

As a point of reference, 40 CFR 131.10(g) as provided in the Federal Register states: Sy m posium Proceedings Report 2 0 J uly 31, 2002(g) States may remove a designated use which is not an existing use, as defined in § 131.3, or establish sub-categories of a use if the State can demonstrate that attaining the designated use is not feasible because: (1) Naturally occurring pollutant concentrati ons prevent the attainment of the use; or (2) N atural, ephemeral, intermittent or low flow c onditions 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 wat er conservation requirements to enable uses to be met; or (3) H uman caused conditions or sources of polluti on prevent the attainment of the use and cannot be remedied or would cause more environmental dam age to correct than to leave in place; or (4) D ams, diversions or other types of hydrologic m odifications 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; or (5) P hysical conditions related to the natural featu res 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 (6) C ontrols more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact.

Discussion Highlights: As with any large group, there was disagreem ent regarding the adequacy of guidance provided by 40 CFR 131.10 (g). Only one group felt that the six factors were sufficiently detailed yet broad enough to allow states to justify either rem oving or not rem oving a use (with additional guidance provided on a case-by-case basis). However, the m a jority of the groups felt that one or m o re factors are too broad and need additional cl arification from EPA. In particular, factor 3 (hum an caused conditions) and factor 6 (econom ic and social im pact) require the m o st clarification from EPA. Exam ples of specific com m e nts include:

• What does “cannot be rem e died” m ean (factor 3) and how do you comm unicate this to the public?
• I t is often difficult and tim e consum ing to estim ate the econom ic and social im pacts (factor 6) of a designated use, especially for TMDLs. Sy m posium Proceedings Report 2 1 J uly 31, 2002• W hat is “naturally occurring” (factor 1)?

• T here are concerns and som e confusion with conflicting inform ation from EPA on how to protect ephem e ral and interm ittent stream s (f actor 2).
• W hat does “feasible” m ean (factor 4)?
• T he “physical habitat” aspect of factor 5 needs to be clarified. Other concerns raised during the sm all group session include the need for guidance in low and high flow conditions (especially with wet-weathe r events when recreation can’t be supported), and other site-specific conditions. One group raised the question, if the water can’t be restored, should we retain the use and change the criteria? Overall, m a ny groups felt that states need sufficient guidance and the necessary financial resources from EPA to achieve attainm e nt (including m onitoring problem areas). Future guidance on UAAs could include Standard Operati ng Procedures which would detail what needs to be subm itted for a UAA. Such stream lined guidance would enable states and authorized tribes to m o re ef f i ciently utilize their resources.

5.0 ABSTRACT PRESENTATIONS - FOCUS ON CASE STUDIES AND NEW APPROACHES On the afternoon of the second day, seven speakers gave presentations based on abstracts they had subm itted prior to the sym posium

. A brief sum m a ry highlighting the key points of each presentation is provided below, and a copy of each abstract is available on EPA’s web site at: http://www.epa.gov/waterscience/standards/sym posium / abstracts/

5.1 Richard Meyerhoff, CDM Evaluating Use Attainment in Effluent-Dependent Waters Research conducted by Mr. Meyerhoff as part of the Arid W e st W a ter Quality Research Project (W QRP) involved developm ent of appropriate us es and water quality standards for effluentdependent and ephem e ral waters. In these arid regions of the United States, a significant num ber of stream s are effluent-dependent and are charact erized by constant change and diverse riparian Sy m posium Proceedings Report 2 2 J uly 31, 2002com m unities. Under these conditions, it is difficult to evaluate use attainability because of the characteristics of the system s and difficulty in defining reference conditions. The m e thods used to def i ne use attainm e nt in these system s can include the designation of m i nim u m water quality requirem e nts or the recognition of benefits created in these ecosystem s by the characteristic fluctuations in water volum e. Finally, a holistic watershed approach should be utilized that includes riparian habitats and terrestrial com m unities.
5.2 Robert Gensemer, ENSR InternationalEvaluating Water Quality Criteria for Designated Uses in Ephemeral and EffluentDependent Watercourses of the Arid West As part of the Arid W e st W a ter Quality Res earch Project, four existing and proposed federal Am bient W a ter Quality Criteria (AW Q C) (copper, selenium , diazinon, and copper) were evaluated for their relevance to the attainm e nt of designated uses in these unique effluentdependent aquatic ecosystem s. Results obtained indicate that values for these criteria seem to be generally appropriate for use in effluent-dom inated system s in the arid west. However, the unique nature of these system s m a y call into question the straightforward application of AW QC to effluent-dom inated system s. Furtherm ore, it m i ght be possible that the default frequency of allowed excursions could be reduced (i.e., to less than once every three years) owing to the relatively rapid recovery characteristics of aquatic com m unities in these ecosystem s (m odels also could be utilized). These approaches could also be extended to a national f r am ework.

5.3 Paul Frohardt, Colorado Water Quality Control Commission Recreational Use Designations in Colorado In 2000, the Colorado W a ter Quality Control Com m i ssion adopted significant refinem e nts to the state regulatory provisions regarding a dopting recreational use designations for state surface waters. Based on this im plem entation, the three prim ary contact recreational existing uses in Colorado are: existing prim ary contact (the default condition), potential prim ary contact, and secondary contact. In order to determ ine these existing uses, citizens are questioned about prim ary contact uses, and if no use is identified, a UAA is utilized. Other issues still need to be addressed in this process, including current and future access conditions, seasonal and recreational use designations, and assessm ent of uses under varying flow conditions. Sy m posium Proceedings Report 2 3 J uly 31, 20025.4 Heather Lamberson, Los Angeles County Sanitation Districts The Lower San Gabriel River Watershed: The Need for Use Subcategories The lower San Gabriel River and its tributaries have been designated with a variety of existing, interm ittent and potential beneficial uses, incl uding contact recreation (REC-1) and non-contact recreation (REC-2). The REC-1 use is def i ned in the W a ter Quality Control Plan as “uses of water for recreational activities involving body contact with water, where ingestion of water is reasonably possible. The Sanitation Districts of Los Angeles County contend that the REC-1 use is inappropriate in m o st (if not all) of the waterbodies in the lower San Gabriel River watershed, either due to access restrictions or due to the fact that the waterbodies are dry. Instead, the Regional Board wants to designate the REC-2 use, or else refine the use categories and develop additional subcategories. Barriers to this m odification include difficult and unclear EPA requirem e nts, public perceptions, and per ception by regulators that UAAs are unlikely to succeed. To resolve these issues, the Sanitation Districts think EPA should support refining and developing site-specific criteria, m a ke the UAA process workable, and approve the refined designated uses once adopted by the Regional Board.

5.5 Lester Stumpe, Northeast Ohio Regional Sew er District Development of Targets, Indicators and a Management Model for Improving Aquatic Life Uses in Urban Streams – A Work in Progress In response to EPA’s guidance docum ent, “Guidance: Coordinating CSO Long-term Planning with W a ter Quality Standards Reviews,” m a jor m unicipal m a nagem e nt agencies in Ohio have com e together to develop a m odel to provide a basis for developing an Ohio urban stream subcategory for aquatic life uses. The conceptual m odel seeks to integrate the explanatory variables of land use im pacts and load im pacts with the dependent variable of biotic integrity. The m odel suggests a need to separately explore variables related to the watershed scale and those related to stream corridor characteristics. It also suggests there m a y be a case for urban criteria that vary with the condition of the landscape. This m odel will be utilized to set a baseline condition of what designated use is attainable in large Ohio urban stream s. However, the State of Ohio, with a large biological databa se, will have a tough task of designating an urban use subcategory. In conclusion, there will still be a need for inquiry into the processes and issues of

local watersheds in addition to f l exibility by EPA in developing these processes. Sy m posium Proceedings Report 2 4 J uly 31, 20025.6 Tamim Younos, Senior Research Scientist and Associate Director, Virginia Water Resources Research Center Data Needs to Determine Designated Use for Benthic Impairment: A Virginia Case Study
In Virginia, all waters are designated for the following uses: recreational (e.g., swimm i ng and boating); support of aquatic life; and production of edible and m a rketable natural resources (e.g., fishing and shell fishing). At present, 111 stream segm ents (455 m iles) are included in Virginia’s 303(d) list because of benthic im pairm e nts. Since all waters in Virginia are designated f o r m u ltiple uses, it is critical to determ ine the existing use(s) of a stream bef o re it is listed as im paired, and thus the need for a UAA.
The different com ponents of a benthic UAA were presented (flow chart), including the potential causes of im pairm e nt, existing anthropogenic eff ects, socio-econom ic analyses, and stakeholder negotiations. The Stroubles Creek watershed was described in great detail as a case study, including sources of im pairm e nt. The benthic UAA flow chart was then applied for the Stroubles Creek watershed. Based on the flow ch art, TMDL calculations and m odification of the use are not practical because of the high uncertainty involved with their determ ination. An alternative approach involves adaptive m a nagem e nt, a procedure in which im paired areas are restored slowly and then m onitored. Managem e nt strategies can then be adapted to adjust for im provem e nts or relapses in restoration.

5.7 William Kreutz berger and Thomas Dupuis, CH2M HILL What are We Trying to Protect?: Beneficial Use Changes in Agricultural Watersheds
The Lower Boise River watershed is a com p lex network of natural drainages and m a n-m a de storage f acilities and irrigation canals/drains. As part of the TMDL process in this watershed, a beneficial use evaluation was conducted on three tr ibutaries to the River that function to convey irrigation water. These ditches are utilized throughout the irrigation season and were designated as supporting salm onides and prim ary contact recreation. To determ ine existing and attainable beneficial uses, physical, biological, and chem i cal param e ters were characterized in this watershed and it was determ ined that habitat conditions were unable to support salm onid and other cold water species year round. Since these are m odified system s, less stringent siteSy m posium Proceedings Report 2 5 J uly 31, 2002specific criteria were developed to protect the aquatic com m unity existing in the system when irrigation is a factor. Changes in the benefici al use designation allowed regulators to conclude that the m odified aquatic life use was not im paired and that TMDLs were not necessary for protection or restoration.

6.0 CONCLUDING REMARKS At the conclusion of the sym posium , the following sum m a ry com m e nts were provided by Betsy Southerland. The purpose of the sym posium was to hear from those individuals who are involved with identifying or acting upon priority issues related to designated uses. Based on the presentations and discussions at the sym posium , EPA’s f i rst priority will be to develop guidance f o r states and tribes on recreational use designations. There are several reasons to have this as a top priority. First, everyone agreed that use designations drive TMDLs, and a large percentage of TMDLs are being developed for bacterial violations wh ich are causing nonattainm e nt of prim ary contact recreational uses. Secondly, everyone agreed on the need for m o re refined designated uses with
m o re differentiated criteria. Several presentations em phasized the need to look at subcategories of recreational use. Finally, everyone agreed that it is im portant to all of the water program s to get the designated use correct. Many participants com m e nted on the difficulty of designating doing this, especially with regard to recreation. In addition, EPA will address the following issues related to recreational uses:

• H ow m a ny tim es m u st swim m i ng occur before it is considered an existing use (frequency issue)?

• H ow to handle prohibited use issues where swimm i ng is not allowed due to hazardous conditions

• H ow to deal with recreation in large communities with CSOs and in waters affected by nonhum an sources of pollution (livestock, avian, etc.)
• H ow valuable is the use to the com m unity?
• I s the use an environm ental justice issue?

Sy m posium Proceedings Report 2 6 J uly 31, 2002W h en developing the guidance, EPA m u st not forget CFR 131.10(h) whereby “States may not remove designated uses if: (1) they are existing uses, unless a use requiring more stringent criteria is added; or (2) such uses will be attained by implementing effluent limits . . . and costeffective and reasonable best management practices for nonpoint source control.” There is also a need for EPA to ensure that states are fulfilling their obligation to upgrade use designations (CFR 131.20) for waters that do not currently have a fishable/swim m abe designation. Finally, there is a concern about how to collect good data to support appropriate use designations; specifically how to collect anecdot al or other historical data on existing uses. There is also som e confusion about what needs to be subm itted for a UAA, to avoid trial and
error. Upon com p letion of draft guidance on recreational use designations, EPA will begin to develop sim ilar guidance on issues related to other use designations, such as aquatic life.

Sy m posium Proceedings Report 2 7 J uly 31, 2002