Water Quality: EPA Should Improve Guidance and Support to Help States Develop Standards That Better Target Cleanup Efforts
Released: 2003-06-19T00:00:00

Letter

Background

Designated uses are the purposes that a state’s waters are intended to serve. Some waters, for example, serve as a drinking water source, while others are designated to serve as a source of recreation (swimming or boating) and/or to support aquatic life. The state must also develop water quality criteria, which specify pollutant limits that determine whether a water body’s designated use is achieved. These water quality criteria can be expressed, for example, as the maximum allowable concentration of a given pollutant such as iron, or as an important physical or biological characteristic that must be met, such as an allowable temperature range.

To develop water quality criteria, states rely heavily on EPA-developed “criteria documents.” These documents contain the technical data that allow states to develop the necessary pollutant limits. 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 also required to periodically review both their waters’ designated uses and associated criteria, and make changes as appropriate. Before those changes can take effect, the state must submit them to EPA and obtain approval for them. EPA is required to review and approve or disapprove standards changes proposed by a state within 60 to 90 days.

Figure 1 illustrates how states use water quality standards to make key decisions on which waters should be targeted for cleanup. States generally determine if a water body’s designated use is 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 program that specifies how compliance with the standard can be achieved; and then eventually implement a cleanup plan. Thus, as noted in 2001 by the National Academy of Sciences’ National Research Council, 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.

States’ Practices in Changing Designated Uses Vary Widely

We asked the states to report the total number of designated use changes they adopted from 1997 through 2001. While some states made no use changes, others made over 1,000 changes. At the same time, nearly all states told us that designated use changes are needed. Twenty-eight 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 over 50 percent of their water bodies need use changes.

These percentages suggest 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 the state made no use changes from 1997 through 2001, the state needs designated use changes in over 90 percent of its basins.

Many states explained their current need to make designated use changes by noting, among other things, that many of the original use decisions they made during the 1970s were not based on accurate data. For example, 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.” As states have collected more data in ensuing years, the new data have provided compelling evidence that their uses are either under- or over-protective.

In addition to changing designated uses for individual waters to reflect the new data, some states are seeking to develop more subcategories of designated uses to make them more precise and reflective of their waters’ actual 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. Developing these subcategories of uses has the potential to result in more protective uses in some cases, and less protective uses in others.

EPA Assistance and Guidance Needed to Help States Make Defensible Designated Use Changes

According to responses to our survey, a key reason state officials have not made more of the needed designated use changes is the uncertainty many of them face over the circumstances in which use changes are acceptable to EPA and the evidence needed to support these changes. 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 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. The results of a state’s analysis must be included in its 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.

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 laboratory work. In their responses to our survey, states reported that the UAAs they conducted in the past 5 years have cost them anywhere from $100 to $300,000.

In 1994, EPA published guidance regarding use changes that specifies the reasons states may remove a designated use. Nonetheless, our survey shows that many states are still uncertain about 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 on 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.

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. Of particular note, officials from 9 of EPA’s 10 regional offices told us that states need better guidance on when designated use changes are appropriate 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.

In this connection, an official from the San Francisco regional office suggested that headquarters develop a national clearinghouse of approved use changes to provide examples for states and regions of what is considered sufficient justification for a use change. A 2002 EPA draft strategy also recognized that this type of clearinghouse would be useful to the states. The strategy calls on EPA’s Office of Science and Technology to conduct a feasibility study to identify ways to provide a cost-effective clearinghouse. According to EPA, the agency plans to conduct the feasibility study in 2004.

EPA headquarters officials have also formed a national working group to address the need for guidance. According to the officials, the group plans to develop outreach and support materials addressing nine areas of concern for recreational uses that states have identified as problematic. In addition, the group plans to develop a Web page that includes examples of approved recreational use changes by the end of 2004.

The national work groups’ efforts may also help address another concern cited by many states—a lack of consistency among EPA’s regional offices on how they evaluate proposals by their states to change designated uses. Some states’ water quality officials noted in particular that the data needed to justify a use change varies among EPA regions. For example, Rhode Island’s response asserted that the state’s EPA regional office (Boston) requires a much greater burden of proof than EPA guidance suggests or than other regional offices require. The response said that EPA guidance on UAAs should be more uniformly applied by all EPA regional offices. Several EPA regional officials acknowledged the inconsistency and cited an absence of national guidance as the primary cause.

EPA headquarters officials concurred that regional offices often require different types and amounts of data to justify a use change and noted that inconsistency among EPA regional offices’ 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.

EPA Has Not Developed and Updated Key Criteria Documents

While EPA has developed and published criteria documents for a wide range of pollutants, approximately 50 percent of water quality impairments nationwide concern pollutants for which there are no national numeric water quality criteria. 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.

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, according to our analysis of EPA data, sediments, nutrients, and pathogens are responsible for about 40 percent of impairments nationwide. (See fig. 2.) Not surprisingly, many states responding to our survey indicated that these pollutants are among those for which numeric criteria are most needed.

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. 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, and an essentially flat budget accompanied by a sharply increased workload. EPA also explained that for several decades, the agency 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.

States Need EPA Assistance to Establish Criteria That Can Be Compared to Reasonably Obtainable Monitoring Data

Even when EPA has developed criteria recommendations, 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. Our survey asked states about 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 specifying that samples must be collected on 4 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 set priorities for impaired waters.

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 state might modify a criterion, for example, if new information becomes available that better reflects local variations in pollutant chemistry and corresponding biological effects.

In response to our survey, 43 states reported that it is “somewhat” to “very” difficult to modify criteria. Not surprisingly, a vast majority of states reported that a lack of resources (including data, funding, and 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. Significantly, however, more than half of the states reported that EPA’s approval process serves as a barrier when they try to modify their criteria. In this connection, respondents also noted that EPA’s 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. Our report concluded that 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.

Improvements to Designated Uses and Criteria Could Have a Large and Cumulative Impact on Impaired Waters Lists

Because designated uses and criteria constitute states’ water quality standards, a change in either is considered a standards modification. We first asked the states whether an improvement in the process of changing designated uses would result in different water bodies being slated for cleanup within their states, and 22 states reported affirmatively. We then asked the states whether an improvement in the process of modifying criteria would result in different water bodies being slated for cleanup within their states, and 22 states reported affirmatively. As figure 3 shows, when we superimposed the states’ responses to obtain the cumulative effect of improving either designated uses or the process of criteria modification, 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.

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, nor does it reflect states’ ongoing adoption of nutrient criteria. As these criteria are issued in coming years, states will adopt numeric criteria for these key pollutants, which, in turn, will likely affect which waters the states target for cleanup.

To help ensure that both designated uses and water quality criteria serve as a valid basis for decisions on which of the nation’s waters should be targeted for cleanup, we recommended that the Administrator of EPA take several actions to strengthen the water quality standards program. To improve designated uses, we recommended that EPA (1) develop 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 (2) follow through on its plans to assess the feasibility of establishing a clearinghouse of approved designated use changes by 2004. To improve water quality criteria, we recommended that EPA (1) set a time frame for developing and publishing nationally recommended sedimentation criteria, (2) develop alternative, scientifically defensible monitoring strategies that states can use to determine if water bodies are meeting their water quality criteria, and (3) develop guidance and a training strategy that will help EPA regional staff determine the scientific defensibility of proposed criteria modifications.

According to officials with EPA’s Water Quality Standards Program, the agency agrees with our recommendations, has taken some steps to address them, and is planning additional action. They note that, thus far, EPA staff have already met with a large number of states to identify difficulties the states face when attempting to modify their designated uses. The officials also noted that, among other things, they plan to release support materials to the states regarding designated use changes; develop a Web page that provides examples of approved use changes; and develop a strategy for developing sedimentation criteria by the end of 2003.

Mr. Chairman, this completes my prepared statement. I would be happy to respond to any questions you or other members of the Subcommittee may have at this time.

Contact and Acknowledgments

For further information, please contact John B. Stephenson at (202) 512- 3841. Individuals making key contributions to this testimony included Steve Elstein and Barbara Patterson. Other contributors included Leah DeWolf, Laura Gatz, Emmy Rhine, Katheryn Summers, and Michelle K. Treistman.

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