oversight

Water Quality: Improved EPA Guidance and Support Can Help States Develop Standards That Better Target Cleanup Efforts

Published by the Government Accountability Office on 2003-01-30.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

               United States General Accounting Office

GAO            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
               a
                                               January 2003


                                               WATER QUALITY

                                               Improved EPA Guidance and Support
Highlights of GAO-03-308, a report to          Can Help States Develop Standards That
the Chairman, Subcommittee on Water
Resources and Environment, Committee           Better Target Cleanup Efforts
on Transportation and Infrastructure,
House of Representatives




Water quality standards are                    The extent to which states are changing designated uses varies considerably.
composed of designated uses and                Regardless of the number of use changes states have made to date, nearly
criteria. These standards are                  all states report that some portion of the water bodies within their states
critical in making accurate,                   currently need changes to their designated uses. Among the key reasons
scientifically based determinations            these needed use changes have not been made is states’ uncertainty over the
about which of the nation’s waters
are in need of cleanup. To assess
                                               circumstances in which use changes are acceptable to EPA and the evidence
EPA and states’ actions to improve             needed to support those changes.
standards, the Chairman of the
Subcommittee on Water Resources                As required, EPA has developed and published criteria for a wide range
and Environment asked GAO to                   of pollutants. However, EPA has not developed criteria for sedimentation
determine the extent to which                  or finalized criteria for nutrients—the pollutants that, according to EPA
(1) states are changing designated             data, account for a relatively large share of the nation’s impaired waters.
uses when necessary and EPA is                 Even when national criteria do exist, some states have difficulty establishing
assisting the states toward that end           their criteria in such a way that they can be compared with reasonably
and (2) EPA is updating its criteria           obtainable monitoring data. In addition, a vast majority of states find it
documents and assisting states in              difficult to modify their existing criteria when warranted by new
establishing criteria that can be
compared with reasonably
                                               information or other circumstances.
obtainable monitoring data.
                                               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
GAO recommends that the                        being slated for cleanup, and 22 states reported that an improvement in the
Administrator, EPA (1) provide                 process of modifying criteria would have that effect. Superimposing the
additional guidance regarding use              states’ responses indicates that 30 states would have different water bodies
changes, (2) follow through on                 slated for cleanup with an improvement in the process of modifying
plans to assess the feasibility of             standards.
establishing a clearinghouse of
approved use changes, (3) set a
time frame for developing                      States Reporting That Different Water Bodies Would Be Slated for Cleanup if the Process
                                               of Changing Standards Were Improved
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.
www.gao.gov/cgi-bin/getrpt?GAO-03-308.

To view the full report, including the scope
and methodology, click on the link above.
For more information, contact John B.
Stephenson at (202) 512-6225 or                Note: GAO analysis of state data.
stephensonj@gao.gov.
Contents



Letter                                                                                           1


Executive Summary                                                                                3
                       Purpose                                                                   3
                       Background                                                                4
                       Results in Brief                                                          5
                       Principal Findings                                                        8
                       Recommendations                                                          12
                       Agency Comments                                                          12


Chapter 1                                                                                       14
                       Designated Uses                                                          14
Introduction           Water Quality Criteria                                                   16
                       Standards Review and Revision                                            17
                       Importance of Accurate Water Quality Standards in Identifying
                         Polluted Waters                                                        18
                       Objectives, Scope, and Methodology                                       21


Chapter 2                                                                                       23
                       States Thus Far Report Wide Variation in the Extent to Which They
States’ Practices in     Change Designated Uses                                                 23
Changing Designated    Future Use Changes May Dwarf Those Made to Date                          25
                       Lack of Clear Guidance Complicates States’ Efforts to Make
Uses Vary Widely         Defensible Designated Use Changes                                      29
                       EPA Regional Approaches Concerning States’ Designated Use
                         Changes Are Inconsistent                                               31
                       Different Water Bodies Would Be Slated for Cleanup If
                         Improvements Were Made                                                 33
                       Conclusions                                                              35
                       Recommendations                                                          35
                       Agency Comments and Our Evaluation                                       36




                       Page i                                              GAO-03-308 Water Quality
                              Contents




Chapter 3                                                                                                37
                              Key Criteria Documents Have Not Been Developed by EPA                      37
States Need Criteria for      Many States Cannot Reasonably Monitor to Determine if Criteria Are
Some Pollutants                 Being Met                                                                40
                              States Report Difficulty in Modifying Criteria                             42
and Assistance in             Improving Criteria Would Result in Different Waters Being Slated for
Applying and                    Cleanup                                                                  45
Modifying                     Potentially Large Cumulative Impact of Both Designated Uses
                                and Criteria on Impaired Waters Lists                                    46
Existing Criteria             Conclusions                                                                48
                              Recommendations                                                            49
                              Agency Comments and Our Evaluation                                         49


Appendixes
               Appendix I:    EPA’s Water Quality Standards Program Budget from 1992
                              through 2002                                                               52
               Appendix II:   GAO Survey of State Water Quality Standards Programs                       53
              Appendix III:   Comments from the Environmental Protection Agency                          71
              Appendix IV:    GAO Contacts and Staff Acknowledgments                                     74



Table                         Table 1: EPA Water Quality Standards Program Budget Amounts
                                       from 1992 through 2002                                            52


Figures                       Figure 1: States Reporting That Different Water Bodies Would Be
                                        Slated for Cleanup if Improvements Were Made to the
                                        Process of Changing Standards                                     7
                              Figure 2: Number of Designated Use Changes Reported by Each
                                        State from 1997 through 2001                                      9
                              Figure 3: Water Quality Standards as the Basis for Cleanup
                                        Decisions                                                        20
                              Figure 4: Number of Designated Use Changes Reported by Each
                                        State from 1997 through 2001                                     24
                              Figure 5: Number of States Reporting Various Percentages of Their
                                        Water Bodies Needing Designated Use Changes                      26
                              Figure 6: States’ Responses to Whether Different Water Bodies
                                        Would Be Slated for Cleanup if the Process for Changing
                                        Designated Uses Were Improved                                    34



                              Page ii                                               GAO-03-308 Water Quality
Contents




Figure 7: Percent of Impairments Nationwide Caused by Various
           Pollutants                                                                      38
Figure 8: States’ Responses on the Extent to Which Their Criteria
           Can Be Used to Determine Whether Their Water Bodies
           Are Impaired                                                                    41
Figure 9: States Reporting the Ease or Difficulty of Modifying
           Water Quality Criteria                                                          43
Figure 10: States Reporting That Different Water Bodies Would Be
           Slated for Cleanup if Improvements Were Made to the
           Process of Changing Standards                                                   47




Abbreviations

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

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Page iii                                                         GAO-03-308 Water Quality
Page iv   GAO-03-308 Water Quality
A
United States General Accounting Office
Washington, D.C. 20548



                                    January 30, 2003                                                                Leter




                                    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.




                                    Page 1                                                  GAO-03-308 Water Quality
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,




John B. Stephenson
Director, Natural Resources
 and Environment




Page 2                                                GAO-03-308 Water Quality
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)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.)



             1
               ASIWPCA is an independent, nonpartisan organization of state and interstate water
             program managers.




             Page 3                                                          GAO-03-308 Water Quality
             Executive Summary




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.




             Page 4                                                  GAO-03-308 Water Quality
                   Executive Summary




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



                   Page 5                                                 GAO-03-308 Water Quality
Executive Summary




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.




Page 6                                                   GAO-03-308 Water Quality
                                          Executive Summary




Figure 1: States Reporting That Different Water Bodies Would Be Slated for Cleanup if Improvements Were Made to the Process
of Changing Standards




                                                   No          (5)

                                                   Don't know (16)

                                                   Yes        (30)


Source: GAO.

                                          Note: GAO analysis of state data.




                                          Page 7                                                    GAO-03-308 Water Quality
                           Executive Summary




Principal Findings

States’ Practices in       As figure 2 illustrates, states vary widely in the extent to which they have
Changing Designated Uses   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
Vary Widely
                           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.




                           Page 8                                                GAO-03-308 Water Quality
                                        Executive Summary




Figure 2: Number of Designated Use Changes Reported by Each State from 1997 through 2001




                                                 0 - 20 (32)

                                                 21 - 100 (12)

                                                 101 - 1,127 (7)


Source: GAO.

                                        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.




                                        Page 9                                                                GAO-03-308 Water Quality
                         Executive Summary




                         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     Water quality criteria are the measures by which states determine if
for Some Pollutants      designated uses are being attained, and therefore they play an equally
                         important role in identifying impaired waters for cleanup. If nationally
and Assistance in
                         recommended criteria do not exist for key pollutants or if states have
Applying and Modifying   difficulty using or modifying existing criteria, states may not be able to
Existing Criteria        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,



                         Page 10                                               GAO-03-308 Water Quality
Executive Summary




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



Page 11                                                GAO-03-308 Water Quality
                  Executive Summary




                  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



                  Page 12                                                 GAO-03-308 Water Quality
Executive Summary




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.




Page 13                                              GAO-03-308 Water Quality
Chapter 1

Introduction                                                                                        Chapte1
                                                                                                          r




                  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;




                  Page 14                                                  GAO-03-308 Water Quality
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Introduction




• 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.




Page 15                                                 GAO-03-308 Water Quality
                         Chapter 1
                         Introduction




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.1 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.


                         1
                           According to EPA, there is a growing recognition of the importance of biological criteria in
                         water quality protection.




                         Page 16                                                            GAO-03-308 Water Quality
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                       Introduction




Standards Review and   Under the Clean Water Act, states are required to review their water
                       quality standards at least every 3 years, make revisions as needed, and
Revision               submit any changes to EPA for review and approval (or disapproval).2 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.3 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 decision4 and
                       subsequent regulations, commonly referred to as the Alaska rule, declared
                       that water quality standards are not effective until approved by EPA.




                       2
                         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.
                       3
                         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.
                       4
                           Alaska Clean Water Alliance v. Clark, No. C96-1762R (W.D. Wash. July 8, 1997).




                       Page 17                                                            GAO-03-308 Water Quality
                          Chapter 1
                          Introduction




Importance of             States use water quality standards as the benchmark against which they
                          identify water quality problems caused by a variety of factors, such as
Accurate Water Quality    improperly treated wastewater discharges; runoff or discharges from
Standards                 active or abandoned mining sites; sediment, fertilizers, and chemicals from
                          agricultural areas; and erosion of stream banks caused by improper grazing
in Identifying Polluted   practices. Water quality standards also support other programs aimed at
Waters                    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.5




                          5
                           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.




                          Page 18                                                          GAO-03-308 Water Quality
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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.6




6
  National Research Council, Assessing the TMDL Approach to Water Quality Management
(Washington, D.C.: National Academy Press, 2001).




Page 19                                                     GAO-03-308 Water Quality
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Introduction




Figure 3: Water Quality Standards as the Basis for Cleanup Decisions


                Establish water
               quality standards



                   Collect
                monitoring data




                   Compare
                monitoring data
               with water quality
                   standards




                 Is water body            Yes      Water body is not
                    meeting                        impaired and no
                  standards?                       TMDL is needed




                           No


                 Water body is
               impaired; Clean
                  Water Act
                requires TMDL




                Develop TMDL


Source: GAO.




Page 20                                                   GAO-03-308 Water Quality
                         Chapter 1
                         Introduction




Objectives, Scope, and   As agreed with the Chairman, Subcommittee on Water Resources and
                         Environment, House Committee on Transportation and Infrastructure, the
Methodology              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.




                         Page 21                                                 GAO-03-308 Water Quality
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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.




Page 22                                              GAO-03-308 Water Quality
Chapter 2

States’ Practices in Changing Designated Uses
Vary Widely                                                                                            Chapte2
                                                                                                             r




                        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         We asked the states to report the total number of designated use changes
                        they adopted from 1997 through 2001. Their responses indicated that the
Report Wide Variation   extent to which states have made use changes varies widely. As figure 4
in the Extent to        illustrates, 31 states and the District of Columbia reported that they made
                        somewhere between no designated use changes to up to 20 use changes
Which They Change       between 1997 and 2001, 12 states reported that they made between 21 and
Designated Uses         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.




                        Page 23                                               GAO-03-308 Water Quality
                                        Chapter 2
                                        States’ Practices in Changing Designated
                                        Uses Vary Widely




Figure 4: Number of Designated Use Changes Reported by Each State from 1997 through 2001




                                                  0 - 20 (32)

                                                  21 - 100 (12)

                                                  101 - 1,127 (7)


Source: GAO.
                                        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.




                                        Page 24                                                               GAO-03-308 Water Quality
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                     States’ Practices in Changing Designated
                     Uses Vary Widely




Future Use Changes   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,
May Dwarf Those      28 states reported that between 1 to 20 percent of their water bodies need
Made to Date         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.1




                     1
                       EPA, An Assessment of the Water Quality Standards Development and Review Process
                     (Washington, D.C.: October 2000).




                     Page 25                                                     GAO-03-308 Water Quality
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States’ Practices in Changing Designated
Uses Vary Widely




Figure 5: Number of States Reporting Various Percentages of Their Water Bodies
Needing Designated Use Changes

50    Number of states




40




30
                28




20




10

                          11
                                              6
                                    5

        1
 0


      0%        1-20%    21-50%     51-100% Don’t
                                            know
      Percent of water bodies that need designated use changes
Source: GAO.

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



Page 26                                                          GAO-03-308 Water Quality
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States’ Practices in Changing Designated
Uses Vary Widely




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



Page 27                                                GAO-03-308 Water Quality
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States’ Practices in Changing Designated
Uses Vary Widely




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.




Page 28                                                 GAO-03-308 Water Quality
                         Chapter 2
                         States’ Practices in Changing Designated
                         Uses Vary Widely




Lack of Clear Guidance   States have latitude under the Clean Water Act in determining whether
                         their designated uses need to be changed. This latitude, along with different
Complicates States’      state philosophies, helps to explain, in part, their behavior thus far in
Efforts to Make          making such changes. However, our survey shows that states have not
                         made all of the use changes they believe are needed. According to the
Defensible Designated    states, some reasons needed designated use changes have not been made
Use Changes              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    EPA regulations specify that in order to remove a designated use, states
UAAs                     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.2 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

                         2
                             EPA Water Quality Standards Handbook—Second Edition.




                         Page 29                                                    GAO-03-308 Water Quality
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                    States’ Practices in Changing Designated
                    Uses Vary Widely




                    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.3 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    EPA regional officials acknowledged the uncertainty states frequently
State Uncertainty   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
Regarding UAAs
                    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


                    3
                      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.




                    Page 30                                                          GAO-03-308 Water Quality
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                     Uses Vary Widely




                     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         EPA’s regional offices play an important role, both in assisting states in
                     their efforts to ensure that their waters are properly designated and
Approaches           ultimately in either approving or disapproving proposed designated use
Concerning States’   changes. We found that regional assistance to the states varies but that
                     much of this variation reflects the fact that some states request more
Designated Use       assistance than others. Of greater concern to some states than the amount
Changes Are          of assistance provided by EPA are the different “burdens of proof” applied
Inconsistent         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.




                     Page 31                                                 GAO-03-308 Water Quality
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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.




Page 32                                               GAO-03-308 Water Quality
                         Chapter 2
                         States’ Practices in Changing Designated
                         Uses Vary Widely




Different Water Bodies   Appropriate designated uses play a key role in states’ determinations of
                         impaired water bodies. Without them, states cannot make well-informed
Would Be Slated for      cleanup decisions under the TMDL program, and states risk focusing
Cleanup If               resources on the wrong water bodies and/or exposing their citizens to
                         health and environmental risks. Given the barriers to changing designated
Improvements Were        uses that states face, some EPA regional officials reported that some states
Made                     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.




                         Page 33                                                 GAO-03-308 Water Quality
Chapter 2
States’ Practices in Changing Designated
Uses Vary Widely




Figure 6: States’ Responses to Whether Different Water Bodies Would Be Slated for
Cleanup if the Process for Changing Designated Uses Were Improved

50       Number of states




40




30


         22

20
                                  16

                   12

10


                                                 1
    0
        s



                 No




                                              e
                             ow
        Ye




                                            ns
                             kn



                                            po
                           n't



                                        res
                        Do



                                       No




         State responses
Source: GAO.

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.4 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.




4
 Officials from the other three regional offices indicated that they did not know whether
different water bodies would require TMDLs.




Page 34                                                          GAO-03-308 Water Quality
                  Chapter 2
                  States’ Practices in Changing Designated
                  Uses Vary Widely




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



                  Page 35                                                GAO-03-308 Water Quality
                      Chapter 2
                      States’ Practices in Changing Designated
                      Uses Vary Widely




                      • 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   EPA shares our concern that waters are inappropriately slated for TMDL
                      development as a result of inappropriate use designations. The agency
Our Evaluation        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.




                      Page 36                                                GAO-03-308 Water Quality
Chapter 3

States Need Criteria for Some Pollutants
and Assistance in Applying and Modifying
Existing Criteria                                                                                                Chapte3
                                                                                                                       r




                     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         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
Documents Have       latest scientific knowledge. As of May 2002, EPA had issued national
Not Been Developed   numeric criteria for 165 pollutants, of which 101 are for priority toxic
                     pollutants.1 Yet as large as this number of pollutants may be, approximately
by EPA               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

                     1
                       The Clean Water Act includes specific requirements for priority toxic pollutants, which are
                     known to be toxic at low levels.




                     Page 37                                                           GAO-03-308 Water Quality
                                                                       Chapter 3
                                                                       States Need Criteria for Some Pollutants
                                                                       and Assistance in Applying and Modifying
                                                                       Existing Criteria




                                                                       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

16     Percent of impairments nationwide


14


12


10


 8


 6


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       Pollutant
Source: GAO.

                                                                       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



                                                                       Page 38                                                                                                     GAO-03-308 Water Quality
Chapter 3
States Need Criteria for Some Pollutants
and Assistance in Applying and Modifying
Existing Criteria




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.




Page 39                                                 GAO-03-308 Water Quality
                        Chapter 3
                        States Need Criteria for Some Pollutants
                        and Assistance in Applying and Modifying
                        Existing Criteria




Many States Cannot      Even in cases where criteria have been published by EPA, states reported
                        that the criteria cannot always be effectively used because water quality
Reasonably Monitor to   officials sometimes cannot perform the kind of monitoring, as specified in
Determine if Criteria   the criteria documents, that must be used to ascertain whether the water
                        body is meeting standards. While most states face long-standing challenges
Are Being Met           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.




                        Page 40                                                 GAO-03-308 Water Quality
Chapter 3
States Need Criteria for Some Pollutants
and Assistance in Applying and Modifying
Existing Criteria




Figure 8: States’ Responses on the Extent to Which Their Criteria Can Be Used to
Determine Whether Their Water Bodies Are Impaired

     50      Number of states




     40




     30




     20                                  18
               17
                             15


     10




      0
             ot or
                  all



                         ex ate
                                t


                                         nt
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                            r
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       t o ry m




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                        Mo



                                    ea
   ten ve




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 ex r to
  no
Mi




             State responses
Source: GAO.

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



Page 41                                                   GAO-03-308 Water Quality
                           Chapter 3
                           States Need Criteria for Some Pollutants
                           and Assistance in Applying and Modifying
                           Existing Criteria




                           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   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
in Modifying Criteria      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.




                           Page 42                                               GAO-03-308 Water Quality
Chapter 3
States Need Criteria for Some Pollutants
and Assistance in Applying and Modifying
Existing Criteria




Figure 9: States Reporting the Ease or Difficulty of Modifying Water Quality Criteria

50        Number of states

                             43

40




30




20




10
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          State responses
Source: GAO.

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




Page 43                                                      GAO-03-308 Water Quality
                       Chapter 3
                       States Need Criteria for Some Pollutants
                       and Assistance in Applying and Modifying
                       Existing Criteria




                       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   While it is not surprising that most states cited resource shortages and the
approval process a     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.
key barrier
                       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.2 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



                       2
                         EPA, An Assessment of the Water Quality Standards Development and Review Process
                       (Washington, D.C.: October 2000).




                       Page 44                                                     GAO-03-308 Water Quality
                         Chapter 3
                         States Need Criteria for Some Pollutants
                         and Assistance in Applying and Modifying
                         Existing Criteria




                         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       States’ abilities to modify criteria can significantly affect the way they
                         identify their impaired waters and, consequently, the decisions they make
Would Result in          as to which of their waters should be targeted for cleanup under the
Different Waters Being   TMDL program. When asked if an improvement in the criteria modification
                         process would result in different waters being slated for TMDL
Slated for Cleanup       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



                         Page 45                                                  GAO-03-308 Water Quality
                           Chapter 3
                           States Need Criteria for Some Pollutants
                           and Assistance in Applying and Modifying
                           Existing Criteria




                           could lead to more or fewer water bodies identified as impaired, depending
                           on what criteria are modified and how they are modified.



Additional Impacts         In addition to states identifying different waters as impaired due to their
Expected from Upcoming     modification of existing criteria, states would also identify different
                           waters as impaired as a result of new nonpoint source pollutant criteria—
New Criteria on Nonpoint   particularly nutrients and sedimentation. These criteria will likely lead
Source Pollutants          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          Because designated uses and criteria make up states’ water quality
                           standards, a change in either one is considered a standards modification.
Cumulative Impact of       As noted in chapter 2, 22 states reported that an improvement in the
Both Designated Uses       process of changing designated uses would result in different water bodies
                           being slated for cleanup. Further, as noted in this chapter, 22 states
and Criteria on            reported that an improvement in the process of modifying criteria would
Impaired Waters Lists      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.)




                           Page 46                                                 GAO-03-308 Water Quality
                                          Chapter 3
                                          States Need Criteria for Some Pollutants
                                          and Assistance in Applying and Modifying
                                          Existing Criteria




Figure 10: States Reporting That Different Water Bodies Would Be Slated for Cleanup if Improvements Were Made to the
Process of Changing Standards




                                                    No          (5)

                                                    Don't know (16)

                                                    Yes        (30)


Source: GAO.

                                          Note: GAO analysis of state data.




                                          Page 47                                                   GAO-03-308 Water Quality
              Chapter 3
              States Need Criteria for Some Pollutants
              and Assistance in Applying and Modifying
              Existing Criteria




              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.




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                      States Need Criteria for Some Pollutants
                      and Assistance in Applying and Modifying
                      Existing 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   EPA states that the report should further emphasize the significant
                      progress the agency has made in developing criteria for nutrients and
Our Evaluation        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



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Chapter 3
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Existing Criteria




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.



Page 50                                                 GAO-03-308 Water Quality
Chapter 3
States Need Criteria for Some Pollutants
and Assistance in Applying and Modifying
Existing 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.




Page 51                                               GAO-03-308 Water Quality
Appendix I

EPA’s Water Quality Standards Program                                                       Appendx
                                                                                                  ies




Budget from 1992 through 2002                                                                Append
                                                                                                  x
                                                                                                  Ii




              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.


              Table 1: EPA Water Quality Standards Program Budget Amounts from 1992
              through 2002
              Fiscal Year                                                 Dollars in millions
              1992                                                                     $16.2
              1993                                                                     $16.7
              1994                                                                     $18.9
              1995                                                                     $18.6a
              1996                                                                     $18.4b
              1997                                                                     $19.9a
              1998                                                                     $20.3c
              1999                                                                     $19.1a
              2000                                                                     $18.5a
              2001                                                                     $18.4a
              2002                                                                     $18.8a

              Source: EPA.
              a
                  Enacted budget amount
              b
                  Operations plan budget amount
              c
               Presidential budget amount




              Page 52                                                GAO-03-308 Water Quality
Appendix II

GAO Survey of State Water Quality Standards
Programs                                                  Appendx
                                                                Ii




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Page 70                             GAO-03-308 Water Quality
Appendix III

Comments from the Environmental
Protection Agency                                        Appendx
                                                               iI




               Page 71            GAO-03-308 Water Quality
Appendix III
Comments from the Environmental
Protection Agency




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Comments from the Environmental
Protection Agency




Page 73                           GAO-03-308 Water Quality
Appendix IV

GAO Contacts and Staff Acknowledgments                                                       Appendx
                                                                                                   iIV




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.




(360171)          Page 74                                             GAO-03-308 Water Quality
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