The following articles are excerpts from the newsletter:

Extra NPDES Sampling: Is it Reportable?,
Steven J. Koorse, Hunton & Williams, Richmond, Virginia

EPA Seeks Public Comment on Possible Revisions to the Water Quality Standards Regulations - Are We Ready Yet?,
Beth S. Gotthelf, Esq., Seyburn, Kahn, Ginn, Bess, Deitch and Serlin, Southfield, Michigan

Clean Water and Species Protection: the CWA/ESA MOA Reemerges,
Brian R. Hanson, Baird Hanson LLP, Boulder, Colorado

Corps of Engineers and EPA Promulgate New Rule to Comply With the Tulloch Decision,
Brenda Mallory, Beveridge & Diamond, Washington, D.C.

 

EXTRA NPDES SAMPLING: IS IT REPORTABLE?

Steven J. Koorse
Hunton & Williams
Richmond, Virginia

Many facilities voluntarily perform monitoring at a higher frequency than required in their NPDES permit. Some sample for pollutants for which no monitoring at all is required. Reasons for that extra effort include:

1. For treatment process control purposes to prevent excursions.

2. To confirm the effectiveness of action taken to eliminate an excursion.

3. To verify, through split sampling, the reliability of the laboratory that performs compliance monitoring.

4. To achieve compliance with a monthly average effluent limitation when the average of results to date, based on the minimum number of tests required for the month, exceeds the permit limit.

5. To improve chances of avoiding new water quality-based effluent limitations based on the "reasonable potential analysis" used by EPA and many states (i.e., to collect a sufficient number of samples to avoid the extremely conservative multiplier that applies with a small sample population).

6. To determine what sampling programs and studies (e.g., chemical translator) are appropriate in anticipation of the NPDES reissuance process.

If you choose to sample beyond the requirements in your NPDES permit, must you report the analytical results? The answer is extremely important, given that those extra measurements can expose your facility to additional liability. For example, collecting an extra sample may improve your chances of complying with the "monthly average" limitation for that month. No matter how high, the extra result could not worsen your situation - as to the monthly limit - if the samples already collected are in excess of the limitation. If sufficiently high, however, the extra sample could trigger a separate excursion of a "daily maximum" limitation.

Your reporting obligations will depend on a variety of factors. The NPDES permitting regulations and those adopted in most states contain the statement, "[i]f the permittee monitors any pollutant more frequently than required by the permit using test procedures approved under 40 C.F.R. Part 136, . . . or as specified in the permit, the results of this monitoring shall be included in the calculations and reporting of the data submitted in the [discharge monitoring report] DMR . . . ." 40 C.F.R. § 122.41(l)(4)(ii) (1997).

Thus, it would appear that any test results obtained using test methods other than those in Part 136 (or otherwise required in the permit) are not subject to reporting in DMRs. EPA has endorsed that interpretation in the preamble to its whole effluent toxicity ("WET") regulation, where it stated, "[a] diagnostic test not included in 40 C.F.R. Part 136 provides permittees with the opportunity for internal effluent evaluation undisclosed to the permitting authority." 60 Fed. Reg. 53,536 (Oct. 16, 1995). But beware of two exceptions. First, EPA stated in the WET preamble that it expects permittees to report WET data in their Form 2C NPDES permit applications, regardless of whether it was derived using a Part 136 test method. Id. That position is questionable, given the exclusive role of Part 136 methods in the NPDES process. Second, certain states have reporting requirements more stringent than EPA's (e.g., requiring permittees to report all test results, regardless of the test method used).

What if a permittee uses a Part 136 test method, but alters the methodology? That sample result would not be considered a legitimate basis for satisfying a mandatory monitoring requirement, and it could not be used for making a compliance determination. As such, it is reasonable to assume that it need not be reported in the DMR (under EPA's rules). Which is not to suggest that the test result, if obtained by the enforcement authority by means other than the DMR (e.g., CWA Section 308), would be entirely inconsequential. Your permitting authority might take the position, however questionable, that the test result, while not conclusive for the purpose of proving the onset of noncompliance, may offer evidence useful in proving the duration of noncompliance (akin to the "credible evidence" debate). Also, EPA undoubtedly does not intend 40 C.F.R. § 122.41 to encourage permittees that anticipate an excursion, based on preliminary test results, to evade reporting requirements, not to mention evidence of noncompliance, by terminating the test before completing the entire Part 136 protocol.

The more difficult question is what EPA means by "more frequently than required." There does not seem to be a consistent interpretation of that phrase amongst the states and EPA regions. The common sense interpretation is that you are required to report sampling results only for parameters that already are subject to monitoring requirements in the permit. Indeed, if the permit writer thought information on additional pollutants was necessary, it would have required such monitoring in the permit. Thus, if you are required to monitor copper three times per week, you must submit the additional data if you choose to monitor every day. While that interpretation is embraced by many states, some interpret the phrase to require the reporting of any Part 136 monitoring, whether or not required in the permit.

What about when you perform split sampling? Are the extra test results reportable (i.e., are the splits considered monitoring "more frequently than required")? You have "monitored" only once, even though you have "analyzed" that single sample two or more times. Notwithstanding the distinction, it is likely that a permitting authority would claim that the term "monitoring" was intended to encompass both sampling and analysis. Also, where you get conflicting results, one showing compliance, the other a violation, which one would you need to report, and could you average the results? The best way to avoid conflict is to confer with your authority on this issue and to establish a procedure for reporting split sampling results.

If you perform extra sampling using a grab technique, rather than the composite technique specified in the permit, must you report? Most states would expect those sampling results even though it is questionable what regulatory significance they offer.

What if you sample using a Part 136 protocol at a location other than the official NPDES compliance monitoring location? Again, every authority has its own view on whether those test results must be reported. One reasonable approach is that if there are treatment processes or other means for reducing the concentration of the pollutant of concern between the actual monitoring point and the official compliance point, the test result is not suitable for compliance purposes, and should not be subject to reporting. That situation is typical of the extra sampling performed for process control purposes (e.g., sampling within a treatment basin, rather than at the discharge point from the basin).

You also should know that there may be other obligations or reasons for reporting analytical results. For example, most permits prohibit and require reporting of unauthorized or unusual discharges. See, e.g., 40 C.F.R. § 122.42(a).

 

EPA SEEKS PUBLIC COMMENT ON POSSIBLE REVISIONS TO THE WATER QUALITY STANDARDS REGULATIONS -- ARE WE READY YET?

Beth S. Gotthelf, Esq.
Seyburn, Kahn, Ginn, Bess,
Deitch and Serlin
Southfield, Michigan

On July 7, 1998, the United States Environmental Protection Agency ("EPA") published a notice in the Federal Register (63 Fed. Reg. 36742) regarding possible revisions to the EPA's Water Quality Standards and seeking public comment on the proposal ¹ According to EPA, the advanced notice of proposed rule making ("ANPRM") on the water quality standards regulations is intended to provide a basis for a discussion on the future of many aspects of the water quality standards program to ensure that the program fully protects the Nation's waters.

There are a number of issues raised by the ANPRM. The first is its extent. Rather than focusing on only a few distinct issues such as mixing zones and Total Maximum Detection Limits ("TMDL"), some believe the ANPRM proposes a total revision of the regulation and question the need and authority for such a total revision. Another is its impact. Given the significant policy issues raised, there are concerns as to whether the proposal has been fully discussed with all stake holders. Even more questions arise when one tries to determine where the resources will come from to implement these proposed changes. Some are disturbed because the ANPRM proposes to take flexibility away from states in an effort to provide for more consistency throughout the country.

EPA is interested in any comments interested parties may have. It is particularly interested in comments on specific portions of the current water quality standards regulations contained in 40 C.F.R. Part 131 which establishes requirements for the adoption of water quality standards pursuant to section 303 of the Clean Water Act ("CWA"). Below is a brief discussion of some relevant parts of the 54-page Federal Register notice.

Summary

The ANPRM states that EPA is using it to initiate a review of the water quality standards regulations to identify possible amendments to the regulations and to identify new guidance or policy that may be needed to enhance State and Tribal (referred to as "State/Tribe") implementation of watershed-based water quality planning and management; to facilitate the use of more integrated water quality criteria and assessment science into water quality standards programs; and to make the regulations more efficient and effective.

Background

Section 303(c) of the CWA establishes the basis for the current water quality standards program. Water quality standards are defined as:

State or Tribal law or regulation that: define the water quality goals of a water body, or segment thereof, by designating the use or uses to be made of the water; set criteria necessary to protect the uses; and protect water quality through antidegradation provisions.

The water quality standards regulations have not had a major revision in fourteen years. Note that the Act provides for States/Tribes to define the standards. Because of this deference to States/Tribes, the present regulations use broad, jurisdiction-wide classifications with lists of chemical criteria to protect the Nation's water resources. EPA is proposing to provide more specificity. EPA believes this specificity is needed to ensure that all waters receive adequate protection.

According to EPA, the CWA requires that water quality be improved. To improve water quality, EPA envisions a national water quality standards program which: (1) not only makes available, but also, uses the best possible information to determine whether designated uses are being attained and how to attain and maintain the designated uses; (2) selects water quality criteria from a wide selection of scientifically sound criteria that can be tailored to each watershed; (3) provides clear national norms of consistency; and (4) encourages innovative and cost-effective approaches. EPA's position is that water quality programs and water quality standards must be better tailored to the characteristics, problems, risks and implementation tools available in individual watershed or basins. Similarly, EPA believes that the water quality standards regulations should provide States/Tribes with flexibility to allow them to define the water quality standards of a water body according to the characteristics of the ecosystem and the needs of the water's users.

EPA believes that its request for public comment will identify specific changes that can strengthen water quality protection and restoration, facilitate watershed management initiatives, and incorporate evolving water quality criteria and assessment science into water quality standards programs.

Purpose and Objectives of ANPRM

The ANPRM's stated purpose and objectives are as follows:

[T]o identify possible amendments to the regulation, and new guidance or policy that may be needed to address the following three objectives: (1) to eliminate barriers and develop incentives to enhance State and Tribal implementation of watershed-based water quality planning and management; (2) to enhance State and Tribal capability to incorporate current criteria and water quality assessment science into their water quality standards programs, and;

(3) to improve the regulation so that it may be implemented more efficiently and effectively (including cost-effectively).

63 Fed. Reg. 36744.

As such, the EPA is requesting that commentors keep these three main objectives in mind when reviewing and commenting on the ANPRM.

Areas of Potential Change

The ANPRM identifies the following as areas of potential change: (1) uses, (2) criteria, (3) antidegradation, (4) mixing zone policy and implementation procedures, (5) applicability of water quality standards to wetlands, and (6) EPA's policy of independent application.

1. Uses

Under 40 C.F.R. § 131.10, States/Tribes have a variety of responsibilities in connection with designating and protecting water uses. For example, they are required to specify the water uses to be achieved and to take steps to protect downstream uses. Uses are divided into existing (or actual) and designated (or attainable). As to designated uses, 40 C.F.R. § 131.10(a) requires States/Tribes to specify water uses to be achieved and protected after taking into consideration such factors as public water supplies; fish, shellfish and wild life; recreation; agriculture; industrial and other purposes. Some States/Tribes have used very specific uses and others are more general. Whether specific or general uses classifications are utilized, EPA is concerned that the classification is clearly articulated and the levels of protection are distinguishable so that the appropriate standards can be developed and implemented. Additionally, it is also important for the public to understand the classifications and influence of the goals.

EPA believes that inappropriate standards are being utilized as a result of the general classifications and also because some States/Tribes are abusing their flexibility. EPA has indicated that classifications that are general and not clearly articulated may also result in under (or possibly over) protective standards being developed. EPA believes this is true because the States/Tribes may base the standard on the most sensitive use even though that particular use may not apply to the water body. EPA is questioning whether there is not a growing need to move away from the flexibility States/Tribes currently have to a more precisely tailored use descriptions and criteria to site-specific conditions so that the level of protection is more accurately reflective of use.

To that end, EPA is trying to determine whether the current regulation and guidance provide sufficient direction on when and how to refine uses. Communities may disagree, arguing that under the ANPRM, EPA may impose stricter standards than required for a water body because of a more uniform method that fails to take into sufficient consideration specific water bodies. Additionally, EPA appears to be requiring more information from the States while taking away the States' decision making authority. EPA also seems to be requiring the identification in advance. The problem is that when it is time to calculate the TMDL, the use may have changed. On the other hand, knowing the use in advance may provide more certainty what the TMDL will be (we never said that these issues were simple or straight forward).

2. Water Quality Criteria

Water quality criteria are levels of individual pollutants or water quality characteristics, or descriptions of conditions of a water body necessary to protect the designated uses of the water. As indicated above, the uses are designated by the States/Tribes. Typically, these criterions are chemical specific. EPA is considering new biological and nutrient criteria. There are three main categories of water quality criteria: protect human health, protect aquatic life, and protect wildlife. Section 303(a) - (c) of the CWA requires all States/Tribes with water quality program authority to evaluate the need for water quality criteria to protect a designated use and then adopt water quality criteria sufficient to protect uses designated for States/Tribal waters. In determining the water quality criteria, a State/Tribe may not justify a criteria that is not protective because of economic or technological factors, such as the ability to detect pollutants and treatment cost.

Aquatic life criteria are scientifically-derived values to protect the aquatic life from the effects of pollutants in ambient water. Often, there are two numeric concentrations: protective of acute effects (short-term exposure) and protective of chronic effects (long-term exposure). The criteria consists of three components: magnitude (acceptable concentration of a pollutant), duration, and frequency (how often the criteria can be exceeded to allow the aquatic community sufficient time to recover from exclusions). EPA seeks comments on revisions to the aquatic life methodology.

States/Tribes may also develop site-specific numeric human health and aquatic life criteria. EPA has developed and continues to develop, site-specific criteria guidance. EPA notes that the Great Lakes Initiative ("GLI") contains a procedure for developing site-specific criteria for protection of wildlife. EPA is seeking comments on, among other things, whether regulations or guidance should specify the circumstances under which site-specific criteria are used and whether it should include watershed-specific or ecosystem-specific criteria. The reliance upon the GLI is discussed below.

States/Tribes also have the option of developing narrative water quality criteria. Narrative criteria often contain general language, such as, that waters be free from substances that cause toxicity to aquatic life or human health or settle to form objectionable deposits. The EPA believes that few States/Tribes have developed comprehensive written implementation procedures. As a result, EPA believes that it is difficult to evaluate whether aquatic life and human health are adequately protected. EPA seeks a number of comments on the various issues surrounding narrative criteria, including whether a minimum floor should be established, how to implement narrative criteria in light of non-point sources, and the minimum elements to be included in an implementation method.

Under the CWA, EPA must work with States/Tribes to restore and maintain the biological integrity of the Nation's surface waters. Biological criteria typically include measures of the types, abundance and conditions of aquatic plants and animals (i.e., habitat). The criteria also includes information of the cumulative impact of both chemical and non-chemical stressors. Needless to say, in water bodies where there are numerous sources, biological assessments to distinguish the relative degrees of impairment from each contributing sources is extremely difficult. EPA is considering whether it should explicitly require States/Tribes to adopt biological criteria, and whether EPA should develop biological criteria if a State/Tribe fails to do so, which again brings up the struggle between flexibility and national standards. The biological criteria would impose an extreme burden on the sources of many States/Tribes, which raises another very relevant issue of resources - who is going to pay for the additional implementation costs. There are several other technical and legal issues that arise when EPA introduces the new concept of biological criteria. The first obvious issue is that the CWA discusses regulating pollutants, not biological criteria. Another issue is how do you determine the habitat and could this cause a modification of current habitats?

Wildlife criteria to protect mammals and birds from adverse impacts is part of the GLI. EPA is considering whether it should specifically address wildlife criteria on a national basis.

Another very real issue is how to address nonpoint sources, which is not controlled by numeric limits on point sources. As noted above, the GLI may offer ideas on how to address some of the issues raised; however, to what degree should EPA rely upon it? As Fred Andes is quick to point out, the CWA has a special provision for the Great Lakes because the Great Lakes are considered unique. As a result, EPA has more authority where the Great Lakes are concerned then other water bodies. EPA appears to want to extend that extra authority to all water bodies on the basis of consistency. The concepts in the GLI may or may not be useful for the rest of the country. If the GLI is a good, scientifically sound approach, maybe it should be applied universally. Of course, the authority to apply the GLI may be lacking. Hopefully, there will be much debate on this issue.

3. Antidegradation

According to the EPA, the intent of the antidegradation policy is as follows:

[T]o ensures that in all cases, at a minimum, water quality necessary to support existing uses is maintained (tier 1), that where water quality is better than the minimum level necessary to support protection and propagation of fish, shellfish and wildlife, and recreation in and on the water ("fishable/swimmable"), that water quality is also maintained and protected unless, through a public process, some lowering of water quality is deemed to be necessary to allow important economic or social development to occur (tier 2), and to identify water bodies of exceptional recreational or ecological significance and maintain and protect water quality in such water bodies (tier 3).

63 Fed. Reg. 36780.

This is one of the most explosive issues because it balances growth against the role of the water program. In connection with the concept, Section 303(d)(4)(B) of the CWA prohibits antibacksliding by requiring that antidegradation requirements be satisfied prior to modifying certain NPDES permits to include less stringent effluent limitations. The GLI also includes an antidegradation component for new or increased loadings of specified bioaccumulative chemicals of concern within the Great Lakes basin. EPA states that the antidegradation policy is significantly under utilized as a method to attain and maintain water quality and to plan for economic and social development that can impact water quality. Similarly, EPA would like to see the antidegradation principles used in activities where its application is not explicitly required by regulation. EPA is calling for a structured national debate concerning deficiencies in the antidegradation policy and implementation provisions. This debate will certainly become monumental because the core of the issue is growth. As areas grow, new sources will impact water bodies. These sources include both point source and nonpoint sources, such as from housing developments. Is EPA going to tell communities if and how they can grow? Are current local regulations sufficient? Further, is the passing reference to this issue in the 1986 amendments sufficient to give EPA clear authority in this area?

One significant and controversial issue is identifying the universe of activities that trigger antidegradation. There are a large number and variety of activities that affect water quality. However, not all those activities are "regulated" under State/Tribal or federal law. EPA believes that antidegradation principles can and should be considered even where application of the antidegradation review requirements are not explicitly required by the regulation. These activities include urban and agricultural run-off and other unregulated non-point sources. This type of contamination is very difficult to quantify and attribute. As a result, point sources are often more restricted because of the contributions of nonpoint sources. EPA will likely receive a number of comments on this issue.

In connection with this nonpoint sources issue is the requirement that States/Tribes achieve the cost-effective and reasonably available best management practices for nonpoint sources before they authorize increases for point sources. EPA has interpreted this requirement as not mandating States/Tribes to establish best management practices ("BMP") for nonpoint sources unless achievement of the BMP is required under State/Tribal law. EPA is rethinking this position and is considering beginning to require implementation of cost-effective and reasonable BMP for nonpoint source control before allowing the lowering water quality consistent with its other programs, including the TMDL program under Section 303(d) of the CWA.

As noted above, the antidegradation policy contains 3 tiers of water quality: protect existing uses (Tier 1), provide a higher level of protection for "high quality waters" (Tier 2) and protection of outstanding natural resources waters ("ONRWs") (Tier 3). EPA is considering creating a fourth tier, referred to as Tier 2.5, for waters that are more high quality than Tier 2, but do not meet the ONRW designation. EPA is considering this fourth tier because it has a sense that States/Tribes are not inclined to designate waters ONRW. If a Tier 2.5 was created, States/Tribes may apply more stringent controls than would be required under Tier 2, but with more flexibility than Tier 3 provides. EPA is requesting comments on this potential new tier.

As to Tier 3, EPA notes that the designation of water bodies as ONRWs has been limited because of concerns regarding the process for adopting ONRW classifications and the level of protection afforded to a water once it is so designated. If a water body is designated as an ONRW, then growth in that area could be drastically curtailed. Therefore, it is important to use such designation for only water bodies that are truly ONRW. EPA is calling for a public debate on the restrictions that would be imposed upon a ONRW. Additionally, EPA is considering establishing a process whereby the public could nominate a water body as ONRW, which could further increase its application. Whatever is eventually decided will have significant impacts.

4. Mixing Zone Policy and Implementation Procedures

Mixing zones refer to the incomplete mixing of wastewater discharges into receiving waters. EPA interprets the CWA as authorizing the use of mixing zones, as long as the provisions addressing toxicity at section 101(a)(3) are met and the designated uses of the water body as a whole are protected.

Under the current regulation, 40 C.F.R. § 131.12, States/Tribes are not required to adopt policies on mixing zones. If a State/Tribe does adopt such a policy as part of their water quality standards or other implementing regulations, they must submit the policy to EPA for review and approval. Similarly, although existing EPA guidance on the implementation of mixing zones is quite detailed, the guidance is not binding and the current regulation does not provide any EPA requirements regarding the content of mixing zone implementation procedures. According to EPA, the regulated community and environmental groups have expressed concern over the lack of specificity in State/Tribal mixing zone policies and implementation procedures adopted under 40 C.F.R. § 131.13. The fear is that the lack of specificity may result in inconsistent and subjective implementation from site-to-site. On the other hand, this is another example where States/Tribes want flexibility to address site specific issues because one size does not fit all.

EPA is considering expanding the regulation to include certain specifications derived from the EPA's guidance on mixing zones and to provide detailed and specific direction on the development and content of mixing zone policies and implementation procedures. EPA believes that greater specificity will provide for: increased public participation in State, Tribal, and Federal decision-making; a better understanding of what EPA considers an approvable mixing zone policy; a decrease in NPDES permit appeals and objections; and a more consistent review of State and Tribal submissions.

EPA also believes that the mixing zone analyses currently followed by some States and Tribes may not fully protect designated uses. Consequently, EPA believes that the regulation should be more explicit as to the circumstances under which mixing zones must be supported by site-specific data and analysis and is therefore considering including regulations which will govern the development and content of mixing zone analysis procedures as part of State/Tribal implementation procedures. This entire topic is complicated. It may allow the issue to be better explored if it was separated from the current ANPRM.

5. Application of Water Quality Standards to Wetlands

EPA acknowledged that the current water quality standards regulation does not contain a definition of the phrase, waters of the United States. Nonetheless, the ANPRM makes clear that the EPA's position is that the Part 131 regulations do apply to wetlands that fall within the definition of waters of the United States. EPA is, however, soliciting comments on whether the existing definition of waters of the United States (40 C.F.R. § 122.2) should be included within the water quality standards regulation. It is EPA's opinion that the addition of this definition would not constitute an expansion of authority or application, but merely a clarification of requirements already contained within the CWA. EPA is also soliciting comments regarding whether the current regulation provides the clarity, technical tools, and incentives for States and Tribes to develop appropriate standards for wetlands.

6. Evaluation of EPA Policy of Independent Application

As stated earlier, the CWA requires States/Tribes to adopt water quality criteria necessary to support designated uses. For waters where aquatic life protection is an applicable designated use, the CWA requires States/Tribes to adopt criteria protective of aquatic life. Because there are different ways to assess the health of aquatic system, EPA developed the policy of independent application. The independent application policy provides:

[W]here different types of monitoring data are available for assessment of whether a water body is attaining aquatic life uses or for identifying the potential of pollution sources to cause or contribute to non attainment of aquatic life uses, any one assessment is sufficient to identify an existing or potential impact/impairment, and no one assessment can be used to override a finding of existing or potential impact or impairment bases on another assessment.

63 Fed. Reg. 36795.

There are three assessment approaches which could be evaluated when using independent application: biological, toxicological, and chemical. Biological assessments are often used to provide information in determining the cumulative effect of past or current impacts from multiple stressors. Toxicological assessment provides a means of evaluating the aggregate toxic effects of pollutants and can also be used when testing effluent to predict single chemical impacts. Chemical-specific assessments are useful when evaluating and predicting ecosystem impacts from single pollutants. Each of these assessment methods, however, relies on different kinds of water quality data and has its own limitations. EPA's policy on independent application is based on the premise than any valid, representative data which indicates an actual or projected water quality impairment must not be ignored when determining the appropriate action to be taken.

The ANPRM discusses the two different uses of water quality data. One relates to whether a NPDES permit must contain water quality-based chemical or toxicity limits and what those numeric limits should be. The second relates to the use of water quality data to evaluate the quality or condition of waters under sections 305(b) and 303(d) of the CWA. EPA inquires as to whether the present water quality criteria are complete and appropriate for the water body and how should attainment of the present or future criteria that apply to any water body be measured. EPA believes that there is a need to incorporate more comprehensive data, particularly biological data, into the water quality assessment framework. EPA is developing a comprehensive approach for conducting aquatic life use assessments which integrates chemical, toxicological, physical, and biological data which will consider the strengths and limitations of the assessment methods and data. Some have raised a concern as to the extent a water body should be regulated or considered impaired if a chemical is present in the water but there is no toxic or biological adverse impact to the water. In such a case, EPA is soliciting comments on how chemical, physical, toxicological, and biological assessments can be effectively incorporated and implemented in State/Tribal water quality standards programs to achieve the goals of the CWA.

Conclusion

There has been talk for a long time about restructuring the regulations. This ANPRM proposes to do just that by proposing numerous, substantial changes. However, one has to take a step back and ask why is EPA proposing such a mass restructuring. There is no major case or legislation mandating the change. What are the major problems and does the ANPRM address them? The ANPRM focuses on biological issues and how to support aquatic species. Should these be addressed exclusively under the Endangered Species Act? Fred Andes argues that the major problems are because of fish advisories due to PCBs and pesticides, as well as nutrients. This may be true for the Great Lakes, but is it true elsewhere. The ANPRM goes well beyond these issues. Is it time for the ANPRM? Perhaps it is time for some changes, but maybe fewer changes than what is proposed. Maybe they should be separated and dealt with in separate rule makings. This impact is great. There are a number of policy issues that need to be examined and debated. These issues range from who is going to carry the financial burden of implementation, whether State flexibility should give way to national consistency, to what role does the federal government have in growth decisions for a community. We encourage all stakeholders to take time to examine the ANPRM. We also encourage EPA to consider separating out a few of the issues to encourage national debate.

 

CLEAN WATER AND SPECIES PROTECTION: The Cwa/Esa Moa Reemerges

Brian R. Hanson
Baird Hanson LLP
Boulder, Colorado

The Environmental Protection Agency, Fish and Wildlife Service, National Marine Fisheries Service, and National Oceanic and Atmospheric Administration renewed their efforts to harmonize implementation of the Clean Water Act and Endangered Species Act by releasing for comment a draft memorandum of agreement to coordinate the two Acts. See64 Fed. Reg. 2741 (Jan. 15, 1999). An earlier iteration of the draft MOA was released in July 1997 to states and a limited group of stakeholders.

The draft MOA is a significant development for environmental lawyers and technical experts generally. It represents the first attempt to formalize procedures, activities, standards, and oversight under a major pollution control statute. The draft MOA seeks to bring ESA procedures and objectives into EPA's day-to-day implementation of the Clean Water Act. The MOA may very well become a template for other media-specific ESA MOAs. Environmental lawyers and technical experts will want to review the draft MOA closely and follow the agencies' subsequent actions with respect to it in an effort to glean the agencies' intentions with respect to ESA's impact on water quality initiatives and with respect to the ESA's impact on other environmental programs.

CWA/ESA Interplay

The Endangered Species Act intersects the Clean Water Act in a variety of ways. The most pervasive interplay occurs under ESA Section 7, which mandates that federal agencies "utilize their authorities in furtherance of the purposes of [the ESA] by carrying out programs for the conservation of endangered species and threatened species." 16 U.S.C. § 1536(a). Section 7 further requires interagency "consultation" when federal agencies take actions that "may affect" a species listed as endangered or threatened or destroy or adversely modify designated "critical habitat." Id. EPA's implementation of the Clean Water Act, including EPA's approval of state water quality standards or NPDES permits, adoption of water quality criteria, delegation of NPDES authority to a state or tribe, or reviews of state-assumed NPDES programs, triggers Section 7 conservation or consultation requirements.

While federal agencies must comply with the ESA Section 7 conservation and consultation requirements, states and tribes are under no such obligation. Wildlife advocates have attempted to use EPA's oversight of the Clean Water Act to "federalize" state or tribal actions and, thereby, bring them within the ambit of Section 7. Those efforts resulted in EPA's conditioning delegation of the NPDES program to Louisiana on the State's willingness to consult with the Fish and Wildlife Service ("FWS") and National Marine Fisheries Service ("NMFS") about threatened or endangered species potentially affected by State NPDES permit issuance. The Fifth Circuit rejected EPA's conditional delegation of NPDES authority. The Circuit determined that EPA lacked the authority under the Clean Water Act, and had no additional authority under the Endangered Species Act, to require the State to consult with FWS or NMFS prior to issuing NPDES permits. See American Forest and Paper Association v. EPA, 137 F.3d 291 (5^th Cir. 1998).

In part, the draft MOA is an attempt by EPA and the Services (FWS and NMFS) to find an orderly means to bring ESA considerations into CWA implementation. However, EPA asserts that the draft MOA is also integral to achieving the goals of the Clean Water Act of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters. In EPA's view, a water body contributing to a species' decline "is not fulfilling the CWA's objectives or meeting the objectives of the ESA." See64 Fed. Reg. at 2742.

Development of the Draft MOA

EPA and the Services confront a variety of issues that they believe warrant developing the draft MOA. These issues include determining the extent to which existing or proposed water quality criteria are protective of listed species; finding means to protect non-aquatic wildlife; identifying reasonable and prudent measures for minimizing the incidental take of listed species; assessing research needs for areas of uncertainty; and coordinating interagency review of EPA's oversight of NPDES permits issued by states or tribes.

The draft MOA attempts to address these and related issues by establishing procedures for interagency consultation and elevation; undertaking national level water quality standards activities; reviewing state and tribal water quality standards; and overseeing state and tribal NPDES permitting programs. The draft MOA calls for establishment of "coordinating teams" among federal agencies collaborating on CWA/ESA issues in the hope of enhancing the efficacy of agencies charged with assessing the impact of Clean Water Act regulatory activities on endangered species.

The draft MOA commits EPA to proposing amendment of the Agency's water quality standards regulations found at 40 C.F.R. Part 131 to require that water quality not jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat. The draft MOA contemplates that a national consultation on EPA's recommended aquatic life criteria will occur within 18 months after adoption of the MOA. Ideally, this national consultation will obviate the need for regional or local consultations when states or tribes adopt aquatic life criteria that are identical to or more stringent than the recommended national criteria.

The effect of the draft MOA on state and tribal water quality standards and permitting programs goes directly to the heart of concerns expressed about the July 1997 iteration of the MOA. At a minimum, the draft MOA contemplates that the Services will have an opportunity for early involvement in development of state and tribal water quality standards and have a role to play in EPA's triennial review of those standards. Similarly, the draft MOA creates a framework through which the Services can participate with EPA in overseeing state and tribal NPDES permits. Some states and tribes, as well as permitted facilities and permit applicants, are troubled that the draft MOA will elevate endangered species considerations above other considerations under the Clean Water Act and undermine flexibility currently exercised by states and tribes to establish use designations that take into account factors other than protection of fish and wildlife.

Although ESA Section 7 directs federal agencies to use their authorities to further conservation of listed species and consult with the Services about federal actions that may affect listed species or destroy or adversely modify critical habitat, ESA does not substantively add to authorities otherwise granted federal agencies. This was the conclusion of the Fifth Circuit in American Forest and Paper Association v. EPA discussed above. In the draft MOA preamble discussion, EPA and the Services attempt to circumvent the implications of the American Forest and Paper Associationcase by emphasizing that the draft MOA is an agreement solely among federal agencies that imposes no obligations or commitments on any state or tribe administering the NPDES program and that places no conditions on EPA's approval of NPDES programs beyond those authorities enumerated in the Clean Water Act. See 64 Fed. Reg. at 2746. However, the agencies' arguments are not likely to satisfy state, tribal, or permittee concerns that the draft MOA will, in practice, federalize state or tribal actions to trigger ESA review.

ABA Committees Brownbag Session

The ABA Water Quality and Wetlands Committee and the Endangered Species Committee co-sponsored a brownbag session on March 3 to talk about the draft MOA. The brownbag was broadcast from Washington D.C. to a number of locations across the country. Featured speakers included Robert Dreher, EPA Deputy General Counsel, Sean Skaggs, FWS Counselor to Assistant Secretary for Fish, Wildlife and Parks, Mike Brennan, Partner, Holland & Hart LLP, and J.B. Ruhl, Visiting Associate Professor of Law, George Washington University Law School. The speakers and participants raised a number of questions and concerns about the draft MOA.

The agency representatives said that the draft MOA process already has led to better understanding of the respective agency approaches and programs. For example, EPA's typical focus on national programmatic considerations does not initially fit well with the regional or local focus of the Services. Additionally, the Services' expectation of site-specific research on factors affecting the local species is not typically an expectation EPA can meet. The brownbag participants acknowledged the remaining challenge in helping field offices work efficiently and predictably under the terms of the draft MOA.

Brownbag speakers and participants raised concern about the application of Section 7(d)'s prohibition against making "any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures" to the national consultation about the aquatic life criteria or regional or local consultations about water quality standards or permits. For example, if the prohibition were applied to the national consultation about the aquatic life criteria, the disruption to NPDES permit programs across country could be substantial. While one may quibble about whether "oversight" constitutes a "federal action" subject to Section 7, brownbag participants expressed concern about the potential for delay and disruption as parties litigate the effect of Section 7(d) on EPA's overview of state or tribal CWA programs.

Some speakers and participants also expressed skepticism about tiering national, regional, and local consultations as contemplated by the draft MOA. The early promise under the National Environmental Policy Act to bring the appropriate level of consideration to national policy decisions through programmatic environmental impact statements followed by local, site-specific analysis based on the programmatic considerations has not been fulfilled. Instead of achieving analytical clarity and efficiency, the unhappy result of many of these NEPA tiering exercises has been added expense, complication, and opportunities for project opponents. Brownbag participants were concerned about similar experiences plaguing the draft MOA's efforts to tier CWA consultations.

Path Forward

At this point, the draft MOA comment period has closed. Once again, the agencies are considering their statutory and regulatory obligations and opportunities to assess how the CWA and ESA might be better coordinated. No further administrative process is required before the agencies announce finalization of the MOA. However, it is too early to predict whether the MOA will emerge quickly or languish like the 1997 draft.

While the draft MOA raises as many issues as it resolves, it represents a stimulating attempt to coordinate two very different statutes administered by four very different agencies into a single operating system. Whether that attempt will be successful in the context of Clean Water Act activities and procedures and whether that effort will become a template for similar initiatives with respect to other statutes remains to be seen.

The Environmental Protection Agency, Fish and Wildlife Service, National Marine Fisheries Service, and National Oceanic and Atmospheric Administration renewed their efforts to harmonize implementation of the Clean Water Act and Endangered Species Act by releasing for comment a draft memorandum of agreement to coordinate the two Acts. See 64 Fed. Reg. 2741 (Jan. 15, 1999). An earlier iteration of the draft MOA was released in July 1997 to states and a limited group of stakeholders.

The draft MOA is a significant development for environmental lawyers and technical experts generally. It represents the first attempt to formalize procedures, activities, standards, and oversight under a major pollution control statute. The draft MOA seeks to bring ESA procedures and objectives into EPA's day-to-day implementation of the Clean Water Act. The MOA may very well become a template for other media-specific ESA MOAs. Environmental lawyers and technical experts will want to review the draft MOA closely and follow the agencies' subsequent actions with respect to it in an effort to glean the agencies' intentions with respect to ESA's impact on water quality initiatives and with respect to the ESA's impact on other environmental programs.

 

CORPS OF ENGINEERS AND EPA PROMULGATE NEW RULE TO COMPLY WITH THE TULLOCH DECISION

Brenda Mallory
Beveridge & Diamond
Washington, D.C.

On May 10, 1999, the U.S. Army Corps of Engineers ("the Corps") and the Environmental Protection Agency ("EPA") promulgated a final rule, effective immediately, amending the regulatory definition of the term "discharge of dredged material," which is found in Section 404 of the Clean Water Act ("CWA"). This rule is a response to the D.C. Circuit's June 1998 decision in National Mining Association v. United States Corps of Engineers ("NMA"), which held that the Corps exceeded its CWA authority when it promulgated 1993 regulations expanding the scope of activities encompassed within the definition of "discharge of dredged material." The 1993 regulations, known as the "Tulloch Rule," defined the "discharge of dredged material" to include any redeposit of dredged material, including incidental fallback, into waters of the United States. In this new rule, the Corps and EPA have deleted the word "any" as a modifier of redeposit and expressly excluded "incidental fallback" from the definition. The new rule provides no guidance to Corps personnel charged with enforcing it or to members of the regulated community who are trying to determine whether their activities will require a Section 404 permit. Nevertheless, the new rule is significant because it makes clear that the agencies are reading the NMA holding narrowly and will be scrutinizing proposed excavation activities with great care. This new rule potentially impacts all entities engaged in dredging and excavation activities in wetlands and other waters of the United States, including state and local governments, land developers, mining companies, flood control districts, and industrial, commercial and agricultural interests.

By way of background, the Tulloch Rule was promulgated in 1993 and immediately challenged by several trade associations because the inclusion of the more expansive language "any redeposit" meant that virtually all excavation, dredging, land clearing, ditching, and channelization performed in wetlands was subject to federal regulation. The Tulloch Rule reversed nearly 20 years of the agencies' interpreting the CWA as not encompassing drainage and excavation activities. In 1997, the District Court held that the Tulloch Rule exceeded the agencies' authority and enjoined them from enforcing it. In its June 1998 decision, the D.C. Circuit affirmed the District Court decision and held that "[b]ecause incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge." Thus, "by asserting jurisdiction over 'any redeposit,' including incidental fallback, the Tulloch Rule outruns the Corps' statutory authority."

The Corps' and EPA's two simple modifications to the Tulloch Rule - deleting the word "any" and expressly listing incidental fallback as an unregulated activity - correct the literal errors of the 1993 regulations identified by the D.C. Circuit. These modest changes, however, do not embrace the overall statutory analysis the court employed. Critical to the court's analysis of what activities are regulated under the CWA was the determination of whether the activity involved an addition, as opposed to a withdrawal, of material in regulated waters. The court was clear that only activities involving additions meet the statutory definition of a "discharge" that is subject to regulation.

The Preamble to the new rule notes that some redeposits of dredged materials into regulated waters will require a Section 404 permit. Deciding when a particular redeposit is subject to CWA jurisdiction or whether it constitutes "incidental fallback" will require a case-by-case evaluation. The Preamble, however, lists three types of redeposits that the agencies believe are subject to CWA jurisdiction:

(1) mechanized land clearing; (2) redeposits at various distances from the point of removal (e.g., sidecasting); and (3) removal of dirt and gravel from a stream bed and its subsequent redeposit in the waterway after segregation of minerals. These three categories derive from three earlier cases in which specific examples of these activities were held to constitute regulated discharges. The NMA decision accepted these decisions as correct on their facts and consistent with the addition/removal distinction central to the court's analysis. By generalizing from the facts of these earlier decisions without attending to the D.C. Circuit's analytical framework, the agencies risk once again overstepping their statutory authority.

Because the rule does not provide a bright line test for distinguishing regulated from non-regulated activities, the agencies intend to expeditiously undertake notice and comment rulemaking in an effort to delineate the scope of CWA jurisdiction over redeposits of dredged material. Until a better definition is provided, the agencies intend to determine on a case-by-case basis whether a particular deposit of dredged material requires a Section 404 permit. The regulated community will need to be on its guard against agency overreaching and plan its projects to allow the extra time that may be necessary to resolve disagreements over the appropriate scope of CWA jurisdiction over specific projects.