Workshop Summary:
Review of EPA's Proposed TMDL Rule
and
Integration of Water Quantity and Quality
September 22-23, 1999 -- Park City, Utah
A Workshop Sponsored by WGA and Western States Water Council (WSWC)
Published October 1999
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Workshop Summary:Review of EPA's Proposed TMDL Rule September 22-23, 1999 -- Park City, UtahA Workshop Sponsored by WGA and Western States Water Council (WSWC) Published October 1999 |
Foreword
Acknowledgments
Agenda
Executive
Summary
EPA TMDL Rule
Panel
One, Day One -- "Effect of Proposed Rule on State Listing Requirements"
Panel
Two, Day One -- "Effect of Proposed Rule on TMDL Development/Implementation"
Opening
Session, Day Two -- "State Watershed Strategies..."
-- East Canyon Drainage Basin,
Utah
-- Upper Clark Fork Basin, Montana
-- Klamath River Basin, Oregon
Links to Comments on EPA Proposed
TMDL Rule
Links to Useful Web Sites
The Clean Water Act requires states to identify and list lakes, rivers and streams that do not meet water quality standards. For each of those water bodies, a state is required to establish a total maximum daily load (TMDL) for each non-attainment pollutant, including non-point source pollutants, at a level necessary to ensure that applicable water quality standards can be obtained. A TMDL is the amount of pollution a water-body can absorb and still support aquatic life in addition to uses such as water for drinking and recreation.
While states have primary responsibility for establishing TMDLs, the U.S. Environmental Protection Agency (EPA) is charged with ensuring that states comply with the law and establish TMDL programs. The EPA is required to establish TMDLs if a state does not comply with the Clean Water Act. Development of state plans to implement the TMDL requirements has been slowed for a number of reasons including an early focus on point source regulation and limited resources. As a result, there are approximately 30 lawsuits pending against the EPA, charging that the EPA has not been enforcing the law with regard to the states.
TMDLs are a priority issue for western governors, and in 1997 the governors adopted Western Governors' Association (WGA) resolution 97-008 that directed WGA staff to facilitate state interaction on this subject. The governors noted that the unique features of the west including our hydrology, geography, water law, and land use and ownership patterns dictated the need for an equally unique approach to TMDL implementation. Under the direction of its lead governors for lands and water issues, Governor Jim Geringer of Wyoming and Governor John Kitzhaber of Oregon, WGA convened a forum of the states in Jackson, Wyoming in the Fall of 1997. The issues raised and recommendations made at that forum suggested to the governors that WGA should seek funds to coordinate TMDL issues for western states over the near term. In the Summer of 1998, WGA was awarded a grant by the EPA to design and manage a series of workshops primarily for state personnel on specific TMDL topics. The goals of the workshops are to seek through a collaborative process new and creative ways to implement the Clean Water Act regarding TMDLs, and to provide a venue for the states and other entities to enter into a constructive exchange on policy and regulatory issues associated with TMDLs.
This document attempts to capture some of the substance from WGA's third workshop: "Review of EPA's Proposed TMDL Rule & Integration of Water Quantity and Quality," which took place in Park City, Utah on September 22 & 23, 1999. Scheduled within the 60-day comment period, the forum's purpose was to promote discussion regarding the Environmental Protection Agency's proposed TMDL rule (see EPA website - http://www.epa.gov/owow/tmdl/proprule.html ). On day 1, panels assisted states and others in clarifying and improving their understanding of the proposed rule. On day 2, panels examined issues associated with the integration of water quantity and quality. Panelists presented various strategies and case studies, enabling participants to evaluate appropriate federal, state and stakeholder roles in TMDL management.
This workshop is one in a series of workshops funded by the U.S. Environmental Protection Agency. WGA appreciates the support, expertise and good cheer of the EPA individuals who have worked with us. The considerable work of identifying topics, developing an agenda, selecting speakers, developing an invitation list and arranging logistics for the meetings fell to WGA's TMDLs Advisory Committee and WGA staff. The members of the advisory committee were selected because of their knowledge of TMDL issues and players, and because of their ability to capably represent the broad range of interests involved in TMDL issues. WGA aims to maintain the Advisory Committee throughout its TMDL work in order to continue reaping the benefits of the members' wisdom and insights. WGA's TMDLs Advisory Committee includes the following individuals:
WGA would also like to acknowledge and thank each of the speakers who gave freely of their time and experience to participate in the WGA workshop, plus send an extra thanks for devoting extra time to develop thoughtful responses to the pre-questions posed to them prior to the workshop. A final note of gratitude is owed to Jim Alder of the Western States Water Council for his invaluable assistance at the meeting. We have attempted to capture the speakers' presentations in this report, but we urge those seeking further insights to contact them directly.
Western Governors'
Association & Western States Water Council
"Review of EPA's Proposed TMDL Rule
& The Integration of Water Quantity and Quality"
September 22-23, 1999
The Yarrow Hotel, Park City, Utah
Wednesday, September 22
09:30 a.m.
10:00 The EPA TMDL Rule - Don Brady - EPA
EPA staff will briefly review the rule followed by a question and answer session.
11:30 Lunch - on your own
01:00 p.m. Panel One -- Effect of Proposed Rule on State Listing Requirements
Each of the panelists will make a 10-15 minute presentation on effects of the new rule on their listing programs/interests.
02:30 Break
03:00 Panel Two - Effect of Proposed Rule on TMDL Development and Implementation
Each of the panelists will make a 10-15 minute presentation on effects of the new rule on their programs/interests.
04:15 Summarize the Days Discussion
WGA staff will summarize discussion items and note any follow-up actions which may arise from the discussion. EPA staff will be available to address issues and assist with questions. Review second day agenda.
05:00 Adjourn
(Note - a room will be reserved at 5:00 p.m. for federal agencies to answer questions concerning the Unified Federal Policy for Watershed Management on Federal Lands.)
05:30 - 06:30 Reception
Thursday, September 23
07:30 a.m. Continental Breakfast Provided
08:00
08:15 State Watershed Strategies - Opportunities and Challenges for Management of Quality/Quantity Interrelationship
Two state speakers will "set the stage" by describing the legal framework, links between state watershed strategies and TMDL development and implementation, current status of state watershed strategies and the challenges/obstacles they confront, with particular emphasis on integration of water quantity and quality considerations.
09:15 Presentation of Case Studies Which Integrate Water Quality and Water Quantity Planning and Management
Purpose - each panel will provide examples of efforts to integrate water quality and water quantity considerations within a watershed, noting institutional frameworks or arrangements which helped or hindered, with particular emphasis on watershed strategies and relative governmental relations.
Panel 1 -- East Canyon Drainage Basin - Utah
10:45 Break
11:00 Panel 2 - Upper Clark Fork Basin - Montana
12:30 p.m. Lunch on your own
1:30 Panel 3 - Klamath River Basin - Oregon
3:00 Round table Discussion -- Facilitator - Bruce Flinn
Meeting participants will engage the panelists and themselves in a facilitated discussion of state challenges associated with the integration of quantity/quality, and alternative responses to those challenges, focusing on a context of state TMDL/watershed strategies.
4:00 Final Summary/Wrap-up/Next Steps
WGA and WSWC staff will summarize the days discussion, inform participants that a meeting summary will be prepared listing key issues and note any follow-up actions.
4:30 Adjourn
WATER QUALITY/WATER RESOURCES
Total Maximum Daily Loads/Watersheds
WESTERN STATES WATER
Special Report #1324
October 1, 1999
On September 22-23, the Western Governors' Association (WGA) and the Western States Water Council (WSWC) sponsored the third in a series of seven workshops in the Total Maximum Daily Load (TMDL)/Western Watershed Program at the Yarrow Hotel in Park City, Utah. Scheduled so as to coincide with the Environmental Protection Agency's (EPA) release of its proposed TMDL rules, the first day of the workshop was intended to assist interested parties in preparing their comments on the proposed rules for submission to EPA, and to provide EPA with an opportunity to answer questions about the rules and receive input. The second day focused on water quantity/water quality issues, particularly within the context of state watershed/TMDL strategies.
After welcoming remarks from Dianne Nelson of Utah, Jim Souby of WGA, and Craig Bell of WSWC, participants were privileged to hear an explanation of the proposed rules from Don Brady of EPA. He explained that the proposed rules are really a proposal to change three rules. According to Mr. Brady, the proposal would clarify the process of listing waters and establishing TMDLs. Under the National Pollutant Discharge Elimination System (NPDES), it would provide a means to improve water quality pending establishment of a TMDL and also provide an additional means for obtaining a "reasonable assurance" that TMDLs will be implemented. Finally, the proposed rules would amend the Water Quality Standards (WQS) program, also seeking to improve water quality pending the completion of a TMDL.
In seeking to create a more comprehensive scheme, Mr. Brady explained that the proposed rules would require TMDLs to include an implementation plan that would address both point and nonpoint sources of pollution. State 303(d) lists would be required to contain all water bodies impaired or threatened by pollutants or pollution, although TMDLs would only be required for waterbodies impaired by pollutants. Mr. Brady explained that the definition of a "threatened" water is a waterbody that would be included on the 303(d) list within five years asserting that states have the ability to predict this. He also explained that states will be required to establish a listing methodology that will include factors used to evaluate data and methods for determining impairment to help the public understand how states make a listing determination. Mr. Brady also stated that although low flow may constitute "pollution" and that waterbodies may be listed as "flow impaired," TMDLs will not be required for "flow impairment." He explained that if a TMDL is prepared for a "pollutant," it will also have to address how the level of pollutant relates to flow. According to Mr. Brady, this would place a greater burden on reduction of pollutants in the presence of low flow levels.
States would be required to prioritize their 303(d) lists, completing TMDLs for those waters falling in the "high priority" category, which would include drinking water sources, waters where Maximum Contamination Levels are exceeded or listed waters that affect threatened or endangered species. Under the proposed rules, waters would remain on the list until WQSs are attained, until new data or information indicate the waterbody has attained WQSs, or until new data or information indicate that the water is no longer threatened.
The proposed rules would set forth the minimum required elements of a TMDL as including: the waterbody name and location; the existing pollutant load; the deviation of the load from the amount needed to attain WQSs; pollutant sources, by category or individual; the wasteload allocation for point sources; the load allocation for nonpoint sources; a margin of safety; an allowance for seasonal variation; an allowance for reasonably foreseeable growth; and an implementation plan. Mr. Brady explained that the implementation plan must provide: implementation actions; the timeline for implementation; reasonable assurances; necessary legal and regulatory controls; necessary time needed to attain WQSs; a monitoring plan; milestones to measure progress; and revisioning procedures. He also indicated that "reasonable assurances" must demonstrate that enforceable NPDES permits will be issued expeditiously to implement waste load allocations for point sources. For nonpoint sources, they must demonstrate by specific procedures and mechanisms that load allocations for the waterbody will be implemented.
Kim Kramer of the EPA explained that the two primary objectives of the proposed rules are to achieve "reasonable further progress," improving water quality in impaired waterbodies prior to creation of a TMDL,and to provide "reasonable assurance" that TMDLs, once established, will be implemented. She explained that "reasonable further progress" allows for offsetting pollutant loads through market-based pollution trading by large new point source dischargers or existing dischargers undergoing significant expansion. Ms. Kramer also explained that the proposed rules would allow EPA to re-issue expired state-issued NPDES permits, which would constitute an extension of authority to the EPA. This would apply to expired permits authorizing discharges to impaired waterbodies where water quality is inconsistent with WQSs in the absence of a TMDL or where inconsistent with an established TMDL. She also explained that authority would be extended to EPA to designate an animal feeding operation as a significant contributor of pollution and subject to the NPDES permit system, but only where EPA establishes a TMDL or finds that a state-established TMDL is insufficient.
During the afternoon of the first day of the workshop, two panels were convened to discuss the effect of the proposed rules on state listing requirements and its effect on TMDL development and implementation. Don Ostler, Director of the Utah Division of Water Quality, started things off, listing processes he felt would be affected by the proposed rules. Ron Micheli, Director of the Wyoming Dept. of Agriculture, detailed the impacts he believed would be felt by the agriculture community. Kim Graber, Legal Counsel to the National Wildlife Federation, believes that although the response of environmental groups to the proposed rules has been varied, they are a significant improvement over the current process, stating that it is clearly time to focus on nonpoint sources of pollution. John Roanhorse, of the Intertribal Council of Arizona, and formerly an FACA TMDL Committee member, indicated the importance of conflict resolution to tribes and stated their concern with data methodologies, as tribes' data is largely incomplete.
The second afternoon session began with remarks by Tom Stiles. Chief of Planning with the Kansas Department of Health and Environment, who explained his state's decision to follow the recommendations of the FACA TMDL Committee in preparing 103 TMDLs which were approved by EPA last June. He also stated that it is the states' prerogative to decide how implementation will be achieved and that micro-management by EPA will not produce the desired results. Buddy Morgan, Manager of the Montgomery, Alabama Water Works, expressed his belief that water quality will not improve through number crunching and continued "ratcheting down on point source dischargers." Nina Bell, of Northwest Environmental Advocates, believes that TMDLs will be the centerpiece that ties all other water quality programs together, with nonpoint source loading being the biggest problem that we face. She said her biggest disappointment with the proposed rules is that they do not allow for flow restrictions. Joe Miller, of the American Farm Bureau Federation, was disappointed that agriculture continues to receive most of the blame and indicated that these new regulations would only continue to promote the trend towards large corporate farms.
A summary of the first day's discussions was provided by Gary Beach, Administrator of the Wyoming Water Quality Division, and Mike Llewelyn, Administrator of the Oregon Water Quality Division. Mr. Beach felt that workshop participants were concerned with whether the proposed rules would actually strengthen the TMDL program. He also expressed their concern for the burden being placed on nonpoint sources, stating that "these proposals have not come to terms with how we address nonpoint source pollution." He also expressed concern for the timeline proposed by the rules, characterizing it as "unrealistic." Mr. Llewelyn indicated that states should have the flexibility in establishing TMDLs. He disputed the idea that Congress envisioned TMDLs as the centerpiece of water quality controls and wondered if the pollutant/pollution issue isn't a surreptitious way to get EPA into water quantity regulation.
Martha Pagel, Director of the Oregon Water Resources Dept., led Thursday's activities off, which focused on state watershed strategies and opportunities for water quality/quantity integration. She stated that water rights are facing many different questions today-"It's no longer just a question of priority." Ms. Pagel related seeing people come forward with different ways of managing the resource for long-term sustainability and doing business in new ways that get away from the strict division between state agencies responsible for water quality and quantity. She urged that government agencies working under rules established in the last century must be willing to take the risk of changing. She cautioned, however, that there must be respect for existing rights established under these rules. Gary Beach followed Ms. Pagel, expressing the fact that he is encouraged by his participation in a number of interstate commissions that are dealing with quality issues, commissions that were formed to address quantity issues. Although he agreed that states "must find a new way of doing business," he reiterated that this is a state issue, and not one for federal agencies to decide.
These remarks were followed by a series of case studies meant to provide examples of efforts to integrate water quality and quantity considerations within a watershed. The first case study focused on the East Canyon Drainage Basin, of which Park City is a part. Bob Morgan, Utah State Engineer, described the hydrology of the area and the existing relationships between the interested parties. Stating that communication between state departments and divisions is critical, he described a memorandum of understanding to that effect between the Utah Division of Water Quality and Dept. of Natural Resources. Jay Pitkin, Deputy Director of the Utah Division of Water Quality, described the current water quality situation in the East Canyon Basin, adding that the basin is water-short. He also described watershed stakeholder group efforts to evaluate impairment and methods for improvement. Rex Ausburn, General Manager of the Snyderville Basin Sewer Improvement District, questioned whether the State Engineer deals solely with water quantity issues and whether the Division of Water Quality deals solely with quality issues. He wholeheartedly endorses the watershed approach and supports flexibility for state authority over EPA control.
The next case study focused on the Upper Clark Fork Basin in Montana. Gary lngman, Bureau Chief of Monitoring and Data Management for Montana, provided a description of the Upper Clark Fork Basin, including the water uses and quality impacts. Gerald Mueller, Facilitator for the Upper Clark Fork Watershed Group, described the group's origin, processes and continued responsibilities. These included the creation of a management plan that was adopted with an almost unanimous vote and later enacted into law. He described the process of getting to this point as difficult. Stakeholders could barely stand to be at the same table initially, but over the years built new working relationships based on respect and trust. Holly Franz, attorney with Gaugh, Shanahan, Johnson & Waterman, spoke of some of the tools used to address quantity/quality problems in the basin, including leasing provisions, waste water reuse, drought planning, flow augmentation, return flow studies, ongoing groundwater studies, phosphate detergent bans, and a voluntary nutrient reduction program. Gerald Mueller then summarized some of the lessons learned through this process. He stated that while some issues require a top-down approach, such as the heavy metals problem being addressed through Superfund, nonpoint source issues must be addressed by voluntary, bottom-up approaches. Patience in building relationships and trust are necessary. Incentives to take voluntary actions, including funding, are critical, especially for farmers and ranchers, as they can't increase their prices to cover the additional costs involved.
The final case study revolved around the Klamath River Basin of Oregon. Jim Bryant, of the Bureau of Reclamation, provided participants with a brief history of the Klamath Basin and its complex development. Steve Kirk, of the Oregon Dept. of Environmental Quality, described the Klamath River TMDL as "the most difficult TMDL Oregon has ever attempted," with four state-line crossings. He indicated the state's commitment to working with citizen advisory groups and to the TMDL paradigm as stated by EPA. Bud Ullman, attorney for the Klamath Tribe, expressed the tribe's belief that they will be able to reduce the size of their reserved rights claim in the Klamath Basin Adjudication if water quality is sufficient. He also expressed the tribe's approval of Oregon's attempt to address water quality concerns in the alternative dispute resolution process accompanying the adjudication. Tracey Liskey, Klamath area rancher and TMDL committee member, urged citizens to be involved in process to be able to influence outcomes. He also expressed his concern that reoperation of the Klamath system will leave area agriculture short of water.
The case study presentations were followed by a roundtable discussion of issues addressed during both days of the workshop. Participants addressed concerns that an implication exists that the appropriation doctrine has somehow failed us by promoting water quality impairment. This implication was disputed by Karl Dreher, Director of the Idaho Water Resources Dept., who insisted that the right to the use of water has never included the right to return polluted water to a stream. He believes that if water use results in pollution, the remedy has to be paid for by the polluter. He argued that with the cost of water being "unbelievably cheap," the cost of restoring water quality should be passed on to users, referring to an earlier statement that the homeowners in the Park City area pay less for their water than they paid for the front doors of their homes. Mr. Dreher also contended that a right held for water quality purposes is a beneficial use under the appropriation doctrine.
Many participants expressed concern with the timeframe suggested by the proposed TMDL rules. They insisted that the tirneframe was unrealistic, and could not possibly allow states to do all that would be required under the new rules. Many participants were also concerned with the length of the comment period provided for such a far-reaching and extensive proposal. Don Brady of EPA, did announce to workshop participants that the decision had been made to extend the comment period by 60 days, until December 22. Another large concern of workshop attendees was the lack of adequate resources with which to complete the work contemplated by the proposed TMDL rules, on both the state and federal agency sides.
Participants suggested that WGA and WSWC put together a collection of all funding assistance programs available. It was also suggested that a future TMDL workshop look at institutional barriers that limit participation in incentive programs. Participants felt that more work should be done to bring the Clean Water Act (CWA) up to date in a statutory fashion and urged WGA and WSWC to do more in support of CWA reauthorization. Participants also expressed a need create incentives for agency personnel and water users to engage in risk taking in making the prior appropriation doctrine address water quality issues. Finally, attendees urged both WGA and WSWC to make comments on the timeframes, funding issues and state flexibility concerns regarding the proposed TMDL rules.
Both Craig Bell of WSWC and Shaun McGrath of WGA thanked participants for their attendance and reassured them that their comments would be taken very seriously.
Kim Kramer, EPA
Ensuring That TMDLs are Implemented
Reasonable Assurance
When establishing a TMDL, States allocate reductions of a particular pollutant among the pollutant sources in the waterbody. These sources may include both point sources and nonpoint sources. In allocating reductions to nonpoint sources, States must provide reasonable assurance that those nonpoint sources will meet their allocated amount of reductions. There are a variety of ways in which a State can provide reasonable assurance such as, through the implementation of pollution control measures, developing and implementing nonpoint source control plans and if available, other State regulations and policies governing such facilities.
Satisfying Reasonable Assurance Through the Issuance of an NPDES Permit
States may not be able to provide reasonable assurance that certain nonpoint sources will meet their allocated amount of reductions. In these instances, States authorized to administer the National Pollutant Discharge Elimination System (NPDES) program may designate these sources as point sources and require that they obtain an NPDES permit. Reasonable assurance is satisfied by designating these sources as point sources and issuing them an NPDES permit.
A State may choose not to designate these sources as point sources. By not designating these sources, EPA may find that the State failed to provide reasonable assurance. Because reasonable assurance is a required element of a TMDL, EPA may then disapprove that State's TMDL. If EPA disapproves a TMDL, EPA must establish the TMDL.
How Can We Ensure That
TMDLs, Once Established, Will Be Implemented?
Proposed revisions to the NPDES regulations:
Designation Authority for Animal Feeding Operations and Aquatic Animal Production Facilities
Authority to designate Animal Feeding Operations (AFOs) and Aquatic Animal Production Facilities (AAPFs) currently lies with the NPDES permitting authority. The permitting authority may be the State (where that State is authorized to administer the NPDES program) or the EPA Regional Administrator (in States that do not have the authority to administer the NPDES program) as the context requires.
EPA is proposing to allow the Regional Administrator to designate these sources even when it is not the permitting authority. This authority will be limited to instances where it is necessary to provide reasonable assurance that these sources will meet their allocated amount of reductions when EPA establishes a TMDL. The Agency believes that this authority is necessary because reasonable assurance is a required element of a TMDL.
Designation Authority for Discharges From Silviculture Operations
EPA is proposing to allow both States and the Regional Administrator to designate certain discharges from silviculture activities. EPA's authority to designate these sources will be limited to instances where it is necessary to provide reasonable assurance that these sources will meet their allocated amount of reductions when EPA establishes a TMDL. The Agency believes that this authority is necessary because reasonable assurance is a required element of a TMDL
Reissuing Expired Permits in Impaired Waterbodies
States with approved NPDES programs issue permits to point sources within their jurisdiction. When these permits expire, the State typically issues the permittee a new permit. In some instances, these permits expire and the permittee operates under an expired permit. Some of these expired permits are inconsistent with applicable TMDLs. Authorizing discharges under these permits frustrates the goals of the Clean Water Act by delaying the implementation of TMDLs. In these instances and when the State fails to act, EPA is proposing to allow the Regional Administrator to reissue these permits consistent with the applicable TMDL.
Improving water quality in impaired waterbodies pending the Establishment of a TMDL
Listing Impaired Waterbodies and Establishing TMDLs
States and Territories identify impaired waterbodies, those not meeting water quality standards. Lists of these waterbodies are provided to the public and EPA every two years. States then establish TMDLs for waterbodies on the list. TMDLs specify the reductions needed to meet water quality standards and allocate those reductions among the sources in the watershed. TMDLs can take up to 15 years to establish.
The National Pollutant Discharge Elimination System (NPDES) Program
The NPDES program protects public health and the environment through the issuance of permits to dischargers of pollutants from a point source into waters of the United States. These permits contain enforceable limitations and requirements that ensure that water quality standards will be met.
The Relationship Between Water Quality Standards, the TMDL Program and the NPDES Program
Water Quality Standards and TMDLs are in part, implemented through NPDES permits. While TMDLs are being established, NPDES permits may be issued to dischargers provided the discharge will not cause or contribute to a violation of water quality standards. After TMDLs are established, NPDES permits may be issued to new dischargers and reissued to existing dischargers provided the limitations and requirements within such permits are consistent with the TMDL.
How Can Water Quality Be Improved in
Impaired Waterbodies As TMDLs are Being Established?
Proposed Revisions to the NPDES and WQS
Regulations:
Offsets
EPA is proposing to require certain dischargers seeking to add new pollutant loads to an impaired waterbody to offset their proposed discharge. These dischargers will need to offset any increase in a pollutant(s) for which the waterbody is impaired by a specified amount.
What is an Offset?
An offset is a reduction in pollutant loads of a particular pollutant(s). These reductions can be obtained from an existing point source(s) and/or an existing nonpoint source(s).
Who must obtain an offset?
Dischargers who will be required to obtain these offsets are large new dischargers and large existing dischargers undergoing a significant expansion.
When must these offsets be obtained and for how long must they be maintained?
Offsets must be obtained before the discharger begins discharging. Offsets must be maintained until TMDLs are established and implemented.
Reissuing Expired Permits in Impaired Waterbodies
States with approved NPDES programs issue permits to point sources within their jurisdiction. When these permits expire, the State typically issues the permittee a new permit. In some instances, these permits expire and the permittee operates under an expired permit. Some of these expired permits are inconsistent with water quality standards. Authorizing discharges under these permits frustrates the goals of the Clean Water Act by delaying the implementation of needed water quality-based effluent limitations. In these instances and when the State fails to act, EPA is proposing to allow the Regional Administrator to reissue these permits consistent with water quality standards.
Panel One, Day One
Effect of Proposed Rule on State Listing Requirements
Bio's
Don Ostler (presentation materials)
Director of the Utah Division of Water Quality,
Utah Department of Environmental Quality
This Division is responsible for protecting and
improving the quality of lakes , streams and ground water by addressing the discharge of
pollutants from both point and non point sources.
Prior to his work with the Division of Water Quality, Don was a design engineer for the U.S. Bureau of Reclamation in Salt Lake City and Denver Colorado. He also served as a design engineer with the U.S. Forest Service in Salmon, Idaho and Salt Lake City.
B.S. Degree in Civil Engineering from the
University of Utah
Masters Degree in Civil Engineering from the
University of Utah
Registered Professional Engineer in Utah
Served as President of the national Association of
State and Interstate Water Pollution Control Administrators
Served as Chairman of the Western States Water
Council, Water Quality Committee
Member of the Utah Soil Conservation Commission
Ron Micheli
Director, Wyoming Department of Agriculture
Ron Micheli is a fourth generation rancher from Fort Bridger, Wyoming, where he has ranched for 24 years. He was appointed Director of Agriculture by Governor Jim Geringer on February 1, 1995. He received his Bachelor of Science degree from the University of Wyoming College of Agriculture. He was named outstanding student in the Animal Science Department. Mr. Micheli served 16 years in Wyoming's House of Representatives, and held positions as Majority Whip, Majority Floor Leader, Speaker Pro Tempore, and Chairman of the House Revenue Committee. He also served on the House Agricultural Committee. In 1991, he was honored as the "Outstanding Agriculturist" in Wyoming by the University of Wyoming's Ag Honoraria, Gamma Sigma Delta. In 1997, Mr. Micheli received the "Agriculture Citizen of the Year" award. He and his wife, Patty, have eight children.
Kim Graber (Appendix A: Presentation Outline)
Counsel, National Wildlife Federation
Effect of Proposed Rule on TMDL Development/Implementation
Bio's
Tom Stiles (presentation materials)
Chief of Planning, Kansas Department of Health and Environment.
Tom is in charge of developing the TMDLs in the state over the next eight years. He spent the previous 16 years at the Kansas Water Office, the state water planning agency, as a hydrologist, water resource manager and assistant director. In that capacity, he oversaw the development of the Kansas Water Plan and its implementation with the annual allocation of $16 million in State Water Plan Funds. He has a Bachelor's in Watershed Science from Colorado State University and a Master's in Forest Hydrology from the University of Minnesota. His early years of employment included collected water resource data from numerous locations in Montana, New Mexico and Utah.
Thomas R. "Buddy" Morgan
General Manager, Montgomery Water Works and Sanitary Sewer Board
Buddy Morgan is the General Manager of the Montgomery Water Works and Sanitary Sewer Board. He has a degree in Accounting from Troy State University and is a Certified Governmental Financial Manager.
He presently serves as the chairman of the AMSA Wet Weather Flows Committee and the Alabama/Mississippi AWWA Section "Water For People" Campaign. He also serves on the EPA Urban Wet Weather Flows Federal Advisory Committee and the SSO Federal Advisory Committee. Buddy is a member of the Water Environment Federation / Water Environment Research Foundation; American Water Works Association; Association of Metropolitan Sewerage Agencies; Association of Metropolitan Water Agencies; American Public Works Association; and serves on the Board of Directors for the Water Environment Research Foundation and the Association of Metropolitan Sewerage Agencies.
Nina Bell
Executive Director, Northwest Environmental Advocates
Nina Bell is Executive Director of Northwest Environmental Advocates (NWEA), a membership organization working in Oregon and Washington to protect and restore water and air quality, wetlands, and wildlife habitat in the Pacific Northwest. Under Bell's direction, NWEA's litigation includes lawsuits against U.S. EPA on inadequate water pollution management in Oregon and Washington (TMDL programs), against the City of Portland for discharges of untreated sewage (combined sewer overflows), and the Washington Department of Ecology for emissions from the Centralia Coal Plant (visibility program). Bell served on EPA's Federal Advisory Committee on TMDLs and the Policy Advisory Committee to the Oregon Department of Environmental Quality's 1992-94 Triennial Review of Water Quality Standards.
Bell, who has a J.D. from Northwestern School of Law, has been with NWEA since 1977 except for two years when she served as the Assistant Director of the Washington, D.C.-based Nuclear Information and Resource Service.
Joseph A. Miller
Livestock Policy Specialist and Environmental Legal Analyst, American Farm Bureau
Joe was raised on a diversified dairy and crop farm in northwest Indiana. He attended Brigham Young University where he received a B.S. in Agronomy. He also attended the University of California at Davis, receiving an M.S. in International Agriculture. He also received a law degree from the University of Arkansas, where he specialized in agricultural and environmental law.
Mr. Miller has worked for the University of Missouri Extension Service, the Indiana Farm Bureau, where he was Director of the Commodity Division, and was also in a private law practice in Arkansas for several years. He is currently the Livestock Policy Specialist and Environmental Legal Analyst with the American Farm Bureau.
Mr. Miller was the editor of Indiana Environmental Laws and wrote many of the chapters in the book. He also wrote "Commodity Futures Training Manual."
Opening Session, Day Two
State Watershed Strategies:
Opportunities and Challenges for
Management of Quality/Quantity Interrelationship...
Bio's
Stanley M. Martinson
Mr. Martinson is Chief of the State Water Resources Control Board's Division of Water Quality. His experience includes 34 years working on water quality related issues. For the last 26 years he has worked in various Board programs including regulatory, nonpoint source, and grants financial assistance activities. Stan's education includes a Bachelor of Science in Civil Engineering with emphasis on water quality from University of California, Davis and a Master of Science in Civil Engineering with emphasis on the environment from San Jose State University. He is a Registered Professional Engineer in California. The Division of Water Quality under Stan's leadership is currently dealing with the challenges of implementing a statewide watershed management initiative while dealing with the realities of numerous special focus water quality programs.
East Canyon Drainage Basin, Utah
Jay Pitkin (presentation materials)
Utah Department of Environmental Quality
There have in the past been issues raised as to the authority and policy of the Utah Water Quality Board with respect to reviewing and regulating stream diversions which may have an adverse affect on water quality. A diversion may reduce the amount of flow, thus adversely impacting the beneficial use (such as the fishery), or such diversion may reduce the flow available for dilution of downstream pollutants, either man-caused or naturally occurring, thus causing standards to be exceeded
In the past, the Board has not normally become involved in regulating or formally reviewing the impacts of such diversions. Their experience, rules and practices have been related to reducing, preventing and controlling the discharge of pollutants to waters of the state. While the Water Quality Board has relatively broad authority for protection of water quality, it has not attempted to supersede the State Engineer's authority in granting a right to divert water, and has deferred to the State Engineer as the person having the primary duty and authority to make decisions with respect to water diversions. The State Engineer, when making a decision on a water rights application, must consider, among other things, whether the diversion will "unreasonably affect public recreation or the natural stream environment, or will prove detrimental to the public welfare".
The Water Quality Board recently established a formal MOA with the State Engineer which provides that the State Engineer will notify the Division of Water Quality of requests for diversions that would present a water quality/quantity conflict, especially if upstream of a point source discharge. The Division would then evaluate the potential impact on water quality provide that information to the State Engineer, and be available for consultation with the State Engineer.
An example of this issue involves phosphorus enrichment in the East Canyon Creek watershed. A proposed diversion from East Canyon Creek was questioned because the diversion would reduce the average flows, and the amount of dilution for the downstream discharge from the Snyderville Basin wastewater treatment plant which serves the Park City area, and could have the effect of possibly requiring additional treatment for the discharge. Does such a water diversion therefore constitute 'pollution'? Fortunately, a cooperative effort with local stakeholders has been ongoing in the watershed to evaluate the sources and effects of phosphorus on East Canyon Creek and Reservoir. This ongoing effort has resulted in voluntary reductions of phosphorus from the treatment plant, as well as a study to better identify the nonpoint sources of nutrients and develop plans to reduce those inputs.
Rex Ausburn (Appendix B: Presentation Outline)
P.E., Snyderville Basin Sewer Improvement District
The East Canyon Creek watershed is tributary to the Weber River and the Great Salt Lake. The East Canyon drainage basin includes the East Canyon Reservoir and is located in Summit and Morgan Counties. Also located within the watershed are Park City, the town of Morgan, the Snyderville Basin Sewer Improvement District (SBSID), substantial primary and recreational development, ranching property and open range land. Various studies and reports indicate water quality in East Canyon Creek and Reservoir has been declining since the mid 1970s.
In the late 1960s Park City began to experience substantial growth due to the ski industry. In the 1970s the remainder of the Snyderville Basin began experiencing the same rapid growth which continues to the present. Some of the growth since the 1970s has been served by an increasing number of septic tanks. The first of two wastewater treatment plants owned and operated by the SBSID became operational in June 1980. While growth related issues were ongoing topics for public hearings, historical agricultural, construction, and erosion control practices were not being updated to meet the increasing water quality concerns.
In the early 1990s, several stakeholders in the East Canyon watershed became aware of substantial differences of opinion about how much and why the water quality was deteriorating. This voluntary group, known by several names including the East Canyon Water Quality Technical Advisory Committee, began to meet on a somewhat irregular basis and invited everyone interested in water quality and quantity in the watershed to participate. All entities with even a remote interest in the Creek or Reservoir have had the opportunity to attend and participate in the meetings. Since the original committee began, the entities participating on the committee and particularly the representatives of the various groups have changed. However, to the credit of those who do participate, the group continues to meet on a voluntary basis.
The major issues discussed by the Technical Advisory Committee include the impact of the wastewater treatment plant (the lone point source discharger), the impact of nonpoint source contributions, the effect decreasing stream flow has on the watershed, and how "achievable" corrective action should be equitably financed and on what schedule.
Before meaningful communication could occur, the preexisting biases of the participants had to be addressed. In some of the first meetings emotional questions and responses were part of the discussions. But as each participant became more knowledgeable of other perspectives, and more importantly, each stakeholder's interests and responsibilities, the dialogue became focused on facts and solutions.
The problems with water quality and water quantity in East Canyon Creek and Reservoir have not been resolved. In fact, not all stakeholders completely understand how closely related quality and quantity are in this watershed. Certainly, the parties have not yet reached an agreement on how the yet to be determined actions will be financed. However, to the benefit of all stakeholders several participants continue to meet and discuss/negotiate on action to improve the water quality and water quantity in the watershed .
Responses to Pre-Questions
From: Jay B. Pitkin
Utah Department of Environmental Quality
1.) With regard to your efforts to integrate water quality and water quantity, what is working in your particular effort? Are there particular institutional frameworks, policies or other arrangements which you can note are assisting your efforts?
The primary mechanism to coordinate quantity/quality issues between the Utah Division of Water Quality and the Utah Division of Water Rights is a Memorandum of Agreement between the two agencies. This agreement provides a mechanism by which the State Engineer would provide notification to the Division of Water Quality of major diversions upstream of permitted wastewater dischargers, and the Division of Water Quality will provide input to the State Engineer on potential water quality impacts prior to a decision being made on the approval of the diversion by the State Engineer.
2.) What did not work? Are there particular institutional frameworks, policies or other arrangements which are limiting your effort's ability to be successful?
We feel the above mechanism is working satisfactorily, and there has not been a need to attempt other mechanisms.
3.) What role have stakeholders had in the process?
These policies have been discussed a number of times in Water Quality Board meetings. With respect to specific proposals, any interested stakeholder has an opportunity to provide input through the formal public notice process used by the State Engineer.
4.) Are you using a "watershed" approach to develop strategies and solutions to your quality/quantity issues? If so, is the "watershed" approach providing the correct framework for the process to be successful? Have you identified problems with using a "watershed" approach?
Utah uses a watershed approach in assessing water quality, identifying problems, and developing plans to address those problems. Where there are water quantity/quality conflicts and issues, we feel this is an appropriate framework because of the involvement of local stakeholders in developing solutions to the water quality problems. However, to our knowledge such conflicts have been relatively rare.
5.) Are there particular components of your effort to address water quality/quantity issues that you would like to note to assist other similar efforts in the West?
Only as described above.
From: Rex Ausburn
Snyderville Basin Sewer Improvement District
1.) With regard to your efforts to integrate water quality and water quantity, what is working in your particular effort? Are there particular institutional frameworks, policies, or other arrangements which you can note that are assisting your effort?
Stakeholders are willing to cooperate with each other without the natural desire to meet personal goals at the expense of others. Cooperation requires each stakeholder to consider true "needs" rather than "wants" and to evaluate what "wants" can be given up to get their "needs".
Stakeholders are willing to truly communicate with each other, which requires listening as well as talking. Communication includes explaining perspectives so others can understand the point that is being made.
Stakeholders are willing to meet as a group over a sufficient amount of time without expectations of an immediate resolution of the issues. Patience requires stakeholders to understand that conditions are dynamic and additional data may become available which requires some rethinking of previous understandings.
2.) What did not work? Are there particular institutional frameworks, policies, or other arrangements which are limiting your effort's ability to be successful?
Historically, the State Engineer's Office, with responsibility for water rights (quantity), and the Division of Water Quality, with responsibility for water quality, have not cooperatively reviewed changes to water rights and wastewater discharge permits. The two divisions should participate as a "team" regarding water rights and treatment plant permit decisions.
3.) What role have stakeholders had in the process?
Those continuing to participate on the committee frequently discuss how to encourage more stakeholder involvement in the detailed discussions.
4.) Are you using a "watershed" approach to develop strategies and solutions to your quality/quantity issues? If so, is the "watershed" approach providing the correct framework for the process to be successful? Have you identified problems with using a"watershed"approach?
Participants on the committee seem to understand the effectiveness of taking a watershed approach to solving the quality, and hopefully quantity, issues. The process is still somewhat preliminary and the level of success cannot be evaluated. It appears from a "forward looking" perspective at the East Canyon watershed, a basin wide approach is the best method to solving quality and quantity problems. The length of time required to solve issues using a watershed approach may be a problem to some stakeholders.
5.) Are there particular components of your effort to address water quality/quantity issues that you would like to note to assist other similar efforts in the West?
Bio's
Jay B. Pitkin
Assistant Director of the Division of Water Quality, Utah Department of Environmental Quality
Native of Logan, Utah
B.S., Civil Engineering, 1967, Utah State University
M.S., Water Quality Engineering, 1968, Utah State
University
Worked for the Los Angeles County Sanitation Districts, and CH2M/Hill consulting engineers in Corvallis, Oregon before joining the Utah Bureau of Water Pollution Control in 1973.
Worked for the past 26 years in various capacities and programs related to water quality in the Utah Division of Water Quality, including: design review and permitting, EPA construction grant and loan program for communities, state water quality standards, and the nonpoint source control program. Extensive experience in dealing with EPA on many regulatory issues.
Rex Ausburn
General Manager, Snyderville Basin Sewer Improvement District (Park City, Utah)
Current Employment: 15 years
Bachelor of Science Degree in Civil Engineering,
University of Missouri
Registered Professional Engineer
Wastewater Licenses
Treatment Operator IV
Sewer System Operator IV
Utah Water Quality Board, 1992-99, Vice Chair
1998-99
Utah Permanent Community Impact Funding Board,
1997-99
American Society of Civil Engineers
Water Environment Federation/Water Environment
Association of Utah
Upper Clark Fork Basin, Montana
The Upper Clark Fork Basin Steering Committee was officially created by statute in 1991 to prepare a water management plan for the Upper Clark Fork River Basin. The Steering Committee was to balance all of the basin's beneficial water uses in ongoing planning and management of the waters in the basin. The Steering Committee is comprised of members representing a diversity of local, state and federal interests.
Recently, one of the Steering Committee's primary ongoing activities is voluntary water quality management planning. The 1997 Legislature passed HB 546 giving the Montana Department of Environmental Quality ("DEQ") three years to identify those Montana water bodies that have water quality problems and ten years to develop plans to address them. This act also directed DEQ to work with local watershed advisory groups such as the Steering Committee in developing and revising the list of water bodies with water quality problems and in developing water quality management plans to address them. The Steering Committee accepted DEQ's offer to act as a partner in this effort to further the Plan's goals, rooting Basin water planning and management at the local level and balancing all beneficial water uses.
To guide its water quality management planning activities, the Steering Committee adopted a work plan with two objectives. The first is the examination by local Basin water users of the state's list of water bodies with problems, i.e. those that either are not meeting water quality standards and are therefore "impaired," or which are likely not to meet the standards and are "threatened." This list is called the "303(d) list." The Steering Committee held a series of meetings throughout the Basin beginning in the fall of 1998 focused on the 303(d) list. These meetings allowed local water users to become acquainted with the 303(d) list and the data and processes that resulted in their local streams or water bodies being included on it. The local water users were afforded the opportunity to question the list and provide information that may relate to possible removal of specific listings.
The second objective is the development of pilot water quality management plans so that local water users and agencies can learn effective steps for developing plans leading to removal of basin water bodies from the 303(d) list. The Steering Committee selected a small number of candidate stream segments from DEQ's 303(d) list for immediate development of plans to correct the impairment and eliminate the actual or threatened non-support of one or more water uses. The Steering Committee met with the candidate stream water users and other potential partners and cooperators to seek their agreement for the pilot development. The pilots will run on a strictly voluntary basis. If the local water users are not supportive, development of the water quality management plan will not proceed. The Steering Committee does not recommend that local water users participate in a pilot unless they see an advantage for doing so. One significant potential advantage for participating is the availability of funding from state and/or federal agencies to support the pilot plan's water quality improvement activities.
Responses to Pre-Questions
From: Gerald Mueller
Consultant
1.) With regard to your efforts to integrate water quality and water quantity, what is working in your particular effort? Are there particular institutional frameworks, policies or other arrangements which you can note that are assisting your effort?
Montana has two legal frameworks and one policy that have been useful in the Upper Clark Fork River Basin regarding water quality/quantity issues. The first legal framework is Montana's water reservation process that allows public entities such as state and local government entities to reserve unallocated water for future uses including water quality protection. It was the potential for an expensive contested-case hearing regarding water reservation applications that stimulated an agreement between key basin water users and managers and the subsequent passage of a state law providing for the creation of the Upper Clark Fork River Basin Steering Committee and its mandate to develop a water management plan that balances the basin's beneficial water uses. The Steering Committee must include a cross section of the basin's water users, interests, and managers. The second framework addresses water quality/quantity more directly. Due in part to the efforts of the Steering Committee, Montana law now allows any water user or interest to lease existing water rights to provide instream flow to benefit the fishery. Because a lease cannot adversely affect existing water rights holders, leases have had limited, but real, usefulness in protecting instream flows. The policy, also stimulated by the Steering Committee, addresses water rights and the outflow of sewage treatment plants. The Montana Department of Natural Resources and Conservation has determined that no one has a water right for the outflow of sewage treatment plants, thereby making it possible to reduce nutrient loading of Montana river and streams by land application of treated sewage effluent.
The basic approach to improving water quality in non-point situations must be a voluntary approach which allows local water users to pursue specific actions that they believe will be a benefit to them. The scope of water quality/quantity issues in the Upper Clark Fork Basin and Montana generally is so large that sufficient resources and funding will never be available to pursue a comprehensive, mandatory police-style approach.
2.) What did not work? Are there particular institutional frameworks, policies or other arrangements which are limiting your effort's ability to be successful?
The limiting framework is Western and Montana water law and tradition. Attempts to improve water quality which threaten the basic first-in-time-first-in-right water rights system will be resisted by those who now control water use in rural areas and their political allies. Thus rather than following the apparently simple course of ordering rural water users, predominantly farmers and ranchers, to clean up their local streams and rivers, we must depend on a slower, cooperative approach. Ultimately, this is the only way to bring about lasting and widespread improvements to non-point water quality. Relying on cooperation requires trust which in turn depends on building relationships between people, people who work in regulatory and management agencies, people who use water for recreation, people who seek to protect environmental values, people who use water as inputs to agricultural and other industrial purposes, and people who manage public water supplies and sewage treatment plants. Particularly because of the distress of farmers and ranchers in today's agricultural markets and fiscal constraints on local governments, cooperative efforts to improve water quality will also require funding support from the state and federal governments.
3.) What role have stakeholders had in the process?
Stakeholders have been involved by design from the negotiations which produced the agreement which in turn led to the formation of the Steering Committee and its development of the basin water management plan. The stakeholders have included representatives of the basin's farmers and ranchers, recreation and environmental interests, utilities owning hydropower dams on the Clark Fork River, industry representatives, as well as representatives of local, state, and federal government agencies involved with the use, management, and regulation of the basin's waters.
4.) Are you using a "watershed" approach to develop strategies and solutions to your quantity/quality issues? If so, is the "watershed" approach providing the correct framework for the process to be successful? Have you identified problems with using a "watershed" approach?
Except for closing the upper Clark Fork River Basin to the issuance of most new surface water rights and establishing the basin-wide instream flow water leasing program, issues have been identified and addressed by sub-watershed, i.e. tributary drainage, rather than the entire basin. Breaking down the basin into sub-basins is necessary to involve local land owners and water users in a voluntary cooperative approach, which in my opinion is the only approach that ultimately will succeed. This approach requires time, an ongoing institution, the Steering Committee, and ongoing financial and staffing support from state and federal agencies.
5.) Are there particular components of your effort to address water quality/quantity issues that you would like to note to assist other similar efforts in the West?
While the threat of some distant regulatory action by the federal government may be necessary to stimulate attention and action, ultimately water quality/quantity problems in the West will only be addressed in a cooperative, voluntary framework. This framework, in turn, will depend on building people-to-people relationships and trust between water users and managers and regulators and on some kind of on-going locally based institution and on-going financial and staff support from state and federal agencies.
Bio's
Holly Jo Franz
Gough, Shanahan, Johnson & Waterman
Holly Jo Franz is a partner with the law firm of Gough, Shanahan, Johnson & Waterman located in Helena, Montana. Holly concentrates her practice in the areas of water, natural resources, and administrative law and government relations. She represents a variety of clients before state and federal courts, administrative agencies, and as a lobbyist at the Montana legislature.
Ms. Franz graduated, with high honors from the University of Montana School of Law in 1986. She is an active member of the Upper Clark Fork River Basin Steering Committee and the Big Hole River Watershed Committee. She is vice-chair of the Water Resources Committee of the American Bar Association's Section of Natural Resources, Energy and Environmental Law and is a contributor to the Section's publication "Year in Review." Ms. Franz is also the Montana reporter for the Rocky Mountain Mineral Law Foundation's Water Law Newsletter and is the President-elect of the Montana Water Resources Association.
Gerald Mueller
Consultant
Gerald Mueller has extensive experience in designing and leading planning and management efforts in watersheds including large basins such as the Missouri and Columbia River Basins as well as the Upper Clark Fork and Big Hole River Basins in Montana. Beginning with the Northern Lights Research and Education Institute Missouri River Project in 1988 and continuing through 1998 with The River Group, Mr. Mueller has assisted with the development of basin wide planning and management institutions and with a consensus basin-wide operational plan and management goals for the Missouri River. In 1981, Mr. Mueller was appointed by Governor Ted Schwinden to serve as one of Montana's original Members of the Northwest Power Planning Council, a four state interstate compact body charged with planning to assure the Pacific Northwest an adequate, affordable, and reliable electricity supply, and with mitigating the adverse impacts of the region's hydroelectric system on Columbia basin fish and wildlife. He held this position until 1988. In Montana, Mr. Mueller led a negotiating effort resulting in 1991 state legislation creating the Upper Clark Fork River Basin Steering Committee, one of the state's first locally instigated collaborative watershed planning and management groups. He has served as the facilitator for that group from its inception through today. For the Montana Consensus Council, Mr. Mueller acted as co-facilitator through the formation of the Big Hole Watershed Committee.
Since 1988, Gerald Mueller has focussed a private consulting practice on resolving complex, multi-party disputes involving energy and natural resources outside of the legal system. For public and private sector clients, he has designed and led processes that have built agreements regarding several natural resource and energy topics.
Mr. Mueller has fourteen years experience in Montana state government. In addition to his seven years as a member of the Northwest Power Planning Council, Gerald served from 1978 to 1981 as an energy and natural resource advisor to Lt. Governor and then Governor Ted Schwinden. Mr. Mueller began his professional career in 1974 in the Energy Planning Division of the Montana Department of Natural Resources and Conservation, first as an air analyst and later as program manager for the Major Facility Siting Act.
Gerald received a Master of Science Degree in Atmospheric Science from Colorado State University in 1974, and a Bachelor of Arts Degree in Physics from California State University at Fullerton in 1971. He is a member of the Society for Professionals in Dispute Resolution.
Gary Ingman
Montana Department of Environmental Quality
Gary Ingman is a biologist with 15 years of monitoring, assessment and water quality management planning experience in Montana's Clark Fork of the Columbia River Basin. He is currently the chief of Montana DEQ's Monitoring and Data Management Bureau, and a member of the Upper Clark Fork River Basin Steering Committee (whose activities are profiled in this panel presentation).
Introduction
The Klamath basin is located in south central Oregon and northern California. The basin is divided into five subbasins identified as the Sprague, Williamson, Upper Klamath Lake, Upper Klamath Lake Butte, and the Lost River. Nutrient rich water from the Upper Klamath Lake is the dominant source of natural background quality for the Klamath and Lost Rivers. The Lost River realizes the peak impacts from the lake during the summer irrigation season. The trophic status, or degree of nutrient enrichment, of the Upper Klamath Lake is classified as hyper-eutrophic. As a result, the quality of the lake water flowing downstream to the Klamath and Lost Rivers often exceeds the state's water quality standards for various parameters before it enters these rivers. Water discharging from the lake already exceeds these prescribed levels much of the time. That is not to imply that the over-abundant algae population in the lake is derived only from "natural" sources of nutrients. On the contrary, human activities have in all likelihood accelerated the rate of eutrophication by contributing nutrients from various pathways such as point source discharges and management of the land over the past century.
Stakeholder Involvement
A TMDL process is being developed to improve water quality in the Upper Klamath Basin including Klamath River, Lake Ewauna, Lost River, Williamson River, Sprague River, Sycan River, Upper Klamath Lake, Agency Lake and associated tributaries ( see the attached figure). It is based on the recommendations of the Klamath TMDL Advisory Committee. A citizens advisory committee was originally impaneled by the Department of Environmental Quality (DEQ) in November of 1995 to provide local input on ways to improve the water quality of the Klamath River from Link River to Keno Dam. The geographic area, or scope of the planning process, was later expanded to include a broader watershed approach. Citizens advisory committees are comprised of people from Klamath County, Oregon who represent a wide-range of interests in water quality, the local economy, and community-related issues. The DEQ provides staff support for the advisory committee process.
Summary of Impaired Waters in Upper Klamath Basin (Oregon's 303(d) List)
The majority of 303(d) listed stream segments in Upper Klamath Basin are listed as impaired for temperature. Other waterbodies including Upper Klamath Lake, Klamath River, Sprague River, Lost River are listed as impaired for dissolved oxygen and pH.
Designated Beneficial Uses in Upper Klamath Basin
Each basin in Oregon has designated beneficial uses for water quality. These designated uses will vary slightly from basin-to-basin depending on climate and other factors unique to each geographic area. The state's numeric and narrative water quality standards define the quality of water needed to support those designated beneficial uses. If a stream consistently violates these standards it is assumed that beneficial uses are not supported, or they are only partially supported. A management plan is necessary under these circumstances to improve water quality by reducing pollutants from humans. The total maximum daily loads (TMDLs) are a means of quantifying the pollutant reductions necessary to achieve standards and fully restore beneficial uses. Table 1 is a summary of the designated beneficial uses for the Klamath Basin.
Table 1 Beneficial Uses Designated for the Klamath Basin
| Beneficial Uses | Klamath River from Klamath Lake to Keno Dam | Lost River and Lost River Diversion | All Other Basin Waters |
| Public Domestic Water Supply (1) | X | X | X |
| Private Domestic Water Supply (1) | X | X | X |
| Industrial Water Supply | X | X | X |
| Irrigation | X | X | X |
| Livestock Watering | X | X | X |
| Salmonid Fish Rearing (2) | X | ||
| Salmonid Fish Spawning (2) | X | ||
| Resident Fish & Aquatic Life | X | X | X |
| Wildlife & Hunting | X | X | X |
| Fishing | X | X | X |
| Boating | X | X | X |
| Water Contact Recreation | X | X | X |
| Aesthetic Quality | X | X | X |
| Hydro Power | X | ||
| Commercial Navigation & Transportation | X |
| 1. With adequate pretreatment and natural
quality to meet drinking water standards 2. Where natural conditions are suitable for Salmonid fish use |
Responses to Pre-questions
From: Steve Kirk
Oregon DEQ
1.) With regard to your efforts to integrate water quality and quantity, what is working in your particular effort? Are there particular institutional frameworks, policies or other arrangements which you can note that are assisting your effort?
Currently, Oregon Department of Environmental Quality (DEQ) is collecting water quality data to develop TMDLs for temperature, dissolved oxygen and pH in the Sprague River, Sycan and Willamson River watersheds. The water quality modeling approach utilized for developing TMDLs in these watersheds will probably include simulating a reduction of pollutant sources coupled with several flow scenarios to achieve water quality standards.
The Alternative Dispute Resolution (ADR) process has been an excellent opportunity to present water quality initiatives such as the TMDL process in the context of water quantity negotiations.
Following development of load and waste load allocations for the Upper Klamath Basin, potential community-based actions to assist in achieving load and waste load allocations include: a) water conservation measures, b) application for in stream water rights, c) purchasing water rights for in stream needs, and 4) leasing individual water rights for in stream needs.
2.) What did not work? Are there particular institutional frameworks, policies or other arrangements which are limiting your effort's ability to be successful?
Many challenges related to water quantity/quality issue await the completion of TMDLs in the Upper Klamath Basin. Water management within the Klamath Project which includes the Lost River Sub-Basin provides the agricultural community with water to support the $200 million/year agricultural economy within the basin. The Lost River has been highly modified to achieve this objective. TMDL modelers are challenged by the aspects of this highly modified hydrologic system, including reversal of flow, no flow and numerous water diversions
Although the ADR has been an excellent opportunity to present TMDL process to the stake holders. The response by the agricultural community to linking these processes has been minimal.
3.) What role have stakeholders had in the process?
Oregon DEQ has facilitated the formation of two TMDL Citizens Advisory Committees in Upper Klamath Basin. Citizen Advisory Committees represent a mixture of individuals and stakeholder groups to ensure a balanced approach to resolving issues. The purpose of the Citizens Advisory Committees is to assist DEQ with modeling scenarios to attain water quality standards, recommend load and waste load allocations for the TMDL, recommend strategies to achieve waste load and load allocations.
4.) Are you using a "watershed" approach to develop strategies and solutions to your quality/quantity issues? If so, is the "watershed" approach providing the correct framework for the process to be successful? Have you identified problems with using a "watershed" approach?
Oregon DEQ is committed to a watershed approach to TMDLs. Efforts to develop TMDLs on the mainstem of the Klamath from Link River dam to Keno were not successful. EPA requested DEQ to adopt a broader watershed approach which included the headwaters of Upper Klamath Basin.
A potential problem with adopting a broad scale watershed approach is data requirements for developing TMDLs can be very large.
5.) Are there particular components of your efforts to address water quality/quantity issues that you would like to note to assist other similar efforts in the West?
DEQ's experience in developing TMDLs has shown that meeting water quality standards may require a combination of environmental conditions including reduction of pollutant loads from anthropogenic sources, enhancement of riparian conditions and in many cases increasing stream flows during critical time periods. In some cases, water quality standards may not be achieved without flow augmentation.
From: Reed Marbut
Oregon Water Resources Department
1.) With regard to your efforts to integrate water quality and water quantity, what is working in your particular effort? Are there particular institutional frameworks, policies or other arrangements which you can note that are assisting your effort?
Oregon has in place legal systems for determination of water rights, procedures for protection of instream flows, evaluation of stream-specific water quality conditions, formulation of water quality standards, and development of land use programs to address non-point source pollution.
However, Oregon is only just beginning to develop policies for integration of water quantity and quality. These first efforts revolve around protection of instream flow levels in water quality limited streams. These efforts include withdrawal of water quality limited streams from further appropriations, certificating instream water rights on streams with National Pollutant Discharge Elimination System (NPDES) permits (to protect existing flow levels necessary for dilution of pollutants).
The Klamath Basin will likely be the first test of a coordinated integration effort in Oregon. A number of instream flow claims have been filed in the Klamath River adjudication. In addition, the Oregon Department of Environmental Quality (ODEQ) has begun its TMDL investigation in the upper portion of the Klamath Basin. Lastly, the Oregon Department of Agriculture (ODA) has initiated its program for establishing agricultural practices to define non-point source run-off limits.
2.) What did not work? Are there particular institutional frameworks, policies or other arrangements which are limiting your effort's ability to be successful?
It is too early to identify what will be successful strategies, or conversely, unsuccessful efforts. We do know that local agricultural operators are very apprehensive about the concept of integration of procedures for quantifying water rights (adjudication of water rights) and procedures for evaluation of water quality conditions, not to mention programs for improvement of water quality.
Again, the Klamath Basin may be the testing ground for this integration.
3.) What role have stakeholders had in the process?
The stakeholders in an adjudication are the water right holders and claimants. The stakeholders associated with determination of water quality conditions and in improving water quality are the land owners whose operations contribute to degraded water quality and the entities who seek to improve water quality. Only where degraded water quality requires instream flow enhancement do the issues associated with water use (water right diversions) come into conflict with efforts to improve water quality. Given that the Klamath Tribes have filed massive claims to protect instream flows in the Klamath River adjudication, the issues surrounding allocation of water for consumptive uses (irrigation) on the one hand are on a collision course with protection of instream flows on the other hand.
In general, the water quality issues in the Klamath Basin (Panel 3 - Sept. 23) revolve around non-point source pollution. Non-point source issues in turn revolve around land use activities. In a rural area like the Klamath Basin, the land use activities associated with water pollution conditions are predominantly associated with agricultural and timber management.
Therefore, the stakeholders in the water quantity determination are also the stakeholders in the water quality arena.
4.) Are you using a "watershed" approach to develop strategies and solutions to your quality/quantity issues? If so, is the "watershed" approach providing the correct framework for the process to be successful? Have you identified problems with using a "watershed" approach?
Yes. Using the watershed approach creates conflicts over water quality issues that might not be present in using a subbasin approach; however, it would not be possible to develop comprehensive, long-term solutions to water quality degredation without using the watershed approach.
In addition, determination of water rights, must be based on a full watershed allocation system (general stream adjudications are watershed determinations). Therefore, whether we like it or not, we must consider the watershed as a whole.
Are there particular components of your effort to address water quality/quantity issues that you would like to note to assist other similar efforts in the West?
Good question. We may be able to give a better answer in a year. Our effort to integrate a comprehensive determination of water rights with programs to improve water quality are just beginning.
There is one area where our efforts to integrate water quality and quantity issues may provide a template for other states. That is our instream water right program. Under this program the ODEQ can file for instream water rights for minimum flows to protect water quality. Often these instream rights are combined with the NPDES procedure.
Bio's
Steve Kirk
TMDL Coordinator, Oregon Department of Environmental Quality
Registered Professional Geologist
M.S. Hydrology-Hydrogeology, Mackay School of Mines,
University of Nevada, Reno
Mr. Kirk has 15 years of experience in point and nonpoint source evaluation, feasibility studies and environmental restoration projects. Currently, Mr.Kirk is serving as a basin coordinator for the Upper Klamath Basin TMDL process.
Carl Ullman (presentation materials)
Director of the Water Adjudication Project for the Klamath Tribes
Carl Ullman is the Director of the Water Adjudication Project for the Klamath Tribes. He is responsible for representing the Tribes' water interests in various forums including federal and state courts and the Oregon Department of Water Resources' Klamath Basin Adjudication. He has worked in the field of Indian natural resources for eighteen years and in water law for eleven years.
He was previously the Attorney General of the Federated States of Micronesia where his responsibilities included negotiation of international treaties regarding native sovereignty, ocean fisheries, and nuclear weapons and testing controls. Prior to that service he was Managing Attorney in the Office of the Reservation Attorney of the Quinault Indian Nation.
Mr. Ullman earned his LL.M. in 1988 from Yale University, his J.D. in 1976 from the University of Washington, and his B.A., cum laude, in 1970 from Knox College. He is admitted to the bars of the U.S. Supreme Court, the Court of Appeals for the Ninth Circuit, federal and state courts in Oregon and Washington, and the Federated States of Micronesia.
James K. Bryant (presentation materials)
Chief, Water & Lands Division
Jim has worked on the Klamath Project for over 33 years gaining an extensive knowledge of the development and hydrology of the Klamath Basin. Jim currently is the Chief of the Water and Lands Division. His responsibilities include management of all water storage and conveyance facilities, flood operations, leasing of 24,000 acres of farmland, water conservation activities, administration of water service contracts and land management activities. Prior to migrating to the Klamath Basin Jim spent several years working in engineering design with Reclamation at various construction projects in California.
OUTLINE
EFFECTS OF
EPA'S PROPOSED NEW TMDL REGULATIONS
ON CONSERVATION AND ENVIRONMENTAL INTERESTS
RELATING TO
LISTING AND DELISTING
OF IMPAIRED WATER BODIES
Presentation to
Western Governors' Association
Workshop
September 22, 1999
Park City, Utah
by
Kimberly J. Graber
Counsel
National Wildlife Federation
2260 Baseline Road, Suite 100
Boulder, CO 80302
303/786-8001
Thanks to the WGA for inviting me here to provide
an environmental viewpoint on the impact EPA's new TMDL rule may have on
"listing" and "delisting" issues
At the outset, though: I can't speak for all conservation and environmental interests with
a single voice
That being said, I think it's relatively safe to say that the environmental community as a whole views the more stringent and comprehensive listing and delisting provisions as a positive step in the right direction toward restoring our Nation's 20,000 polluted rivers, lakes and estuaries, more than 300,000 impaired river and shoreline miles, and more than 5 million acres of degraded lakes.
It's also clearly time to focus on the regulation and reduction of non-point sources of pollution
I'd like to be able to say EPA's proposed rule
will lay to rest the battle about whether non-point sources are covered by § 303(d) - but
somehow I don't think the issue has gone away quite yet . . . .
From an environmental and conservation standpoint, our primary interests and issues
regarding listing and delisting of impaired water bodies have included:
Getting all impaired and threatened water bodies included on State § 303(d) lists for
implementation of effective on-the-ground TMDLs in a timely manner
A second interest has been in assuring that impaired water bodies remain listed until water quality standards are actually attained
Third, we have an interest in assuring meaningful citizen participation in the listing process (as well as TMDL development)
Using these concerns as a measurement, the proposed TMDL regulations regarding listing and delisting are a significant improvement over existing practice . . . . and should help achieve the goal of getting impaired and threatened water bodies in line for restoration
For example - pro's and con's of proposed regulations:
Pro: Requiring States to publish their listing "methodology" and take public comment
Pro: The new rule's provisions regarding a more comprehensive § 303(d) list will also address some of the concerns and interests I mentioned earlier
Pro: Prioritization of high, medium and low priority waters should help agencies focus management of scarce resources more efficiently
Con: Application of a 15-year time period to develop TMDLs would also adversely impact our listing interests
Pro: Our interests are met by the proposed rule's requirement that waters remain on State § 303(d) lists until they have attained water quality standards - that is, after all, the purpose of the Clean Water Act
As several commentators have already observed, the effectiveness of the listing and implementation process hinges on whether State regulators insist on stringent efforts to restore polluted waters - and whether EPA intervenes if State efforts fail
My only exposures to State response to the proposed TMDL regulations don't bode well, however:
EAST CANYON WATERSHED
Presentation Summary by
Rex Ausburn, P.E.
General Manager
Snyderville Basin Sewer Impr. Dist.
Park City, Utah