Report No. 14
Idaho Water Quality Policy for Nonpoint Source Pollution: A Manual for Decision-Makers
Executive Summary
(Part 3)

Focus Questions and Short Replies.-- The purpose of the report is achieved by focusing on four critical questions. This Executive Summary poses each of the questions guiding the analysis and provides short replies to them. The body of the report is organized similarly. Each focus question is a chapter title, wherein may be found analysis supporting the replies in this Executive Summary. Chapter sub-headings are stated as questions, with replies providing information needed to address the main theme of each chapter.

Analysis of Key Issues.-- During the process of designing the focus questions and developing replies to them, two key program issues arose: [1] what is a cost-effective approach for monitoring nonpoint source pollution, and [2] what is a cost-effective approach for controlling nonpoint source pollution? Replies conclude this Executive Summary.

1. What does the Clean Water Act require?

The purpose of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the nation's waters" with a goal of attaining "fishable and swimmable" water conditions wherever possible. The Act requires states to develop water quality standards for each body of water, conduct assessments to determine if the standards are being met, identify sources of water pollution, and implement programs to control pollution. Monitoring is essential for determining whether standards are met and pollution control programs are effective.

During the 1970s and 1980s, CWA implementation emphasized "technology-based" controls for reducing water pollution from readily identifiable point sources such as municipal sewage treatment plants and wastewater discharge pipes from industrial facilities. The United States invested hundreds of billions of dollars to control point source pollution (Novotny and Olem 1994). Groundwork was laid for nonpoint source pollution control through section 208 of the CWA through areawide plans requiring the identification of land-use activities causing nonpoint source pollution and procedures to control such sources to the extent feasible.

By the mid-1980s nonpoint source pollution came to be recognized as the nation's "biggest water quality problem" (EPA 1991a). In 1987 Congress passed amendments adding section 319 to the CWA. This required the EPA to shift attention from nonpoint source program planning to implementing programs with actions to control polluted runoff. Unlike point source control programs regulated by the EPA, Congress allowed the states to retain the principal responsibility for the design and implementation of nonpoint source control programs.

The "water quality-based" approach to pollution control can be illustrated (seeFigure 1) as a cyclical process consisting of eight stages. Each stage is a major CWA program involving regulatory requirements and guidance documents from the EPA. The process begins with state water quality standards (or WQS on Figure 1) in stage 1 and eventually relies on the establishment of pollution source control program actions in stage 6. The TMDL ("total maximum daily load") in stage 5 is a tool linking state water quality standards to pollution control actions.

Through monitoring activities in stage 7, TMDLs may be modified in stage 8, which then cycles back to the beginning where water quality standards (WQS) may be revised (EPA 1995a, see Figure 1).

Because of their importance, additional details follow on state water quality standards and pollution control programs. Also following are summary sections on two current issues in Idaho--"outstanding resource water" (ORW) designation and the "total maximum daily load" (TMDL) process.

What are water quality standards?-- The principle mechanism for fulfilling the purposes of the CWA is water quality standards. Each state determines its water quality standards, consisting of designated beneficial uses for each of the state's waters, criteria indicating whether the uses are being supported, and an "antidegradation" policy statement.

Designated uses must support the "fishable/swimmable" goal of the CWA. Approximately 90% of the stream miles in Idaho do not have designated uses (Millam 1995), and fall back on a default use of "primary contact recreation" or swimming. This default designation does not address the "fishable" goal of the CWA (IDEQ 1996). The EPA's "antidegradation" policy requires that protected beneficial uses must also include "existing uses" of the waters that were attained on or after November 28, 1975, whether or not the "existing uses" are currently present.

Criteria are related to chemical, physical, or biological characteristics of the water body and may be numeric or narrative. It is not possible to develop realistic numeric criteria for some contaminants; sediment is one example. Narrative criteria can be either general statements prohibiting certain actions or conditions--for example, Idaho's sediment criterion asks "Is the water body free from excess sediment in quantities that impair designated beneficial uses?" (IDEQ 1996)--or positive statements about what is expected to occur in the water--for example, "water quality and aquatic life shall be as it naturally occurs" (EPA 1990).

An "antidegradation" policy statement is required in the state's water quality standards not by Congress through the CWA, but through the EPA's regulatory powers. This means states must have a policy indicating an intention to protect existing water quality where it exceeds the standards. Idaho Code ( 39-3603) makes such a statement. At least one legal commentator (Morgan 1991) and some technical commentators (Burk et al. 1995) have argued that the EPA's antidegradation regulation needs clarification and revision if it is to become a meaningful policy concept.

Are "outstanding resource waters" (ORWs) required?-- ORWs are closely related to Outstanding National Resource Waters (ONRWs), which are part of the EPA's "antidegradation" policy. Neither ORWs or ONRWs are explicitly required by the CWA. Although the terms ONRW and "antidegradation" are nearly invisible in the CWA, they are featured in the Water Quality Standards Regulation promulgated by the EPA (40 CFR 131.12).

What is a TMDL?-- "Total maximum daily load" (TMDL) is a process for gathering information about pollution sources. Tables 1a and 1b outline the key features of a TMDL. These features may change because the EPA has convened a FACA TMDL committee that may end up modifying the concept of TMDL implementation (see EPA 1996b).

Source: Clearwater Basin Advisory Group (CBAG 1996); Draft TMDL Program Implementation Strategy (EPA 1996b).

Source: Clearwater Basin Advisory Group (CBAG 1996).

When is a TMDL required?-- A TMDL is needed for waters that are not expected to meet water quality standards after pollution control requirements are implemented (40 CFR 130.7(b)). A TMDL allocates pollution control responsibilities among pollution sources in a watershed, and is the basis for taking the actions needed to restore a water body (EPA 1996b). The TMDL concept involves identifying the type of pollution, where the pollutant comes from, how much of the pollutant the water can assimilate and be within the water quality standards, and the allocation of amounts of the pollutant each source can discharge into the water body. Application of the TMDL concept poses technical (Griffin et al. 1991) and political difficulties (Novick et al. 1994). Information produced by the TMDL process links water quality standards with pollution control programs (EPA 1995b).

How are sources of pollution controlled?-- The ultimate objective of the CWA is placing enforceable restrictions on sources of pollution (Novick et al. 1994). Under the CWA, federally enforceable controls are limited to those for point sources through a permitting process (EPA 1991b). Congress reserved for the states the right to determine how polluted runoff from land use is controlled to meet the purposes of the Act. The control of nonpoint source pollution depends on effectively designed best management practices (BMPs) and their implementation by forestry, mining, grazing, and agricultural operators. Table 2 provides examples of BMPs.

Source: Guidance for Water Quality-Based Decisions: the TMDL Process (EPA 1991b).

In nonpoint source programs under the CWA ( 319(b)(2)), states must identify BMPs and other control mechanisms and identify programs to implement BMPs. The EPA has sign-off approval authority over state nonpoint source control plans and programs.

Agriculture is the leading source of water quality impairment in the nation, affecting 60% of the stream miles surveyed and 50% of the lakes surveyed (EPA 1995b, see Table 3). Agricultural activities, including grazing, impacted 45% of the stream miles surveyed in Idaho in 1988, more than any other source of pollution (IDEQ 1989, see Figure 2). Forestry or silvicultural activities affected 17% of Idaho's stream miles. Hydrological or habitat modification affected 30% of the stream miles, and is a secondary effect of agriculture, grazing, and forestry activities; its portrayal on Figure 2 actually is a double-counting of the effects of these activities.

Although sedimentation is a natural process from soil erosion and runoff, it can also be a water pollutant when it is produced as a result of land-use activities. Controlling sources of sediment pollution through the installation of BMPs is the major water quality policy issue in Idaho.

Idaho uses both regulatory and nonregulatory approaches for BMPs for nonpoint source pollution control. The Idaho Forest Practices Act (Idaho Code 38-1301 et seq.) has required the use of best management practices (BMPs) to control runoff from forestry or silvicultural practices since 1974. Mining BMPs are also required. Agriculture and grazing water pollution control programs rely on voluntary installation of BMPs by farmers and ranchers. The issue of how effective these different approaches are is taken up at the end of the Executive Summary.

Source: The Quality of Our Nation's Waters: 1994 (EPA 1995b).