linked States Region 8 Office of Environmental Protection 1860 Lincoln Street Analysis and Evaluation Agency Denver, Colorado 80295 Januarv 1980 &EPA 208 Plan Certification and Approval Anaiysis and Status of Pending PSans ------- i). 17 I Final er QOO}> 0*2- 208 PLAN CERTIFICATION AND APPROVAL: STATUS AND ANALYSIS OF PENDING PLANS REGION VIII Planning and Management Branch Water Division Office of Analysis and Evaluation Management Division January 1980 Prepared by ------- TABLE OF CONTENTS Acknowledgements 1 Summary of Conclusions and Recommendations 2 I. INTRODUCTION 4 II. BACKGROUND 4 III. PROCEDURES 7 IV. 203 PLANS LACKING STATE CERTIFICATION OR EPA APPROVAL 7 A. Background 7 B. Unresolved Issues/Problems which are resulting in delays to Plan Certification and Approval 12 C. Implications for Continued Funding of 208 Agencies Lacking Plan Certification or Approval 17 D. Conclusions 19 E. Recommended Actions 22 V. DETAILED ANALYSIS OF THE 208 PLAN APPROVAL PROCESS 24 A. Background 24 B. Reasons Cited for Delays 24 C. Recommendations for Improving the Process 30 VI. APPENDICES 1. Chronologies of 208 Plan Approvals 33 2. 208 Questionnaire on Plan Approvals 46 3. Typical Workload for a 208 Project Officer During Past Year & a Half..49 ------- Acknowledgements This report was prepared jointly by the Planning and Management Branch (Water Division) and the Office of Analysis and Evaluation. The Planning and Management Branch provided information on 208 plan certification and approvals, identified existing problems and recommended a course of action to remedy the problems. Rick Claggett, Roger Dean, Doug Johnson, Mike Streiby, Bruce Zander, and Pat Godsi 1 were the key individuals who provided this information to the Office of Analysis and Evaluation. Terry Anderson of the Office of Analysis and Evaluation was responsible for collating and analyzing this information and making recommendations to the Program Office regarding solutions and future program direction for them to consider. Terry Anderson is the principal author of this report. Martha Nicodemus, Paul Ferraro, and Pat Godsil provided editorial assistance. -1- ------- SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS Of twenty-eight (28) plans within Region VIII there are ten (10) that have not been certified to EPA and five (5) others awaiting EPA approval. The most significant reasons that these plans have not been approved are due to delays resulting 1) from changes in 208 staff or 2) deficient draft 208 plans which required many months to revise. All of the outstanding plans though are expected to be conditionally approved by EPA once they are completed and certified. Those 208 agencies that have had a poor record in 208 planning are either voluntarily relinquishing their 208 responsibilities or funding constraints are forcing them to reduce or eliminate their involvement in 208 planning. Prior to fiscal year 1979, there were no direct consequences of not having a certified or an approved 208 plan. Today, the lack of certification and approval results in the withholding or loss of 201 and/or 208 funds. Specific recoircnendations for those plans lacking certification or approval are: 1. A firm schedule should be developed in cooperation with each state as to when 208 plans will be certified to EPA. This schedule should provide the basis for formulating future regional positions in respect to 208 funds. 2. Region VIII should continue to implement the April 2, 1979 regional policy which requires a 208 agency to have a certified plan in order to expend FY 1979 funds. 3. Region VIII should implement the FY 1980 funding policies and May 23, 1979 regulations as they affect the award and expenditure of future 208/201 funds. No 201 grants should be awarded to applicants not covered by an approved 208 plan and no FY 1980 208 funds should be awarded to 208 agencies lacking an approved 208 plan unless the criteria for exceptions are satisfied. 4. EPA should take no longer than 30 days to approve 208 plans once they are certified. 5. The Governor of Wyoming needs to be contacted and the implications of not having plan certification and approval need to be explained to him. The only aspect of the 208 certification and approval process for which EPA has complete responsibi 1 ity is approval of plans. As of January 1, 1980, EPA had approved thirteen (13) plans. The average approval time per plan has been 183 days. The 1975 regulations allowed EPA 120 days to approve a certified plan once it was received by EPA. The 1979 regulations which superseded the 1975 regulations allows EPA and the State 120 days to concurrently review and certify the final plan. EPA has an additional 30 days beyond the 120 days to complete its approval of the 208 plan. -2- ------- The most common reasons cited to explain the length of time taken to approve a 208 plan are as follows: 1. Lack of familiarity with a 208 plan within EPA after receiving a certified plan. 2. Approval of 208 plans were given lower priority than other activities. 3. The individuals responsible to prepare approval letters experienced a significant increase in workload about the time the plans were being submitted to EPA for approval. 4. Prior to Spring of 1979, no serious consequences resulted from not having either a certified or an approved plan. Due to the May 23, 1979 regulations, the following recommendations are made in an attempt to comply with the 30 day period in which to approve a 208 plan once it is certified to EPA. 1. The approval letter should be typed and ready to be routed for the Regional Administrator's signature the day the certified plan is received by EPA. 2. Concurrences on the "final" approved letter should be restricted to the program office, Division Director, Office of Legal Counsel, and Regional Administrator's Office. All other concurrences should be obtained on the "draft" approval letter. 3. Once a pi an is being considered for certification, the program office (Planning and Management Branch) should establish a schedule to prepare the necessary approval letter and other concurrent activities should be given lower priority. 4. The Planning and Management Branch should revise its commitment to review 201 facility plans and place more responsibility for these reviews on 208 agencies that have approved 208 plans. -3- ------- I. Introduction The 208 program is nearing completion of its first phase; that is, developing plans which are certified by the State and approved by EPA. It has been five and a half years since the first 208 agency received its initial grant to develop a water quality management plan. Since its beginning, the 208 program has experienced numerous difficulties which tended to complicate the implementation of the 208 program. This report focuses on those problems associated with certification and approval of 208 plans. II. Background The first 208 plan to be certified and approved within Region VIII was Pikes Peak's plan which was certified on February 10, 1977, and approved on June 10, 1977. At the Regional 208 conference held in Salt Lake City during February, 1977 plan certification and approval was discussed as a major agenda topic. At this meeting, each of the states were encouraged to develop a process to follow when certifying plans. At the time of the February meeting all the states except Colorado had not given much thought to what is required before the Governor could certify a plan. Also at the time, EPA was also formulating its requirements for plan approval. The first program guidance memorandum on review and approval of Water Quality Management Plans was issued by Headquarters on August 8, 1977. The Region saw the need for each state to formalize its certification process so in April/May 1977, a letter was sent to each state requesting that such a process be formally established and submitted to EPA for concurrence. 8y December 1978, all the states had complied with this request. In March/April 1979, another letter was sent to the states, this time pointing out EPA's concern that the statutory and regulatory dates for certifying numerous plans had been exceeded. The 1972 FWPCA Amendments contemplated that plans would be certified to EPA within two years after initiating plan development and that EPA would take action on these plans within 120 days after receiving the certified plan. If strict adherence to the Statute had been achieved, the last plan to be approved within Region VIII would have occurred November 14, 1978. It was not until the May 23, 1979 regulations were published that there was any incentive to certify or approve 208 plans. Rather it was not until a plan was approved that other programs (i.e., 201 and NPDES) would be affected by a 208 plan. As of January 1, 1980, out of 28 plans in Region VIII, ten (10) have not been certified by the State and five (5) others have not been approved by EPA. The status of plan approvals and certification compare to the national average is indicated below. PLAN CERTIFICATION AND APPROVAL (As of December 31, 1979) Region VIII Total Plans Nati onal l.y 28 226 Number Certified 18 155 Percent 64 58 Number Approved 13 116 Percent 46 51 -4- ------- This report discusses the status of these plans and identifies some of the problems contributing to their lack of approval. The implications of not having a certified or approved plan are also discussed in terms of its effect on future 208 grant awards to these agencies. No detailed analysis was made in this report regarding the success or failure of the plans or determining the adequacy of planning agencies to continue 208 planning. Another aspect of plan certification and approval discussed in this report is the time required by the States and EPA to take action on 208 plans. Both the States and EPA have taken more time to certify and approve plans than was contemplated in the Statute and its subsequent regulations. This section of the report discusses the problems frequently cited by project officers as to why it has taken so long to approve a 208 plan, and recommendations for correcting these problems are presented. As Table 1 shows, EPA has invested $25.2 million in 208 planning within Region VIII compared to a national investment of $366.5 million. Although this report does not attempt to evaluate the effectiveness of the 203 program in terms of its successes and failures, it does address a significant problem that presently confronts the management of the 208 program within Region VIII as well as nationally. That problem is the current lack of certified and approved 208 plans and the time required to get through the certification and approval process. -5- ------- TABLE I FISCAL YEARS 1974-1980: SUMMARY OF 200 FUNDS (1000's Dollars Unless Noted Otherwise) FY '71 & '75 FY '76 FY ' 77 FY '78 FY '79 FY J00 TOTAL FY 74-01 National Appropriation $163M S53M $14M $69M $30M $37.5M $366.5M Basis of Allocation to Region a 75/25 (Net) 85/15 (Gross) 70/30 (Gross)c Needs Nonpoint Source Needs Regional Allocation 12,939 (7.7%) 2,590 (4.7%) 659 (4.7%) 4,447 (6.44%) 2,009 l,756d 25,200 (6.9%) Oasis of Distribution to States a a b 70/30 (Gross) Needs Nonpo t nt Source Needs Col orado 1,212 (33.6%) 415 (16.5%) 280 (42.5%) 1,427 (32%) 762 (26.4%) 469 (26.7%) 7,565 (31.3%) Montana 2,245 (17.9%) 600 (24.0%) 144 (21.9%) 710 (16%) 403 (13.9%) 302 (17.2%) 4,412 (18.1%) North Dakota 400 (3.2%) 565 (22.6%) 20 (3.0%) 532 (12%) 225 (7.0%) 124 (7.0%) 1,066 (7.5%) South Dakota 750 (6.0%) 466 .6 (10.6%) 27 (4.2%) 57/ (13%) 390 (13.5%) 376 (21,4%) 2,506 (10.7%) Utah 4,097 (32.7%) 197 (7.8%) 140 (22.5%) 757 (17%) 668 (23.1%) 359 (20.4%) 6,226 (25.6%) Wyomi ng 1,235 (9.8%) 347 (13.0%) 39 (5.9%) 401 (9%) 233 (8.0%) 2,255 (9.3%) I nd i ans 35 (1%) 200 (7.2%) 71 (4.0%) 314 (1.2%) 55 (undistr ihi '00 Funds) a. Funds were allocated on a first come first serve basis. b. Funds were distributed based on needs to maintain staff. c. AH but $11 million was distributed based on 70/30 formula. d. Proposed distribution awaiting approval from Headquarters. $51,750 of total has not bcc-n distributed. tJOTC: Totals may not add up due to rounding and do not include State/local contribution for FY '7C> and following years (npprox. $/l.l million)- ------- III. Procedures This report is based on an extensive data gathering effort and numerous interviews with staff in the Planning and Management Branch. The approach followed in this analysis is twofold. First, a chronology was compiled for each 208 project which documented key decisions from the time the plan was drafted until it was approved. These chronologies were prepared based on a complete search of the 208 files and supplemented by information provided directly by each project officer. The chronologies were used to document the length of time between key decision points and to identify where possible delays occurred during the plan certification and approval process. The chronologies can be found in Appendix I and served as a significant data base for completing the analysis under Chapter IV, "Detailed Analysis of the 208 Plan Approval Process." A second part of the analysis involved numerous interviews with EPA Region VIll's 208 staff and the use of a questionnaire on 208 plan approvals. Both the questionnaire, which was completed by the 208 staff, and the interviews provided the basis for the discussion found in Chapter III, "208 Plans State Certification or EPA Approval," as well as Chapter IV. As a result of the data gathering and analytical activities, several recommendations were presented to and discussed with the Planning and Management Branch. The recommendations presented in this report have been endorsed by both the Planning and Management Branch and the Office of Analysis and Evaluation. IV. 208 Plans Lacking State Certification or EPA Approval A. Background: There are fifteen (15) 208 state and areawide plans as of January 1, 1980 which lack either State certification or EPA approval. In addition, there are nine (9) plans for Indian Tribes which have not been approved by EPA. Table 2 lists each of the agencies falling into this category and when each agency received its initial 208 grant. The following discussion focuses on the areawide and statewide plans since they are the nearest to completion. A subsequent report will discuss the Indian 203's in more detail. The May 23, 1979 regulations require EPA to approve the Indian 208 Plans. To date, no Indian Plans have been submitted to EPA for approval. The upcoming report will address what EPA approval of a Indian 208 means legally and what procedures should be followed when approving such a plan. Of the fifteen (15) areawide and statewide plans remaining to be approved, five are in some stage of plan development. These five are the Colorado Statewide; the Mid-Yellowstone Areawide; the Utah Statewide; the Southeast Utah Areawide; and the Wyoming Statewide. All the others have been submitted to the Governors for certification, except for Northwest Colorado, which has been submitted to EPA for approval. ------- TABLE 2 208 PLANS LACKING STATE CERTIFICATION OR EPA APPROVAL Date of State Agency Initial Grant Certification Areawi de/Statewide Colorado Statewide 6/03/76 No NW Colorado COG 6/04/75 Yes Colorado West Area COG 6/06/75 No Montana Statewide 5/28/76 No Mid Yel1owstone 6/04/75 No SECOG, SD 6/06/75 Yes NO Statewide 6/04/76 Yes Lewis & Clark, ND 6/06/75 Yes Utah Statewide 6/04/76 No SE Utah AOG 5/21/75 No Five County, UT 6/04/75 Yes Wyoming Statewide 6/04/76 No Powder River APO 6/06/75 No SW Wyoming WQPA 6/06/75 No Teton, CO 208 6/12/75 No Indi ans Three Affiliates Tribes, ND 9/28/79 N/A Turtle Mountain, ND 9/27/79 N/A Ft. Belknap, MT 1/23/77 N/A Assiniboine, Sioux, MT 4/17/78 N/A Northern Cheyenne, MT 9/28/78 N/A Blackfeet, MT 1/23/77 N/A Utes, Utah 9/16/79 N/A Chippewa Cree, Rocky Boy, MT 1/23/77 N/A Shoshone and Arapahoe, WY 9/28/79 N/A EPA Approval No No No No No No No No No No No No No No No No No No No No No No No No -8- ------- Three Wyoming areawide projects (Powder River, Southwest Wyoming, and Teton Areawides) have been in the certification and approval process longer than any of the other 208 plans. It has been 12 to 15 months since these plans were submitted to the Governor for certification. Several of the 208 planning agencies that were responsible for preparing 208 plans which are still awaiting state certification no longer are in the business of 208 planning or have disbanded. The agencies that fall into this category are Powder River and Southwest Wyoming; and Middle Yellowstone, Montana. In addition to these agencies, the Colorado West Area COG and West Oesert AOG in Utah are scheduled to discontinue their 208 activities within another year. Table 3 presents a complete history of how much and when 208 funds were awarded to the 208 planning agencies lacking EPA approval of their plans. All the grant awards made in June 1979 were done to obligate FY 1979 208 funds prior to the end of June 1979. It is Region VIII's policy not to allow a 208 agency to use the FY 1979 208 dollars until that agency has a certified plan. For the agencies listed in Table 3, Northwest Colorado COG is the only one which has been authorized to be reimbursed for 208 activities using FY 1979 funds. This policy and its implications are discussed further later in this report. -9- ------- TABLE 3 SUMMARY OF 208 GRANT AWARDS MADE TO STATEWIDE AND AREAWIDE PLANNING AGENCIES LACKING A CERTIFIED OR APPROVED PLAN Agency COLORADO Colorado Statewide Grant Award Northwest Colorado Colorado West MONTANA Montana Statewide Mi ddl e-Yellowstone NORTH DAKOTA ND Statewide Date 06-03-76 03-10-77 02-22-78 12-14-78 01-19-79 06-29-79 06-04-75 03-08-78 07-24-78 03-15-79 06-29-79 06-06-75 03-28-78 09-28-78 06-29-79 05-28-76 02-11-77 01-16-79 06-28-79 09-13-79 06-04-75 01-16-79 06 -04-76 02-11-77 12-29-77 12-22-78 06-29-79 Amount $414,600 $20,000 $15,600 $215,500 $326,109 $227,492** $1,219*301 $530,000 $14,644 $81,437 $39,563 $55,153 $720,797 $362,000 $14,200 $60,000 $42,150* $478,350 $600,000 $59,900 $592,871 $200,250** $24,750** $1,477,771 $735,000 $16,125 $751,125 $564,000 $42,000 $20,000 $533,427 $168,750 $1,244,577 Lewis & Clark 06-06-75 $400,000 -10- ------- TABLE 3 (Cont'd) Agency Grant Award Date Amount SOUTH DAKOTA SECOG 06-06-75 $375,000 UTAH Utah Statewide 06-04-76 $189,300 01-19-79 $70,000 02-27-79 $52,400 05-25-79 $71,900 06-29-79 $259,108** $642,708 Southeastern Utah 05-21-75 $380,000 08-22-78 $9,000 05-25-79 $41,998 06-29-79 $75,000* $505,998 Five County 06-04-75 $380,000 11-29-78 '$30,742 03-13-79 $18,258 06-29-79 $29,900* $455,900 WYOMING Powder River 06-06-75 $415,000 01-13-78 $15,250 06-26-78 $2,850 09-24-79 - $9,287 $423,813 Southwestern 06-06-75 $450,000 05-23-78 $5,000 $455,000 Teton Co. 06-12-75 $370,000 03-22-78 $3,330 08-21-78 $1,450 $374,780 Wyoming Statewide 06-04-76 $346,899 11-17-78 $160,800 06-11-79 $236,140 06-29-79 $174,750** $918,589 * Grant award conditioned to require that plan must be certified. ** Statewide 208 agency must have certified all areawide plans plus submitted to EPA statewide plan for approval. -11- ------- B. Unresolved Issues and Problems which are Resulting in Delays to Plan Certification and Approval: The issues and problems surrounding each of the plans lacking EPA approval or state certification are discussed separately below: 1. Colorado Statewide - The statewide plan in Colorado is being prepared in several segments. Separate technical plans are being prepared for each that were not included under designated areawide plans. In total, there will be ten (10) sub-plans comprising the technical portion of the statewide plan. In addition to the technical plans, there is a state framework plan which encompasses all the 208 planning areas, including areawides. All ten (10) of the technical plans have been prepared in draft and the majority have been revised. Public hearings have been held on all ten (10) plans and six (6) of the ten (10) are presently being considered for certification by the Water Quality Control Commission. The state projects that the statewide plan will be completed and certified to EPA in March of 1980. This differs from an earlier projected date of June 1979. Based on a review of the draft technical plans and the statewide framework plan, the 208 project officers do not have any serious problems with the plans and believe they can be conditionally approved. The length of time required to develop and submit a certified statewide plan to EPA is a result of a combination of factors most of which can be attributed to a lack of staff and funds to develop ten (10) separate plans and oversee the development and certification of six (6) areawide plans. Some of the plans are fairly general and lack specificity. However, it is the opinion of the regional 208 staff, that the nature of the problems and the areas covered by these plans do not warrant a lot of detail. As Table 3 shows, $227,492 of FY 197 9 funds are being held awaiting plan certifi cati on. 2. Northwest Colorado COG - This plan has been certified and a final approval letter has been routed to the Regional Administrator for signature. EPA's approval is being held in abeyance pending the resolution of a procedural question about the State's certification of the plan. The State Court has ruled that the plan was certified improperly and not in accordance with the State's Procedures Act. The parties to the suit have requested clarification of the judge's ruling, but clarification has not been provided. If the court's position stands, EPA will not have a certified plan upon which to take action. The Region's position at the present time is to keep the plan and await a final resolution of the procedures issue. There is no good estimate of when this issue will be resolved in that the state is likely to appeal the case if the present ruling is not changed. Another major issue regarding plan certification is the designation of only general purpose governments as management agencies. To date, EPA has accepted the Governor's designation of general purpose governments as management agencies and have supported the State's position on this issue. This issue is being re-evaluated -12- ------- by the Office of Regional Counsel with the purpose of deciding whether or not the Region should continue to support the State. EPA's approval of the plan is likely to trigger some lawsuits on this issue. The extent of local authority in regard to regulating transbasin diversion projects is also an issue. It is the opinion of legal counsel this issue ultimately will be litigated as well. 3. Colorado West Area COG - The plan has been submitted to the State to be certified. The State intends to complete the Statewide plan prior to certifying the Colorado West Area 208 plan. It is the opinion of the State that the West Area Plan will not be implemented since the primary emphasis of the plan was to establish an environmental data baseline rather than to make many recommendations which will be implemented in the future. The Council of Governments intends to work on those 208 matters related to plan approval and certification. The Council will terminate the 208 staff within a year and transfer responsibility for 208 planning to the State. Much of the time during the past two years have been idle or spent revising the 208 document. During that time, two new project directors have been hired and during the periods when the Council was without a project officer, no work was accomplished on revising the 203 plan. The draft had several major deficiencies. For example, the draft plan did not include any recommendations for management agencies. The lack of staff combined with the need to make major revisions to the plan has caused the lengthy delays in getting the plan approved. As Table 3 indicates, $42,150 of FY 1979 funds are being held pending plan certification. 4. Montana Statewide - This plan is complete except for including a section covering the Middle Yellowstone River Basin (see next discussion). The Governor has had a certification letter to sign for at least a month. The Montana Operations Office has prepared a draft approval letter which will be transmitted to :fe Regional Office for signature once the Statewide plan is certified. There are no significant issues with the statewide plan, except for completing the Middle Yellowstone portion of the plan which is discussed below. As Table 3 shows, $225,000 dollars of FY 1979 funds are being held pending certification of the plan. 5. Middle Yellowstone - A draft plan was prepared in May/June of 1978. The 208 staff resigned in August 1978 (due in part to EPA's funding policies and associated job insecurity) and very little happened until recently to revise the plan. The certification letter for the Montana Statewide Plan includes an action to de-designate the Middle Yellowstone 208 planning agency in addition to providing a schedule for when it will be revised and submitted to EPA for approval. The plan is currently being revised under contract and is scheduled to be certifi ed i n June 1980. 6. North Dakota Statewide - At the time this was being written, an approval letter was being circulated for signature by the Regional Administrator. The 208 Plan was generally good and no major deficiencies were cited in the approval letter. -13- ------- 7. Lewis and CI ark - In September 1978, the Lewis and Clark planning effort became part of the Statewide effort and the plan for this area was submitted to EPA in conjunction with the Statewide Plan. EPA is conditionally approving the plan concurrently with the Statewide Plan. While the Lewis and Clark 208 was in business, EPA issued a stop work order due to the problems meeting deadlines, poor quality of work products, and staffing problems. The State provides the Lewis and Clark 1805 Regional Council some pass through funds in order to maintain a minimum support effort in respect to implementing the plan for this area. 8. SECQG, SD - Southeastern Council of Governments in South Dakota became part of the Statewide program in June 1979. The State provides some pass through funds to the Council to conduct a minimum 208 effort in the Sioux Falls area. Of the three plans prepared in South Dakota, the SECOG plan was the weakest. A draft approval letter had been prepared by EPA; and if signed would conditionally approve this plan which is expected prior to the end of January 1980. 9. Utah Statewi de - The plan has been drafted and presently is being revised for two out of three areas (i.e., the Six County and West Desert areas). The third area, Bear River, has been submitted for certification which is expected by the end of January 1980. The other two, the State hopes to certify to EPA by April 15, 1980. The plans have been reviewed by EPA and comments provided to the State and the delegated agency preparing the plan. Six County and West Desert had the most deficiencies in the draft plans that were submitted. A lack of water quality data in the West Desert area prevented an in-depth study of the water quality problems in the area. It is the opinion of EPA that the water quality problems are not significant enough to require a detailed analysis. For this reason, the West Desert area would be a low priority to receive future 208 funds. The Bear River Plan has utilized the assistance of the soil conservation districts to develop a non-site specific plan for non-point sources. The lack of site specific information has precluded the plan from containing recommendations for site specific controls. This lack of data resulted in rejection of their application for a rural clean water project. A major issue with the State's effort in these three areas has been the lack of waste load allocations for point sources. 10. Southeastern Utah - Five out of eight subbasin plans are completed and awaiting state certification. The five plans are a vast improvement over the earlier draft and provide a good basis for building and implementing the 208 plan. Numerous problems, such as inadequate staff, have plagued this 208 planning effort prior to the addition of the new project director in May 1978. The completed plan is expected by the end of February and should be certified to EPA during March or April. No significant issues remain with the five subbasin plans since their revision and EPA expects to conditionally approve all eight subbasin plans once they are certified. -14- ------- 11. Five County AQG - The Five County 208 Plan has been certified and is awaiti ng EPA approval which is due by the end of January 1980. The AOG desires to continue work on a groundwater study. Other areas that still need additional work in the Plan are: population projections, problem assessment, and stream classifications. 12. Wyoming Statewide - A draft 208 Plan has been prepared. The major substantive issues identified in EPA's review will be dealt with in EPA's conditional approval. The State has adopted an approach identical to Colorado's regarding management agency designation. Wyoming will be designating only general purpose governments as 201 management agencies. To date, no opposition has been voiced against the state's proposed designation of management agencies. However, this may become an issue similar in intensity to the management agency issue in Colorado. The Statewide plan will be submitted to the Wyoming Environmental Quality Council on January 20, 1980 for their consideration and subsequently recommended to the governor for certification. However, some problems exist with the level of detail found in the plan. The plan presently lacks technical detail and is process oriented. There is no definitive program of action to correct specific water quality problems. One major recommendation of the plan is to assign responsibility for future 208 planning activities to local/regional units of government. The Wyoming Department of Environmental Quality's 208 staff recently has resigned and members of other programs are being used to fill the void. For the past year, DEQ has not taken a leadership role in getting areawide plans certified. 13. Powder River - In 1975, a planning agency was formed specifically to develop a 208 plan for Northeastern Wyoming. The planning agency disbanded in March 1979 after having completed the task of developing a pi an and submitting it to the Governor for certification. The plan has some technical deficiencies and recommends special districts as 201 management agencies for all unincorporated townships. The latter recommendation is in conflict with the recommendation in the Statewide plan. The State is in the process of correcting some of the deficiencies and will not accept the recommendation that special districts be designated as 201 management agencies. Major issues have not been surfaced or directly discussed with the Governor. The State needs to prepare a certification letter and brief the Governor on the issues. With no local or state 208 staff, no one is taking the lead to expedite certification of the plan. 14. Southwest Wyoming - The planning agency was formed in 1975 for the purpose of developing a 208 plan to be submitted to the Governor for certification. The agency dissolved in August 1978 after completing its assignment. The state's review of the plan identified several technical deficiencies in the plan, some of which the state has corrected since the planning agency disbanded. The state's certification is expected to contain numerous conditions especially in the area of salinity control, water quality standards, and stream classifications. Most of the plan's recommendations in these areas -15- ------- dealt with matters over which the State has jurisdiction and therefore, are being conditioned pending further documentation and/or formal adoption by the appropriate State agency under a separate procedure. The State needs to actively pursue certification of this pi an. 15. Teton County - Of the three areawide plans prepared within Wyoming, Teton County's is the best. Unlike the other two areawides, Teton County is maintaining a minimum staff to follow through on implementation of the plan. This position is being supported entirely with local funds. The Wyoming Department of Environmental Quality has completed a detailed evaluation of the plan and is recommending to the Governor that it be certified with conditions. The certification letter needs to be written and significance of the proposed conditions need to be discussed with the Governor. Numerous recommendations in the plan have been implemented, an example of which is developing a self supporting 208 position. -16- ------- C. Implications for Continued Funding of 208 Agencies Lacking Plan Certification or Approval: The regulations dealing with plan certification and approval changed under the May 23, 1979 regulations. Prior to publication of the May 23, 1979 Federal Register, the regulations did not specify any timeframe for a state to take action on a plan once the plan was submitted for certification. Neither did the preceding regulations provide EPA with any sanctions it could impose on a state if a state did not certify a plan in a timely fashion. The May 23, 1979 regulations provide EPA with some leverage when dealing with the states about certification and also specify that the states must take action on a plan within 120 days of its submittal for certification. The prior regulations allowed EPA 120 days to approve a plan once a certified plan was received by EPA. Under the new regulations, EPA and the State have 120 days for concurrent review and EPA has 30 additional days to take action on the pi an. The May 1979 regulations established a more rigorous set of requirements for plan certification and provided EPA with a set of actions it could take if plans were not certified to EPA within a specified timeframe. Paragraph 35-1523-3(c) of the regulations states: "Where the Regional Administrator determines that the Governor has failed without good cause to meet in a timely manner the certification requirements of paragraph (a), the Regional Administrator shall withhold an appropriate portion of funds otherwise available to the State under this subpart pending compliance with the requirements, and may suspend or terminate current funding in accordance with 30.915 (stop work orders) and 30.920 (terminations) of this chapter." The May 23, 1979 regulations also require the Regional Administrator .to withhold 201 funds (regardless of step) if the applicant requesting 201 funds is not covered by an approved plan. Table 4 shows which 201 grants may be affected by this regulation (about $2.8 million). In addition to the regulations, EPA has issued several policy papers which also provide the Regional Office with specific guidance and requirements to deal with states which are delinquent in certifying plans. The FY 79-80 208 Funding Policy developed by EPA, Region VIII and signed by Alan Merson, April 2, 1979, stated that FY 1979 208 "funds will be obligated to Areawide Agencies only if they have a certified plan" and to a State 208 agency only if it has certified all the areawide plans and submitted to EPA a certified Statewide plan for review. An exception is made for agencies having submitted a plan to the State and the State has not provided good reason for not having certified the Plan to EPA. The August 16, 1979 "Policy and Procedure for FY 80 Section 208 Funds, (Information Memo 79-100) states that no agency will be eligible to receive FY 80 208 funds unless it has an approved 208 plan. This is national policy and is reiterated in more recent policy memos as well. A recent policy memo received December 26, 1979, states that the region must obligate all its FY 1980 funds by May 2, 1980, and that all unobligated '80 funds will revert to Headquarters for re-obligation. The asterisked grant awards found in Table 3 on pages 8 and 9 show what amounts of FY 1979 funds cannot be used agency by agency due to the regional -17- ------- TABLE 4 CONSTRUCTION GRANT APPLICATIONS PENDING WHICH MAY BE AFFECTED BY THE LACK OF 208 PLAN APPROVAL (as of December 31, 1979) State/Community Step Amount Requested Colorado Durango 2 570,000 Granby <_ 10,275 Grand Junction 3 3,146,250 Rifle 2-«3 1,152,045 Salida 2 153,600 Upper Eagle 3 954,750 Total 5,986,920 Montana Chester 2 10,500 Nortn Uakota 19 Step i's 233,585 South Dakota Renner 3 757,500 Utah Castle Valley 1 10,500 Wyomi ng Buffalo 1 483,750 GreybulI 1 23,925 Kaycee 1 18,750 Yoder 2+3 367,900 Total 894 ,i75 TOTAL 6,SS9,005 -18- ------- policy. The total amount of FY 1973 funds unavailable for use by these agencies equals about $1 million. In addition, there is a potential of $711,000 of FY 1980 funds which may be affected Dy these policies ^CO - $291,000; MT - 5285,000; and Utah - $35,000). In addition to the above funding constraints, the May 23, 1979 regulations state: "After fiscal year 1979, no funds under section 208 of the Act will be available to any planning agency which developed a certified and approved plan, uniess a significant portion of the plan is being implemented." The Planning and Management Branch ranked all the 208 agencies based on the project officers' evaluation of the degree to which agencies had implemented tneir 208 plans regardless of their certification and approval status. The agencies were ranked into three groups: 1) those agencies having implemented a large number of items in relationship to all other plans, 2) those agencies having implemented an average number of items in relationship to all other plans and 3) those agencies having implemented the fewest number of items in relationship to all other plans. The results of this ranking are shown in Table 5 and represents another factor that must be considered before awarding FY 1980 grants. In surrmary, failure of a state to certify a 208 plan can result in a loss of, or a aelay in receiving 208 or 201 funds. D. Conclusions 1. Assuming that Region VIII is allocated its request of $1,756,000 of FY 1980 208 funds, there are at least $1.7 million of FY 1979 and 80 funds in jeopardy of being held indefinitely while waiting for the outstanding 208 plans to be certified and approved. 2. The quality of each 208 plan varies from agency to agency and is dependent upon numerous factors. An evaluation of the quality of 208 plans in relationship to these factors may be the subject of a future study but such an evaluation is not within the scope of this report. The major conclusion derived in this study regarding the quality of the outstanding plans is that in the opinion of the responsible project officer, each of these plans can be approved with conditions. The relative quality of each plan is just one factor each project officer considers when determining a planning agency's standing in terms of receiving future 208 funcing. However, a good planning product, when combined with implementation, usually results in a higher priority to receive 208 funds. 3. Prior to the May 23, 1979 regulations and recent policy memos, EPA did not have many options when considering what action to take against a state that was delinquent in certifying plans to EPA. These policies and regulations now make it mandatory for EPA to withhold future 208 funds pending certification and approval of a 208 plan. This is currently a -19- ------- major issue with the Wyoming Department of Environmental Quality which has been negligent in taking the initiative to get areawide 208 plans approved. Little hao happened since April 1979 regarding certification of these plans. 4. The major reasons for delays in certifying or approving 208 plans fall into two categories: 1) problems with staff or 2) major deficiencies in the draft plan submitted to EPA for review. 5. Of the ten (10) uncertified plans, four of tne agencies responsible for preparing these plans have either disbanded, discontinued their role in 203 planning, or intend to terminate their involvement in the 208 program. Several other local agencies that contributed to the development of Statewide plans also are no longer active in 203 planning. -20- ------- TABLE 5 RESULTS OF PLANNING AND MANAGEMENT BRANCH'S RANKING OF 208 AGENCIES' DEGREE OF PLAN IMPLEMENTATION Agencies Well Above Average in terms of Implementation of 208 Plans: Northwest Colorado* Larimer-Weld, CO Pueblo, CO Pikes Peak, Cu Montana Statewide - Lewis and Clark SCD** South Dakota Statewide - DWNR Salt Lake County, UT Weber River, UT Mountainland, UT Teton County, WY** Agencies Near the Norm in terms of Implementation of 208 Plans Colorado Statewide - WQCD, SCD, Districts 9 & 10** DRCOG, CO Montana Statewide - WQB, DNR** Blue Ribbons, MT Flathead, MT 6th District, SD South Dakota Statewide - SCC Utah Statewide - Dept. of Ag., Bear River** Southeastern Utah** Uintah, UT Five County, UT* Agencies Below Average in terms of Implementation of 208 Plan Colorado Statewide - Districts 8 & 13** Colorado West, CO** Middle Yellowstone, MT** Yellowstone Tongue, MT North Dakota Statewide - Health Dept. and Conservation Commission* Lewis and Clark, ND* SECOG, SD* Wyoming Statewide - DEQ, Powder, Southwestern Big Horn** Utah Statewide - uept. of Health, West Desert, 6 County** * Plan certified but not approved. ** Plan not certified -21- ------- E. Recommended Actions General Recommendations: 1. A firm schedule should be developed in cooperation with each state as to when 208 plans will be certified to EPA. Table 6 represents the best available information on when plans will be certified, but these dates should be confirmed with the State. This schedule should provide a basis for formulating future 208 policy within Region VIII. 2. Region VIII snould continue to implement the April 2, 1979 funding policy. EPA should exercise its right to withdraw funds from an agency if the status quo in terms of plan certification continues. 3. Region VIII should implement the FY 1980 funding policies and May 23, 1979 regulations as they affect the award and expenditure of FY 1980 funds. The states should be advised that EPA will not accept any new applications for 201 grants or process existing 201 grants for those applicants not included in the approved 208 Plan. EPA should notify each State and areawide agency that after June 30, 1980, FY 1980 funds that have been awarded to 208 agencies and which are conditioned on receiving 208 Plan approval will be withdrawn. The only exception to withdrawing the the FY 1980 208 funds as of June 30, 1980 is if EPA fails to approve a plan within 30 days after receiving the certification. Implementation of this policy requires that states certify plans to EPA by no later than May 31, 1980. 4. EPA should take no longer than 30 days to approve a certified plan once it is received by the Regional Office. The next chapter recommends several changes in EPA1s approval process which need to be implemented as part of this reconmendation. Specific Recommendation: Wyoming - A letter should be prepared and sent to the Governor of Wyoming which informs him of the certification problems in Wyoming and describes the ramification of not having certified and approved 208 plans. The letter should inform the Governor that the EPA/Wyoming IPA agreement will be terminated in June 1980 and suggest that the remainder of the IPA's time in Wyoming could be used to help resolve this problem. -22- ------- TABLE 6 PROJECTED SCHEDULE FOR PLAN CERTIFICATION Colorado Statewide Colorado West Montana Statewide Middle Yellowstone Utah Statewide SE Utah Wyoming Statewide (including 3 areawide plans) March 1980 March 31, 1980* end of January 1980 early June 1980** April 15, 1980 March 1980** May 1, 1980*** * 120 days from date submitted to state for certification. ** These dates are based on the project officer's best judgement as the State was not conmitted to a firm data. *** Commitment date in 1980 State/EPA agreement. -23- ------- V. Detailed Analysis of the 208 Plan Approval Process A. Background: Through January 1, 1980, the average amount of time EPA spent on plan approval was i67 days per project, or about six months. This is also the average amount of time each state spent on plan certification if Wyoming is excluded. Nine (9) out of the thirteen (13) plans approved by EPA as of January 1, 1980 required more than the 120 days allowed by the November 28, 1975 regulations. This amount of time is especially critical in light of the May 23, 1979 regulations which now allow EPA 30 days to take action on a plan after it is certified. Of the five plans in the approval process as of January 1, 1980, four had already exceeded the 120 day requirement and the other one will have been in the office 30 days as of January 11, 1S80. Table 7 summarizes the time taken by EPA to approve 208 plans. Table 8 compares EPA's experience with the time taken bv the states to certify plans and also the time taken by 208 planning agencies to go from a draft plan to a final p I an. B. Reasons Cited for Delays: The following reasons were the most coimion ones provided by project officers to explain the extra time required to approve a 208 plan. 1. Lack of familiarity with the 208 plan at all organizational levels within the Regional Office once the certified plan was received. Changes in project officers of numerous 208 projects during the time the plan was being certified created delays as the newer project officer needed time to become familiar with the plans. In addition, the eighteen (18) month average time to go from a draft plan to certified plan required the 208 review teams and project officers to refami 1iarize themselves with the Plan. Supervisors and other senior managers required special briefing sessions to become familiar with a plan even after the approval letter was circulated for concurrence. This is evidenced by the fact that for some plans, up to 40 days were required to get concurrences on the approval letter. 2. Plan approvals were given lower priority than other Branch, Division, or EPA activities. Activities which frequently took precedent over plan approvals were 1) processing and awarding 106/208 grants, 2) developing regional 208 funding policies and plans, 3) 201 facility p 1 a.i reviews, 4) State/EPA agreements, 5) water quality 5 year needs assessment, 6) approval of population projections, 7) RCWP activities, and 8) National Urban Runoff Projects (NURP). After Zero Based Budgeting for FY 79 and 80, the Enforcement and Surveillance and Analysis Divisions were cut sharply in terms of the resources they could devote to 208 plan review and which was reflected in a five position cut in the Planning and Management Branch's decision unit. Consequently, 203 plan review and approval were given lower priority in these divisions as we'll as within the Planning and Management ciranch. -24- ------- TABLE 7 APPROVAL TIME Agency Colo. Statewide Pikes Peak Denver Larimer/We Id Pueblo Area NW Colorado Colorado West Montana Statewide Flathead Drainage Mid-Yellowstone Yellowstone/ Tongue Blue Ribbons ND Statewide Lewis & Clark RCD SD Statewide 6th District SECOG Utah Statewide Mountainland Weber River Salt Lake County S.E. Utah Uintah Basin Five County Wyoming Statewide Powder River SW Wyoming Teton Co. Date Certified Plan Recv'd 2/10/77 1/13/78 2/23/79 11/14/78 6/28/79 Date of EPA Approval 6/10/77 8/5/78 5/16/79 1/24/78 In Process 8/17/79 11/5/79 to be de-designated 8/17/79 8/17/79 7/24/79 7/24/79 11/14/78 11/14/78 11/14/78 8/31/78 1/20/78 4/30/79 11/22/78 12/12/79 12/26/79 12/26/79 In Process In Process 8/28/79 10/18/79 In Process 3/23/79 5/H/79 12/11/79 10/02/79 In Process Plan Approval Time 92a 100 b 82 71 186* 80 132 132 160 160 216 c 347 421* 204 172 225 314 20* * Number of days in process as of January 1, 1980 Average Time Per Plan (excludes those in process) = 167 days -25- ------- TABLE 7 (Cont'd) ADJUSTMENTS TO PLAN APPROVAL TIME Footnotes: a. DRCOG 1. EIS preparation time (time from certification date to EIS publication date = 88 days) Minimum estimated increase in processing time to EIS preparation 44 days 2. Comment period (60 days) Estimated increase in processing time due to comment period 60 days 3. Time from end of comment period to notice of final EIS action (56 days) Estimated increase in processing time is accounted 0 days for under b. Note: This time would have been re- quired regardless. Its occurrence was shifted from earlier in the process to later in the process Total Estimated Time Savings 104 days 4. Adjusted Processing Time 204 - 104 = 100 days b. Pikes Peak 1. EIS preparation time (7 days) 2. Comment period (50 days) 3. Estimated potential time savings 50% of 57 days = 28 days 4. Adjusted Processing Time 120 - 28 = 92 days c. South Dakota Statewide 1. Certification received 11/14/78 2. Plan received 2/2/79 3. Adjusted Processing Time 296 - 80 = 216 days -26- ------- TABLE 8 TIME BETWEEN DECISION POINTS Draft Plan Final Plan To To Final Plan Certified Plan Certified Concurrence Plan To Approval Letter Time On Approval Letter COLORADO Colorado Statewide Pikes Peak Denver Larimer/Weld Pueblo NW Colorado Colorado West 3 months 8 months 5 months 11 months 10 months 17 months 6 months 1 month months months months 4 months 6 months 2 months 1 month 3 months 1 day 14 days 15 days 31 days 1.5 months3 MONTANA Montana Statewide F1athead Mi d-Yeli owstone Yellowstone Tongue Blue Ribbons NORTH DAKOTA ND Statewide Lewis & Clark SOUTH DAKOTA SD Statewide 6th District SECOG UTAH Utah Statewide Mountainland Weber River Salt Lake County SE Utah Uintah Five County WYOMING Wyoming Statewide Powder River SW Wyoming Teton County 7.5 months 21 months3 5 months 18 months 2 months 14 months 2 months 14 months 30 months 4 months 15 months 13 months 11 months 12 months 18 months 12 months 1 month 5 months 1.5 months 7 months 11 months S.5 months 14 months 5 months .5 month 1. months 8 months 12 months3 15 months3 12 months3 Average Time/Project 11 months 7 months a. Time in process as of January 1, 1980 2.5 months 4 months 4 months 4.5 months 4.5 months 8.5 months 11 months 8.5 months 5.5 months 6 months 9.5 months 5 months 41 days 41 days 35 days 8 days 25 days 33 days 35 days 3 days 26 days -27- ------- 3. Project officers experienced an increase in workload after June/July 1978, thus reducing the amount of time they could devote to plan approvals. The number of project officers for the 208/106 programs was at a high of eleven people during 1977. This number has been recently reduced to six including the Montana Operations Office. The reduction work force in combination with increased responsibi Iity for each project officer has inevitably led to some delays in plan approvals. The increase in responsibility for each project officer resulted when 106 and 208 statewide project officer duties were added to the existing responsibilities of areawide project officers, a typical workload for project officer is attached as Appendix 3. It identifies the major activities which a project officer was involved in during a year and a half period. Within the last month, two senior staff members have taken other positions within Region VIII. It is anticipated that these vacancies will not be filled with experienced individuals. Time to fill vacancies within the Planning and Management Branch has been a problem in the last two years with some positions being vacant up to six months or longer. In the spring and summer of 1978 both section supervisors left the program to fill other positions within the Regional Office. The change in staff vacancies during recent years combined with the inability to fill vacancies quickly has added to the overall workload problem confronting the Branch. Another project officer is expected to be lost during the next two months, as well. 4. Generally, the consequences of missing mandatory approval dates are slight and slippage did not hinder the operation of other Regional programs. NPQES permits have been issued with or without approved 208 plans. Often, interim outputs sufficed to satisfy agency demands especially in the area of population projections to be used in the preparation of 208 facilities plans. Until recently, the major effect that 208 plans had on the NPDES and 201 programs occurred after plan approval. The exception was the Rural Clean Water Program, which depended upon plan approval before RCWP funds could be used under a RCWP project. In the case of the RCWP, plans have been approved in a timely fashion to allow the expenditure of RCWP funds within Region VIII. Since October 1, 1975, an approved 208 plan has been made a prerequisite to receiving a 201 grant. However, within Region VIII, eleven 201 grants have been awarded to communities which did not have an approved 208 plan (see Table S). This problem is presently being corrected as the Water Division is notifying each State of this requirement and will not award 201 grants to areas lacking an approved 208 plan unless the criteria for an exception are satisfied. Of the eleven projects awarded without an approved 208 plan, all eleven satisfy the criteria and the Office of Awards and Grants Adminstration is checking to make sure the reasons for the exceptions are documented. -28- ------- Table 9 CONSTRUCTION GRANT AWARDS SINCE OCTOBER 1, 1979* Community/State Idaho Springs, CO Pueblo, CO Big Timber, MT Roman, MT Shelby, hT (lob ridge, SD Rapid City, SD Ravinia, SD Spearrish, SD Springdale, LIT Bryon, WY Evanston, WY Guernsey, WY Lusk, WY Manaerson, WY Mills, WY Rancnester, WY Step 3(cont1d) 2+3(cont'd) 2+3 1 2(cont'd) 3 2(cont'd) 2(cont'd) 3(cont'd) Amount 37,500 1,647,000 247,800 418,020 9,075 12,900 331,725 12,375 1,800 581,820 26,385 30,600 25,455 18,300 12,000 117,600 27,750 Date Awarded 11/27/79 10/30/79 11/20/79 11/26/79 11/23/79 11/27/79 11/27/79 11/29/79 11/29/79 11/29/79 208 Plan Apprv'd Prior to Awardb No Yes No Yes No Yes Yes Yes Yes No No No No No No No No Grant increases are not included in this list since they do not constitute a new grant award. All the comnunities receiving grants without being covered by an approved 208 Plan are allowed to do so if the "Regional Auministrator determines in writing that the facility related information was not within the scope of the WQM work program or that the award of the 201 grant is necessary to achieve water quality goals." (35.1533-(b)(1). This determination was not made, in writing, for the above grants. -29- ------- C. Recommendations for Improving the Plan Approval Process Several things can be done to improve EPA1s performance in reducing the approval time for the ten plans yet to be certified. 1. The approval letter should be typed and ready to be routed for signature the day the certified plan is received by EPA. In order to stay within the existing 30 day limitation set forth in the May 23 regulations, the approval letter must be prepared prior to receiving the certification letter. Project officers should be responsible to prepare this letter by working jointly with the state as the plan is being certified. Where a state will not cooperate with EPA, the plan by itself should serve as a basis for preparing the approval letter. If possible, a draft copy of the certification letter should be obtained from the State by the project officer to minimize the need to make last minute changes in EPA's approval of the plan. If this procedure were followed for example, approval letters could have been written for all the Wyoming designated areawide plans by now with or without the cooperation of Wyoming. Approval of statewide plans is a different matter. It is imperative that the project officer keep abreast of the status of plan preparation and certification. It is advisable that a draft approval letter be initiated shortly after reviewing the draft of the Statewide plan and that EPA's review letter of the draft plan be written in the format used for approval letters. 2. Concurrences on the "final" approval letter should be restricted to tn-.? program office, Division Director, Office of Legal Counsel, and RA's Office. All other concurrences should be obtained on the "draft" approval letter following the same process used by the Office of Awards and Grants Administration. The "draft" approval letter should be routed to all program offices, including those offices that the final letter will be routed for concurrence, for the purpose of receiving comments and preliminary concurrence. Once a final approval letter is routed for concurrence, no changes to the letter should be necessary. Clarification of specific points in the letter should be obtained when the "draft" is circulated for review. Only changes suggested during the review of the draft approval should be reflected in the final version and all other comments received after the comment period on the draft closes should be ignored. Those offices that have concurrence only on the draft letter should note appropriate changes on the draft. It is the responsibility of the project officer to incorporate changes into the final and to resolve any differences that may exist between offices. -30- ------- 3. The program office should adopt a schedule for plan approvals which takes priority over all other concurrent activities. Plan approvals are important to the award of 106/201/208 grants, issuing NPDES permits, and awarding RCWP grants. Consequently, priority should be given to approving 208 plans by the Planning and Management Branch. Opportunity should be given to other program offices to provide input to the P & M Branch regarding plan approval. However, the P & M Branch should be under no obligation to consider comments if they are received after the established time frame. The following is a reconmended time frame for completing the several steps of approving a p 1 an: - After a plan is submitted to the state to be certified, solicit a schedule from the state which identifies when the draft and final certification letters will be prepared. - Circulate final plan internally within EPA for final review and receive comments (allow two weeks). - Prepare draft approval letter (allow two weeks). - Circulate the draft approval letter internally within EPA and receive comments and concurrences. A copy of draft approval letter should be sent to State as well (allow two weeks). - Solicit and obtain a copy of draft certification letter from the state when available. - Prepare final approval letter (allow one week). - Keceive certification from the state. - Route approval letter for signature (allow one week). A specific schedule can be developed based on the schedule adopted by the state. For example, for Teton County the scnedule might have been: 2/01/79 - Final plan circulated and review requested. 2/15/79 - Comment period on final plan closed. 3/03/79 - Draft approval letter circulated for comment. 3/17/79 - Comment period on draft approval letter closed. 4/08/79 - Received draft certification letter from state. 4/15/79 - Final approval letter prepared. 5/01/79 - Certification of plan received by EPA. 5/08/79 - Approval letter signed. The supervisor is responsible to work out a schedule with each project officer once a plan is being considered for certification. The supervisor needs to be conscious of this schedule and not make priority time consuming assignments to a project officer during periods when the project officer is assigned to work on approving 208 p1ans. The states may not like EPA preparing its approval letter while the state is developing its certification letter. However, EPA has no cnoice if it is going to comply with the May 23, 1979, regulations and the states must understand that the certification/approval process must be a joint process, or that EPA will be forced to prepare its approval letter without the benefit of state input. -31- ------- 4. Planning and Management Branch needs to revise the commitment to review jQl facility plansT In the past, some 208 project officers have spent as much as 0.4 my of effort working on Step 1 facility plans. Colorado and Utah historically have had the most problems which required input from the Planning and Management Branch to resolve. The implementation of the 205(g) agreements in Montana, South Dakota, and Wyoming, now assign responsibi iity for facility plan review to these states respectively. EPA still retains responsibility to review each facility plan for compliance with NEPA which is the responsibi1ity of the Environmental Evaluation Branch. In addition, EPA conducts a full review of 20 percent of the facility plans. Wnat this means in terms of workload for the P & M Branch is that for example, out of 25 Step l's being reviewed in South Dakota only five would require review by EPA. However, these five will generally be the facility plans with the most problems Consequently, a 80 percent reduction in EPA's workload will not be realized. Colorado, Nortri Dakota, and Utah are committed to assume responsibility for facility plan review and approval in the first quarter of FY 1S81, third or fourth quarter of FY 1980 and the second quarter of FY 1980, respectively. The Planning and Management Plan should entertain the possibility of reviewing only 20 percent of facility plans immediately with these states as well by relying more on the reviews of 208 agencies that have approved 208 plans. Under the regulations agencies that have approved 208 plans also have the responsibi1ity to conduct a review of facilities plans within their jurisdiction to determine if the facility plan conforms to the approved 208 plan. The way this can be accomplished is by executing agreements with each of the active 208 agencies that have approved 208 plans to transfer some of this responsibility from EPA to the 208 agency. For state agencies having 201 facility plan review and approval responsibi1ity under 205(g), such an agreement is not necessary. Where States refuse to use local 208 agencies to review Step 1 plans for conformance with 208 plans, the States need to understand that they have full responsibility for the 201/208 conformance review. -32- ------- APPENDIX I Chronology of Key Events for Plans not yet certified/approved - Chronology of Key Events for Plans which have been approved -33- ------- COLORADO PLANS NUT YET CERTIFIED/APPROVED COLORADO STATEWIDE 208 PLAN 04/07/78 Draft plan received by EPA 07/26/78 EPA comments on draft plan provided to Northwest 02/20/79 Final plan received by EPA 06/25/79 Plan certified by State 06/28/79 Certified plan received by EPA 09/17/79 State letter clarifying certain points of certification letter sent to EPA 09/21/79 EPA approval letter circulated for signature 10/01/79 Concurred on by Water Division Letter being held in Office of Regional Counsel pending result of court case COLORADO WEST 208 PLAN 02/16/77 Preliminary plan received by EPA for comment 05/20/79 EPn conments on preliminary plan sent to COG 05/08/78 Draft 208 plan received by EPA for comment 06/07/79 EPA comments on draft plan sent to COG 10/16/79 Final plan submitted to State for certification 02/13/79 Data by which plan must be certified to EPA (120 days from 10/16/79 assuming this is the date the plan was received by the State) 03/15/79 Date by which EPA must take action on the plan Appendix 1-A -34- ------- MONTANA PLANS NOT YET CERTIFIED/APPROVED MONTANA STATEWIDE 08/16/79 11/27/79 01/31/80 03/03/80 03/03/78 05/15/78 8/78 12/78-4/79 01/31/79 06/01/80 Draft Report printed and distributed for review Final Report completed Anticipated certification date 30 days after certification date (date by which EPa needs to take action) MIDDLE YELLOWSTONE Draft Report printed and distributed for comment InLernal memo transmitted requesting review of executive summary Resignation of 208 staff Series of meetings with State and MYAPU to discuss possibility of resurrecting planning effort at local level Expected date by which contract to revise Middle Yellowstone plan will be signed Plan certified ana submitted to EPA as an addendum to Statewide Plan. -35- ------- SOUTH DAKOTA PLANS NOT YET CERTIFIED/'APPROVED SOUTHEASTERN COG 208 PLAN SECOG 208 PLAN 10/11/77 Preliminary 208 Plan submitted for review 11/29/77 EPa comments provided to SECOG on preliminary 208 plan 12/77 Volume III - Final 208 Plan printed and distributed by SECOG 01/11/78 Ehh internal memo requesting review of final Plan 02/08/78 Internal EPA meeting held to discuss Plan (no formal ccrments were provided to SECOG as a result of the review of the final document) 11/14/78 Certification letter received by EPA. EPA draft approval letter prepared and distributed for comment. Anticipate approval letter by the end of January -36- ------- UTAH PLANS NOT YET CERTIFIED/APPROVED 04/79 04/17/79 05/04/79 06/02/79 08/16/79 12/07/79 06/77 07/77 05/78 01/80 08/77 08/24/77 09/14/77 10/18/77 10/27/77 01/78 02/21/78 02/23/78 02/28/78 04/(3-6)/78 04/79 04/79 06/79 12/12/79 12/79 UTAH STATEWIDE 208 PLAN Draft partial plan received by EPA for review EPA internal memo requesting review of draft plan EPA acknowledged receipt of partial draft plan and requested time frame for submitted EPA comments provided to EPA comments provided to EPA comments provided to when remainder of plan would be the State on Bear River portion the State on West Desert portion the State on 6 County portion submitted to a revision SE UTAH 208 PLAN EPA review of draft 208 documents completed Project Director resigns New Project Director on board and supplemental grants made to update and revise 208 Plan. Five out of eight subbasin plans completed and EPA (these are entirely new documents not just of draft reports). FIVE COUNTY 208 PLAN Initial draft Plan received by EPA for review including summary document EPA internal memo requesting 208 Team to review draft Plan EPA commented on Land Use document EPA corrmented on Facilities document lPA commented on Water Quality Management Phase document Second draft submitted to the State and EPA for review EPA commented on Water Quality document EPA conment letter requesting air quality impacts be included as part of the Plan Headquarters assisted review of draft Plan completed EPA held meeting in St. George to discuss MPS portions of the Plan with the SCS & SCDS, and to provide oral comments on entire Water Quality Management summary document Technical documents and summary document revised and printed in final format State received final documents for review and certification EPA received final documents for review and approval EPA received certification package Approval letter being drafted -- anticipate final approval by Mid-January Appendix 1-A -37- ------- WYOMING PLANS NUT YET CERTIFIED/APPROVED WYOMING STATEWIDE 208 PLAN 11/28/77 12/15/77 03/14/78 01/05/79 02/01/79 10/03/77 10/27/77 11/23/77 12/13/77 09/19/78 10/05/78 02/01/79 02/23/79 Requested review of draft 208 Plan Requested review of draft 208 Plan policy recommendation EPA comment letter sent to Powder River 208 Final plan received by EPA Memo requesting review of final plan transmitted to EPA 208 review team SOUTHWESTERN 208 PLAN Preliminary draft of plan circulated within EPA for review Meeting held within EPA to explain and discuss preliminary draft Meeting held within EPA to discuss proposed comments on preliminary draft. EPA comments on preliminary draft sent to 208 agency EPA internal memo transmitted requesting review of final dr aft Final draft transmitted to Salinity Forum for review EPA internal memo transmitted requestin review of final plan DEQ's recommendations for certification circulated for comment. (Governor is waiting to certify plan pending completion and certification of Statewide Plan. Certification letter has not been prepared.) 12/77 01/23/78 03/29/78 12/78 02/01/79 04/05/79 TETON 208 PLAN Draft plan printed and distributed Memo requesting review of draft plan transmitted to EPA review team EPA comments on draft plan sent to Teton 203 Final plan printed and distributed Memo requesting review of final plan distributed DEQ's recommendation for certification circulated for cormient (Governor is waiting to certify plan pending completion and certification of Statewide Plan. Certification letter has not been prepared.) 208 Appendix 1-A -3S- ------- COLORADO APPROVED PLANS DRCOG 208 PLAN 03/31/77 April 1977 04/29/77 05/17/77 05/18/77 06/08/77 07/15/77 12/20/77 01/03/78 01/10/78 01/13/78 01/24/78 04/11/78 05/05/78 05/15/78 05/26/78 06/10/78 06/19/78 06/23/73 06/28/78 07/07/78 07/19/78 07/24/78 08/05/78 August 1978 letter) position on Options paper prepared discussing the inclusion of the 208 Plan in the Overview EIS Draft Plan received by EPA for comment Notice of Intent to prepare an EIS on the DRCOG 208 Plan issued Action Board briefed on substance of Plan EPA comments sent to DRCOG redraft Plan (21 pg Draft letter addressed to DRCOGoutlining EPA's Plan; circulated within EPA for review Preliminary position on Plan sent to DRCOG EPA received final 208 Plan Options paper concerning plan approval circulated for review State certified 208 Plan EPA received certification letter EPA acknowledged receipt of certification letter and advised State that 208 Plan was covered in the Overview EIS EiS circulated for comment (30 days) EPA advised by State that the State was in the process of revising its certification of the Plan Notice to extend connent period to June 10, 1978 issued State sent EPA a second certification letter End of EIS commend period First draft of approval letter cicrculated within EPA for comnent Action Board meeting to Second draft of approva" Action Board meeting to Third draft of approval EPA EPA final approval letter routed for signature EPA approval letter signed Final Action Document for EIS issued (included copy of 208 approval letter) discuss Plan approval I circulated discuss Plan approval letter circulated for review within LARIMER-WELD 208 PLAN 04/28/78 08/11/78 09/78 02/14/79 02/23/79 03/21/79 05/01/79 05/16/79 Draft Plan received by EPA EPA comments on draft Plan provided to Larimer-Weld Final Plan received by EPA Plan certified by State Certified Plan received by EPA Draft approval letter circulated for review within EPA Final approval letter routed for signature Approval letter signed Appendix 1-B -39- ------- 05/26/76 08/76 08/04/76 02/07/77 02/10/77 02/10/77 03/01/77 03/10/77 03/18/77 03/25/77 05/19/77 06/08/77 06/10/77 08/04/76 07/77 07/21/77 09/77 09/30/77 10/77 12/15/77 02/13/78 08/04/78 08/15/78 10/02/78 11/02/78 11/14/78 12/11/78 12/20/78 01/24/78 COLORADO APPROVED PLANS (CONT'D) PIKES PEAK 208 PLAN Draft plan submitted to State and EPA (Comment "letter never officially sent; typed for signature after receiving final plan; oral comments and a draft of the letter were provided to Pikes Peak) Final Plan submitted to State and EPA Letter from RA to Division Directors directing the staff to respond to earlier erquests for comments on draft Plan State certified Plan to EPA EPA received certified Plan Meeting with Action Board to discuss State's certification and EPA's options EPA acknowledged receipt of certified Plan Action Board Meeting to discuss proposed EIS action EPA issued notice of intent to publish an EIS on the Plan Draft EIS issued End of corrment period on draft EIS End of comment period on final EIS EPA approved Plan Letter from RA to Division Directors directing the staff to respond to earlier requests for comments on draft Plan PUEBLO 208 PLAN Draft of Volumes I and 2 received by EPA EPA comments on Volumes 1 ana 2 sent to Pueblo Draft of Volume 3 received by EPA Pueblo's response to EPA comments on Volumes 1 and 2 Volume 3 circulated and comments received (informally transmitted to Pueblo) State commented on Pueblo's draft Plan State and EPA met with Pueblo to discuss replacement of 208 staff and schedule for completing 208 plan Pueblo responded to State's comnent letter State held public hearing on Plan WQCC adopted the Plan State certified Plan to EPA EPA received certified Plan EPA draft approval letter circulated for comments EPA final approval letter routed for signature EPA approved 208 Plan Appendix 1-B -40- ------- MONTANA APPROVED PLANS BLUE RIBBONS 208 PLAN 2/78 Draft Report printed and distributed for comment 03/27/78 Internal memo transmitted requesting review of draft 01/11/79 Joint State/EPA review letter sent to Blue Ribbons on draft 8/79 Revised plan printed and distributed 08/17/79 Governor's certification received by EPA 11/15/79 Approval letter routed for signature 12/26/79 Approval letter signed FLATHEAD 6/77 Draft report printed and distributed for comment 2/78 Final plan submitted to State and EPA 02/07/78 Internal memo transmitted requesting comment on Final Plan 08/17/79 Certified plan received by EPA 11/05/79 Approval letter signed YELLOWSTONE/TONGUE 208 PLAN 10/77 Rough draft printed and distributed for comment 11/02/77 Internal memo requesting coimients transmitted 12/30/77 Comment letter on draft sent to 208 agency 3/78 Final report submitted 03/27/78 Internal memo requesting comments on final draft 08/17/79 Certified plan received by EPA 11/15/79 Approval letter routed for signature 12/26/79 Approval letter signed -41- ------- NORTH DAKOTA APPROVED PLANS NORTH DAKOTA STATEWIDE 208 PLAN 10/26/78 03/79 08/24/79 12/07/79 12/27/79 Memo requesting review review team (no record State) Final Plan printed and distributed Certification of PI and received by EPA First draft of approval letter typed Second draft of approval letter typed, by mid-January of draft Plan transmitted to 208 of formal comments being sent to the Anticipate approval LEWIS AND CLERK 208 PLAN 08/11/77 08/24/79 12/07/79 12/27/79 EPA internal memo requesting review of draft Plan transmitted to 208 review team (no record of formal cormients being sent to Lewis and Clark) Certification of Plan received by EPA EPA first draft of approval letter typed EPA second draft of approval letter typed. Anticipate approval by mid-January -42- ------- SOUTH DAKOTA APPROVED PLANS SOUTH DAKOTA STATEWIDE 208 PLAN 08/78 09/26/78 10/(4-5)/78 10/06/78 11/14/78 11/20/78 12/28/78 01/17/79 02/02/79 07/24/79 08/28/73 Preliminary draft of 208 Plan printed and distributed EPA received second draft 208 Plan for review Public hearings on Plan held EPA letter sent to State indicating submittal is incomplete and, therefore, EPA cannot do a full review. State's certification letter received by EPA tPA acknowledged receipt of certification letter and rtquested additional copies of the Plan. Noted that Statewide Plan was missing from the package. Letter from Governor amending 11/14/78 certification letter received by EPA (letter affected only Statewide Plan). EPA acknowledged receipt of amendment to certification letter Statewide Plan mailed to EPA. Statewide Plan received by EPA EPA approval letter routed for signature EPA approval letter signed SIXTH DISTRICT 208 PLAN 05/77 04/06/78 04/07/78 05/02/78 05/17/78 11/14/78 09/20/79 10/10/79 10/18/79 Resignation of 208 staff Final 208 Plan submitted to State for certification Kinal 208 Plan received by EPA EPA internal memo requesting review of final 208 Plan EPA comments due on final 208 Plan (files show that no cormients were recieved). State certification of Plan received by EPA Draft approval letter - comments requested within EPA EPA final approval letter routed for signature EPA approval letter signed Appendix 1-8 -43- ------- UTAH APPROVED PLANS MOUNTAINLAND 208 PLANS 06/ 27/77 07/28/77 08/25/77 06/08/78 08/02/78 08/18/78 08/31/78 12/ U/78 02/27/79 03/23/79 urdifz Plan received by EPA uPA review letter sent to Mountain land nnal Plan received by EPA State's initial certification letter received by EPA EPA's rejection of certification due to lack of designated management agencies State's designation of management agencies thus completing certification of Plan EPA received complete certification package Draft approval letter prepared and circulated for review within EPA Final approval letter routed for signature Approval letter signed 06/77 08/77 10/13/77 12/77 02/23/78 11/22/78 12/13/78 12/28/78 03/08/79 04/05/79 04/30/79 06/25/79 09/25/79 09/28/79 UINTAH BASIN 208 PLAN Preliminary draft received by EPA Revised draft received by EPA EPA comments on draft provided to AOG Final 208 Plan received by EPA Headquarters assisted review of 208 Plan through contract completed Certification letter received in RA's office Certification letter received by Program office EPA acknowledged receipt of certification letter (cited April 12, 1979 as date by which EPA must take action). EPA requested U.S. Fish and Wildlife review U.S. Fish and Wildlife review letter recommending that EPA add conditions to its approval of the Plan Internal meeting to discuss F & to letter was held EHA response to F & W letter sent with draft copy of 208 Plan approval letter EPA approval letter routed for signature EPA approval letter signed WEBER RIVER 208 PLAN 09/02/77 09/06/77 12/09/77 11/20/78 12/13/78 03/79 (2nd week) 03/08/79 04/08/79 05/11/79 Final Plan submitted to State for certification Weber River WQPC staff's briefing of EPA personnel regarding contents of Plan EPA comment letter on Plan sent to Weber River 208 Plan certification received by EPA EPA acknowledged receipt of certified Plan (cited 3/20/79 as date by which EPA must act on ?" on) Draft approval letter circulated for review within EPA EPA requested U.S. Fish and Wiidlife review EPA final approval letter routed for signature Approval letter signed Appendix 1-3 -44- ------- UTAH APPROVED PLANS (Cont'd) SALT LAKE COUNTY 208 PLAN 10/03/77 Draft Plan received by EPA for comment 02/10/78 EPA approved designation of Salt Lake County Department of /later Quality and Water Pollution Control as the 208 planning agency to replace the Association of Governments 02/13/78 EPA review letter sent to 208 agency 04/27/78 EPA followup review letter sent to 208 agency 11/14/78 Certification of that part of 208 Plan dealing with the South Valley Regional WWTP 12/01/78 EPA approved portions of 208 Plan dealing with the South Valley Regional WWTP 12/04/78 Final 208 Plan submitted to Governor for certification 12/08/78 Copy of final 208 Plan received by EPA 02/12/79 EPA received certification of Central Valley Regional WWTP portion of 208 Plan 04/30/72 Certification of remainder of the 208 Plan - letter received by EPA 05/18/79 EPA letter requesting clarification of management agency responsibi1ities 05/30/75 Response to EPA's 05/18/79 letter received by EPA 06/25/79 EPA approved portions of Plan dealing with the Central Valley Regional WWTP 11/06/79 EPA final approval letter routed for signature 12/11/79 EPA approval letter signed Appendix 1-3 -45- ------- APPENDIX II -45- ------- 208 QUESTIONNAIRE 208 PI an Approvals 1. How important do you think 208 plan approvals are in terms of: a) setting priority for the expenditure of future funds either among 208 agencies or among 203 program activities? b) affecting the expenditure of 201 (Step 1, 2, or 3) funds? c) affecting the writing of NPDES permits? d) other (please specify)? 2. What sort of priority did you personally give to approved 208 Plans? For example, as a project officer, did you ever refuse to review a faculty plan or attend intra-office meetings because of the need to complete the approval of a 208 Plan? If you are a supervisor, did you ever sit down with a project officer prior to the end of the 120 days to adjust workloads and/or develop a schedule for approving the 208 Plan? 3. What is your perception of the priority given to 208 Plan review and approval during the past year by the following groups? Compared to previous years? a) RA's office b) Other Divisions c) Water Division a) Headquarters -47- ------- 4. For those plans taking longer than 120 days to approve, please identify the three most significant reasons for requiring the additional time. Be specific—project by project if you are a project officer. 5. May 23, 1973 regulations call for a concurrent certification and approval process. How have you implemented or how do you propose to implement these regulations? 6. Do you have any specific suggestions on how to improve the 208 Plan approval process? 7. What do you think is a reasonable amount of time required to approve a 208 Plan once a certified plan is received by EPA, assuming a normal workload? (days/project) -48- ------- APPENDIX III -4S- ------- Typical Workload for a 208 Project Officer Sept 78 - Assume Areawide from Rakers - Assume Statewide from Schroeder - Transition Quarter Grants - 106 - 208 Nov 78 SD SEA Nov 78 FY 79 SD 106 Grant 1/2 Feb-Apr 79 FY 78 208 contracts for Statewide Feb-Mar 79 Lake Herman MIP Feb-Mar 79 RCWP Activities Feb-Mar 79 SD 106 Grant Apr-May SD 208 Needs FY 79 June Take over ND Statewide and Lewis & Clark from Zander June SD FY 79 208 work plans June ND FY 79 208 work plans July SD 79 208 Grant Award July ND 79 208 Grant Award Aug SD Statewide 208 Approval letter--3 weeks work, 2,000 pages to read--draft was never commented on—over 8 retypes, one for major format changes--13 weeks to get out after last written submittal. Aug-Oct SD FY 80 208 Funding Plan Aug-Oct ND FY 80 208 Funding Plan Aug-Oct SD FY 80 SEA Aug-Oct ND FY 80 SEA Oct-Dec ND Construction Grants Issues Oct- Population Disaggregations Oct- Indi an Grants -50- ------- October-December Support OPAIR on P.P. Grants Oct 6th District 208 Plan —3 weeks to do, 500 pages, 5 6 retypes. Draft was never commented on. Oct-Nov FY 80 needs for 208 selection Oct-wov Hunting Season Nov-Uec StCOG 208 Plan--800 pages, 3 weeks to do. Draft wa never commented on—typist backlog. Dec-J an Rapid City NURP work plan Dec-Jan ND 5 year needs assess Dec-Jan SD 5 year needs assess Jan 80 ND FY 79 contracts review Jan 80 - SD FY 79 contracts review - NURP detailed work plan - Big Sioux Aquifer Study - ND FY 7S 208 grants release - SD FY 79 208 grants release Jan-Mar - ND FY 80 208 work plans - SD FY 80 208 work plans Jan - land treatment seminar for consultants - SD population disaggregation review - ND population disaggregation review -51- ------- |