Guidance For 1994 Section 303(D) Lists / Memorandum From Geoffrey H. Grubbs, Director, Assessment And Watershed Protection Division, Office Of Water, U.S. Environmental Protection Agency

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D C. 20460
NOV 2 6 1993
MEMORANDUM
OFFICE Of
WATER
SUBJECT:
FROM:
TO: Water Management Division Directors
Regional TMDL Coordinators
Regions I - X
This memo discusses minimum requirements for the April, 1994, State lists of waterbodies
requiring TMDLs under section 303(d) of the Clean Water Act (CWA). This memorandum
provides guidance only and builds on previous guidance and reflects the policies and requirements
of section 303(d) and the Water Quality Planning and Management regulation at 40 CFR Part 130.
This guidance does not establish or affect legal rights or obligations. Decisions in any particular
case will be made by applying the CWA and implementing regulations. This guidance is intended
to help States and Region* meet the overriding program goals outlined below. It also addresses
specific issues that arose during development of the 1992 lists.
The 1992 listing process was very successful. States and Regions used existing data in a very
compressed time frame to develop lists of waterbodies requiring TMDLs. States and Regions
worked jointly to assure that all requirements, especially those related to public participation, were
complied with properly. Based on these lists, States started establishing TMDLs targeted for
development during the 1992-1994 biennium.
Development of 1994 section 303(d) lists should build on this success. The section 303(d) list
provides a comprehensive inventory of waterbodies impaired by all sources, including point
sources, nonpoint sources, or a combination of both. This inventory is the basis for targeting
waterbodies for watershed-based solutions, and the TMDL process provides the analytical
framework to develop these solutions. Indeed, the use of TMDLs and the TMDL process is
becoming an increasingly vital part of a growing number of State programs. The development of
TMDLs and the process used to arrive at a TMDL is the technical backbone of the Watershed
Protection Approach. Similarly, as larger numbers of permits are written that incorporate water
quality-based effluent limits, the position of TMDLs as a keystone in the point source control
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Guidance for 1994 Section 303(d) Lists
Geoffrey H. Grubbs, Director
Assessment and Watershed Protection Division
risipfP*"

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program is strengthened. Finally, the applicability of the TMDL process to other than chemical
stressors, such as degraded habitat and the resulting loss of healthy, balanced ecosystems, is
increasingly being realized.
The 1992 listing process was the beginning of a much wider role for TMDLs and the 1995
listing process will continue to improve our ability to integrate solutions to water quality problems
on a watershed basis. The three overriding national TMDL program £oals for 1994 are:
1.	Develop fully approvable section 303(d) waterbody lists;
2.	Integrate the section 303(d) listing process more completely into other Ztate program
activities, especially as it relates to the Watershed Protection Approach and the targering
of high priority watersheds; and
3.	Assure consistent application of national §303(d) requirements, especially with rcgard to
public involvement in the 303(d) list development process.
These goals are "discussed below.
1. REVELQp FULLY APPROVABLE SECTION 303(d) LISTS
,lD5ewelopmentj!rofs fully approvable section 303(d) lists involves a number of considerations
including: a) section 303(d) list development requirements; b) availability of data used to develop
section 303(d) lists; c) relationship of section 303(d) lists to other CWA assessment ar.^ listing
requirements; d) unassessed waterbodies; e) timing and content of section 303(d) submissions; and
f) EPA review and approval of section 303(d) lists.
Question la. What are the requirements for including waterbodies on the section 303(d) list?
Section 303(d) requires that States develop a list of waterbodies that need additional work
beyond existing controls to achieve or maintain water quality standards. The additional work
necessary includes the establishment of TMDLs. The TMDL process provides an analytical
framework to identif; the relative contributions of each source to the impairm— The TMDL
identifies the sources and causes of pollution or stress, e.g., point sources, nonpoint sources, or a
combination of both, and establishes allocations for each source of pollution or stress as needed to
attain water quality standards.
Waterbodies that do not or are not expected to meet water quality standards after implementing
Best Practicable Technology (BPT), Best Available Technology (BAT), secondary treatment, and
New Source Performance Standards (NSPS), as described in sections 301 and 306 of the CWA and
defined under EPA regulatiqns are water quality-limited. Not all water quality-limited
waterbodies, however, must be included on the section 303(d) list. The Water Quality Planning
and Management regulation (40 CFR Part 130) provides that waters need not be included on a
section 303(d) list if other Federal, State, or local requirements have or are expected to result in
the attainment or maintenance of applicable water quality standards.

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Regions may choose to advise States to keep waterbodies on the section 303(d) list, not
withstanding establishment of an approvable TMDL, until water quality standards have been met.
This approach would keep waterbodies on the section 303(d) list for which TMDLs have been
approved but not yet implemented, or approved and implemented, but for which water quality
standards have not yet been attained. Some Regions, on the other hand, may choose to advise
their States to /emovj waterbodies from the section 303(d) list once a TMDL has been approved
and track and manage TMDL activities and the attainment of water quality standards through other
program functions. Under this approach, however, the waterbody should be returned to the section
303(d) list at any time that the approved TMDL and associated controls are found to be inadequate
to lead to attainment of water quality standards, or if the controls fail due to incomplete
implementation. EPA Supports the use of either approach to manage State TMDL activities.
EPA believes that the following general strategy is useful for development of section 303(d) lists.
1. Identify water quality-limited waterbodies, i.e., waterbodies that will not or are not
expected to meet water quality standards after the application of technology-based controls
required b> CWA sections 301(b) and 306.
2. Review water quality-limited waterbodies and eliminate waterbodies from consideration
for listing under section 303(d> for which enforceable Federal, State, or local requirements
will result in the attainment of applicable water quality standards.
3. Remaining waterbodies constitute the list submitted pursuant to section 303(d).
Several issues arose during the development of 1992 section 303(d) lists that require
clarification. A number of States initially failed to list any waterbodies impaired by nonpoint
'sources. Some States incorrectly asserted that since best management practices (BMPs) or Coastal
Zone Act Reauthorization Amendments (CZARA) management measures had not yet been
established or implemented, a determination of whether or not the waterbody was water quality-
limited could not be made, and waterbodies were omitted from the section 303(d) list.
Lisib established uncoi section 303(d) must include all waters for which listing pollution
controls or requirements re inadequate to provide for attainment and maintenance of water quality
standards. Accordingly, an impaired waterbody cannot be excluded from the section 3u3(d) list
on the basis that required controls have not yet been established. However, if BMPs or CZARA
management measures have been established or implemented and water quality standards have been
attained or are expected to be attained in the near future, then the waterbody need not be included
on the section 303(d) list.
Similarly, a question arose concerning the exclusion of impaired waterbodies from the section
303(d) list where TMDLs have not been completed but enforceable activities are reasonably
expected to result in the attainment of applicable water quality standards in tiie near future. If
compliance with water quality standards is to be attained through new effluent limits in permits for
point source discharges, it can be assumed that water quality standards will be attained in the near
future through established permitting mechanisms. Closer scrutiny is justified, however, where
needed load reductions are to be attained through additional nonpoint source controls. In such
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cases, for the purposes of the 1994 listing process, "the near future" should normally be viewed
as prior to the required date for submission of the 1996 section 303(d) list. This should provide
adequate time to complete any planning and implementation of nonpoint source control actions.'
Thus, if planned nonpoint source controls are not expected to lead to attainment of water qualit]
standards by 1996, the water quality-limited waterbody should be included on the 199
section 303(d) list.
Therefore, the implementation of an enforceable control does provide a rationale for not
including a water quality-limited waterbody on the section 303(d) list if the required control is: (1)
enforceable, (2) specific to the pollution/stressor problems, and (3) stringent enough to lead to
attainment of water quality standards. Further, if the required control has not yet been
implemented, a schedule for timely implementation of the control should be provided bv the State.
The difference, of course, is that the waterbody is not included on the list of waterbodies requiring
TMDLs because an alternative method of achieving water quality standards exists.
Finally, a related, question arose with respect to threatened waters. The T'/IDL guidance
clearly states that the identification of threatened waters is an important part of the TMDL process
and that threatened waters may be placed on the 303(d) list. Threatened waters are those waters
that fully support their designated uses StiF fhat may not fully support uses in the future (unless
pollution control action is taken) because of anticipated sources or adverse pollution trends.
Threatened waters may also include high quality waters (e.g., Outstanding Natk- zl Resource
Waters) that may be potentially degraded by unregulated sources or stressors. By placing
threatened waters on the section 303(d) list, States will: (1) be consistent with 40 CFR Part
130.7(c)(l)(ii) which requires th TMDLs be established for all pollutants that prevent or are
expected to prevent water quality standards from be;n'g achieved; (2) be better able to i.iaintain and
protect existing water quality; and (3) meet EPA objectives to support State collection of data on
impacted and threatened waters.
Question lb(i). What data are needed to include a waterbody on the section 303(d) list?
In developing the 1992 submissions States used existing readily available data and information
and best professional judgement to determine which waterbodies should be inclu^d on the section
303(d) list. This general approach should be followed in 1994. States expected to use a
combination of the most re'iable databases, best professional judgement, and the best available
information to develop section 303(d) lists. In addition, in 1994 greater use of predictive water
quality modeling results should be made. EPA expects that this mix of databases, ;vidence, and
best professional judgement will vary from State to State.
There are a number of sources that can be used to help determine whether a particular
waterbody belongs on the section 303(d) list. These include section 305(b) reports, Waterbody
System information, toxics chemical release inventory (TRI) data, CWA section 314 and 319
assessments, USGS streamflow information, STORET data, fish consumption advisory information,
anecdotal information and public reports, and other State and Federal databases. Staces should use
the best available information in making section 303(d) list determinations.

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Question lb(ii). What type of information should be considered in deciding whether to include
a specific waterbody on the section 303(d) list?
Determining how much data and information are adequate to include a waterbodj the section
303(d) list is a deliberative process involving judgement. Appendix C of the 1991 TMDL guidance
provides a list of screening categories that States should use to identify water quality-limited waters.
Examples of the type of data and information that should be used in making this determination are
provided below.
• Evidence of a numeric criterion violation. Example: Ambient monitoring data
demonstrates exceedance of the State's ammonia criteria.
• Beneficial use impairment. Listing a waterbody due to beneficial use impairment requires
information that shows the use is not being maintained and that this failure is due to
degraded water o-iaJity. Example: A waterbody designated as a cold wa:."' fishery has
exhibited a documented decline in fish population. The population decline ii> lied to the
existence of sediment deposits on the stream bottom which inhibit or preclude spawning.
• Evidence of a narrative criterion violation. Example: Biological assessment demonstrates
that a loss of biological integrity has occurred, in violation of a State's biological criterion.
• Technical analyses. Example: Predictive modeling or Rapid Bioassessment Protocol
results that show that criteria will be violated or beneficial uses will not be maintained.
• Impairment demonstrated through other CWA mechanisms. Example: If a waterbody is
included on a section 314 or 319 assessment, or is determined to be impaired under section
305(b), it should be reviewed for possible inclusion on the section 303(d) list.
• Other information sources. Other sources that support listing based on best professional
judgement include information from the public participation process ;nd information
regarding the efficac , of existing control requirements to be implemented in the near
future.
Question l(b)(iii). Are biologiccU data that indicate impairments sufficient to support listing a
water under section 303(d)?
As noted above, biological data can be used to support listing a waterbody on the section
303(d) list. This is consistent with the use of biological assessment in EPA's section 305(b)
guidelines.
Biological assessments can provide compelling evidence of water quality impairment because
they directly measure the aquatic community's response to pollutants or stressors. 3iological
assessments and biological criteria address the cumulative impacts of all stressors, especially habitat
degradation, loss of biological diversity, and nonpoint source pollution. Biological information can
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help provide an ecologically based assessment oi me biaiui ui d. wchciliuuj 
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Appendix C of the 1991 TMDL guidance. EPA expects that the 1994 listing methodologies will
build upon the methods used to develop the 1992 lists.
EPA may request that the State provide additional information before an approval/disapproval
decision is made. Two ways that States may prepare for requests for the information used to list
waterbodies may include: (1) keeping an ongoing file or factsheet on each listed waterbody; or (2)
waiting for a request for additional information, then assembling the information necessary to
respond. While the second option may involve Jess work in the short term, it is likely that a file
of information for a waterbody will be useful and necessary when TMDL development begins.
Question le(iii). What other information would EPA like to receive?
In addition to the 303(d) list, EPA is requesting that with each 303(d) list submission, States
also include a brief description of the status of TMDL activities on waters that were targeted for
development in previous two-year cycles. For example, with the 1994 303(d) list submissions,
EPA should receive status reports on the TMDL activities taking place on the waters that vwre
targeted for TMDL development during the 1992-1994 biennium. Similarly, in 1996 EPA should
receive updates on the TMDL activities taking place on the waters that were targeted for TMDL
development during the 1992-1994 and the 1994-1996 biennium.
Question lf(i). What land of action can EPA take on a 303(d) list?
States should work with EPA early in the development of section 303(d) lists to achieve
complete, fully approvable list subm sions by April ! of even numbered years. EPA can take four
actions on a State's section 303(d) list: (1) approval; (2) disapproval; (3) conditional approval; or
'4) partial approval/partial disapproval.
Approval. If EPA determines that a State list (including pollutant or stressor identification,
priority ranking, and identification of waterbodies targeted for TMDL development during the
next two years) meet all section 303(d) requirements, EPA will notify the State of its appioval
in writing.
Disapproval. If EPA determines that a f^ite list (including pollutant or stressor identification,
priority ranking, and identification of waterbodies targeted for TMDL development uuring the
next two years) substantially fails to meet the requirements of section 303(d) and 40 CFR Part
130, EPA will disapprove the State submission. Following a disapproval, EPA will identify
waters where TMDLs are required, pollutants or stressors causing the impairment, and
establish priorities and identify waters targeted for State TMDL initiation during the next two
years. EPA will complete a proposed list including these elements, and take public comment
on its proposed list.
Conditional approval. If EPA determines 'hat a State list is predominantly acceptable, but
disagrees with minor elements (e.g., pollutants or stressors causing an impairment), EPA may
conditionally approve the list. Conditional approval should be used only for minor deficiencies
in State submissions and should not be used to provide general review comments.
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When a list has been conditionally approved, EPA will provide ir.e rationale and any available
supporting technical information used to justify the suggested re - sions, deletions, or additions
to the State list and allow the State a specified time penod (rvpically 30 days unless a longel
time period is necessary to allow public comment regarding ;he requested changes) to meet thl
conditions that EPA outlines. EPA will review the State response and determine whether the
specified conditions are satisfied within 30 da^s of the Slate response.
Partial approval/partial disapproval. If '"PA determines that parts of a State list are approvable
and other parts of a State list must be disapproved, EPA may either disapprove the entire list
or partially approve/partially disapprove it. fn the event of a partial appro\ il/partiaJ
disapproval, EPA rr.-it then revise the disapproved portion of the list and propose it for public
comment as a supplement to the partiaJly approved State list.
Whatever action EPA takes on a State list, EPA should explain the technical, programmatic,
and administrative reasons for the action.
Question Ii(Li)r~Cu,J waterbodies be taker? off the 303(d) list prior to TMDL development?
Because section 303(d) lists are dynamic, they may change from one two-year listing cycle to
the next. A State may choose to remove a waterbody from its section 303(d) list if that waterbody
is meeting all applicable water qualify standards (including numeric and narrative criteria and
designated uses) or is expected to meet these standards in a reasonable timeframe as the result of
implementation of required pollutant controls. It may also be appropriate to remove a waterbody
from the section 303(d) list if, upon re-examination, the original basis for listing is determined to
be inaccurate. Removal of waterbodies from section 303(d) lists can be done onc<_ every two years,
or as the waterbodies attain water quality standards during the biennium.
2. INTEGRATE THE SECTION 303(d) LISTING PROCESS MORE COMPLETELY INTO
OTHER STATE PROGRAM ACTIVITIES, ESPECIALLY AS IT RELATES TO THE
WATERSHED PROTECTION APPROACH AND THE TARGETS OF HIGH
PRIORITY WATERSHEDS
Question 2a. How does the TMDL process fit in with other CWA water quality program
activities?
The TMDL process is linked to all current State water quality activities. The TMDL process
is the technical backbone of the W. :ershed Protection Approach (WPA), a comprehensive,
integrated strategy for more effectively restoring and protecting aquatic ecosystems and protecting
human health in geographically targeted watersheds. The TMDL process allows water resource
managers and scientists to determine, on a watershed scale, the pollutants o. stressors causing
impairments and the allocations necessary to meet applicable water quality standards. In addition,
the TMDL process provides a mechanism for States to target and prioritize watersheds where action
is needed. Further, if a State adopts a rotating basin planning approach to implement its water
quality programs, then TMDLs become an integral component of the basin schedule.
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The development of section 303(d) lists and the establishment of TMDLs are facilitated by the
collection of accurate chemical, physical, and biologic?' data. Therefore, the TMDL process is
closely linked to State water quality monitoring programs. Most states currently use the waters
listed in the section 305(b) reports as not fully supporting designated uses as a starting point for the
section 303(d) lists.
TMDLs can provide a critical connection between water quality standards and water quality-
based controls, including National Pollutant Discharge Elimination System (NPDES) permits in the
standards to permits process, and BMPs to control nonpoint sources. TMDLs are established based
on the goal of attaining water quality standards, including designated uses, numeric and narrative
criteria, and antidegradation provisions. Where TMDLs are established, NPDES permits are based
on the TMDL and associated wasteload allocations, and nonpoint source controls are> implemented
consistent with the TMDL and associated load allocations. As a result, permits scheduled for
reissuance and State nonpoint source control programs under CWA section 319 provide important
information for consideration when developing 303(d) lists and the subsequent TMDLs.
Question 2b. What is the relationship between the TKiDL process and the requirements of the
Endangered Species Act (ESA)?
Section 7 of the ESA provides broad, general guidance to Federal agencies on how to interact
with the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service
(NMFS) in consultations to determine whether a proposed federal action will affect endangered or
threatened species or designated critical habitat. An "action" as defined by the ESA includes all
activities or programs that are authorized, funded, or carried out, in whole or in part, by Federal
agencies.
Whether or not TMDLs, or steps in the TMDL process, are actions as designated under the
ESA is a question that is as yet unanswered. An interagency task force including EPA, USFWS,
and NMFS is currently developing consultation guidance related to the Clean Water Act. The task
force has suggested that the entire process from developing water quality standards to the issuance
of a NPDES permit may potentially be viewed as one action. If this is the case, TMDLs may or
may not requ're ESA consultation.
In general, the TMDL p.ocess should work to uphold the purpose and intent of the ESA.
Consequently, in developing 303(d) lists, States should try to ascertain whether or not threatened
or endangered species inhabit waterbodies. whether waterbodies have been designated as critical
habitat, and whethef proposed TMDLs are sufficient to meet water quality standards designed to
protect threatened or endangered species. EPA will continue to monitor the interagency task force's
progress in determining what portions of water quality programs may be subject to ESA
consultation requirements.
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3. ASSURE EVEN AND CONSISTENT APPLICATION OF NATIONAL SECTION 303(d)
REQUIREMENTS, ESPECIALLY WITH REGARD TO PUBLIC INVOLVEMENT IN
THE 30J(d) LIST DEVELOPMENT PROCESS
Question 3a. How can Stales and EPA assure consistent application of the national TMDL
program ?
To assure consistency throughout the country in the TMDL process, States and EPA must
follow EPA regulations and should follow national TMDL guidance, including the guidance
outlined in this memorandum. Any questions about guidance should be directed to EPA. Tn
addition, States and EPA should communicate with each other as frequently as possible about issues
related to the TMDL process, including administrative, programmatic, and technical issues.
Finally, States and EPA should strive to be creative in finding solutions to TMDL related issues
and problems (e.g., trading).
Question 3b. How can states and Regions assure consistency in 303(d) lists and yuoritization
and targeting^for waters that flow through more than one State?
EPA has encouraged States to develop and use their own methods to set priorities and target
waterbodies for TMDL development. Waterbodies may therefore be proposed for inclusion on the
section 303(d) list that flow through multiple States. Consequently, in some cases, inconsistent
listings may be proposed. Regions should be aware of such potential inconsistencies and discuss
with the States the possibility of coordinating priority setting and TMDL development efforts.
Regions should, if necessary, address any inconsistencies that occur within their jurisdictions among
States' section 303(d) lists. Regions are also expected to be aware of, account for, and if
necessary, address any inconsistencies between a State of theirs and the State of an adjacent Region.
EPA believes that existing coordination mechanisms are adequate to deal with most potential
inconsistencies, and that at this time, it is impractical and unnecessary to institute a formal "cross-
checking" procedure to minimize Region-to-Region inconsistencies. However, info "rial Regional
communications, especially between geographically adjacent and geographically similar Regions,
should occur on a -egular basis to help alleviate, or account for, inconsist* .cies. EPA
Headquarters will i.clp expedite such communication is several ways: (1) by sch iuling and
facilitating conferences calls among Regions, and (2) by examining the section 303(d) lists
submissions to identify any gross inconsistencies.
Question 3c. How does public participation Jit into the TMDL process?
There was some confusion in 1992 on requirements for States to provide for public
participation in developing §303(d) lists and several Regions had to make section 303(d) list
approval/disapproval decisions conditional on State fulfillment of public participation requirements.
However, for the 1994 submittal and review process, EPA expects that all public narticipation
requirements will be fulfilled prior to submitting the final section 303(d) list to EPA for formal
re\ lew.
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Public participation for section 303(d) lists must be consistent with section 101(e) of the CWA,
which requires EPA and States to provide public participation "in the development, revision, and
enforcement of any regulation, standard, effluent limitation, plan, or program established...under
the Act." EPA regulation^ .cquire States to provice public participation in the development of lists
of impaired waters under section 303(d). Public participation requirements are outlined in 40 CFR
Part 25. In addition, Section 303(d)(2) (40 CFR 130.7(a)) provides that the process for developing
section 303(d) lists and public participation ^e described in the State Continuing Planning Process
under section 303(e).
Public participation is that part of the decision making process through which responsiDie
officials become aware of public attitudes by providing ample opportunity for interested and
affected parties to communicate their views. Public participation includes providing access to the
decision making process, seeking input from and communicating with the public, assimilating public
viewpoints, and preferences, and demonstrating that those viewpoints and preferences have been
considered by the decisis making official.
In the identification of water quality-limited waterbodies for State section 303(d) lists, States
need to involve the public as part of their review of all existing and readily available data and
information. EPA also expects States to include public participation in its determination of high
priority targeted waterbodies that will proceed with TMDL development within two years; following
the listing process. At a minimum, public participation in the TMDL process should entail
notifying the availability of proposed lists in a State Register or equivalent or a State-wide
newspaper with a comment period of not less than 30 days. Public meetings should be held at the
discretion of each State. It ' ay be expedient to cotibine public notice for section 303(d) actions
with public notices for other water program activities.
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