U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
Catalyst for Improving the Environment
Evaluation Report
EPA Needs to Accelerate
Adoption of Numeric Nutrient
Water Quality Standards
Report No. 09-P-0223
August 26, 2009
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Report Contributors:
Susan Barvenik
Anthony Chirigotis
Dan Engelberg
Linda Fuller
Julie Hamann
Melba Reed
Abbreviations
CWA Clean Water Act
EPA U.S. Environmental Protection Agency
OIG Office of Inspector General
PAMs Program Activity Measures
WATA Water Quality Standards Action Tracking Application
Cover map: Water from approximately 41 percent of the contiguous United States drains
into the Mississippi River Watershed, as shown. The watershed comprises all
or part of 31 States. The hypoxic zone in the Gulf of Mexico is thought to be a
result of excess nutrients from the Mississippi River and seasonal stratification
(layering) of waters in the Gulf. (EPA map).
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U.S. Environmental Protection Agency
Office of Inspector General
At a Glance
09-P-0223
August 26, 2009
Catalyst for Improving the Environment
Why We Did This Review
For the past 11 years, EPA has
been promoting State adoption
of numeric nutrient water
quality standards. In 2007,
EPA recognized that State
progress needs to be
accelerated. We evaluated the
effectiveness of EPA's
strategy to determine what
improvements EPA can make
to accelerate progress.
Background
The 1972 Clean Water Act
established a goal of
maintaining the chemical,
physical, and biological
integrity of the Nation's
waters. Decades later, States
have reported more than
14,000 nutrient-related
impairments. Excess nutrients
create dead zones in waters.
In 1998, EPA issued a strategy
recommending that States
adopt numeric nutrient water
quality standards. Such
standards are cost effective
and help develop improved
wastewater treatment facility
permits and limits of nutrient
loadings.
EPA Needs to Accelerate Adoption of
Numeric Nutrient Water Quality Standards
For further information,
contact our Office of
Congressional, Public Affairs
and Management at
(202)566-2391.
To view the full report,
click on the following link:
www.epa.gov/oig/reports/2009/
20090826-09-P-0223.pdf
What We Found
EPA's 1998 National Strategy and Plan to promote State adoption of nutrient
water quality standards (which better protect aquatic life and human health) has
been ineffective. In 1998, EPA stated that a critical need existed for improved
water quality standards, given the number of waters that were impaired from
nutrients. In the 11 years since EPA issued its strategy, half the States still had no
numeric nutrient standards. States have not been motivated to create these
standards because implementing them is costly and often unpopular with various
constituencies. EPA has not held the States accountable to committed milestones.
The current approach does not assure that States will develop standards that
provide adequate protection for downstream waters. Until recently, EPA has not
used its Clean Water Act authority to promulgate water quality standards for
States.
EPA cannot rely on the States alone to ensure that numeric nutrient standards are
established. EPA should prioritize States/waters significantly impacted by excess
nutrients and determine if it should set the standards. EPA also needs to establish
effective monitoring and measures so that accurate program progress is reported.
This will assist EPA management in program decision-making.
What We Recommend
We recommend that the Assistant Administrator for Water:
• Select significant waters of national value which need numeric nutrient
water quality standards to meet the requirements of the Clean Water Act.
• Set numeric nutrient water quality standards for the waters identified in
the first recommendation to meet the requirements of the Clean Water
Act.
• Establish EPA and State accountability for adopting numeric nutrient
standards for the rest of the Nation's waters.
• Establish metrics to gauge the actual progress made by the States.
We discussed our findings and recommendations with Agency officials. The
Agency agreed with some but not all of the recommendations.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
INSPECTOR GENERAL
August 26, 2009
MEMORANDUM
SUBJECT: EPA Needs to Accelerate Adoption of Numeric Nutrient
Water Quality Standards
Report No. 09-P-0223
FROM: Wade T. Najjum
Assistant Inspector General, Office-6^Program Evaluation
TO: Peter S. Silva
Assistant Administrator, Office of Water
This is our report on the subject evaluation conducted by the Office of Inspector General (OIG)
of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe
the problems the OIG has identified and corrective actions the OIG recommends. This report
represents the opinion of the OIG and does not necessarily represent the final EPA position.
Final determinations on matters in this report will be made by EPA managers in accordance with
established resolution procedures.
The estimated cost of this report - calculated by multiplying the project's staff days by the
applicable daily full cost billing rates in effect at the time - is $505,399.
Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to this
report within 90 calendar days. You should include a corrective actions plan for agreed upon
actions, including milestone dates. We have no objections to the further release of this report to
the public. This report will be available at http://www.epa.gov/oig.
If you or your staff have any questions regarding this report, please contact me at 202-566-0827
or naj jum. wade(o),epa.gov; Dan Engelberg, Director, at 202-566-0830 or engelberg.dan@epa.gov;
or Julie Hamann, Project Manager, at 913-551-7693 or hamann.julie@epa.gov.
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EPA Needs to Accelerate Adoption of 09-P-0223
Numeric Nutrient Water Quality Standards
Table of Contents
Chapters
1 Introduction 1
Purpose 1
Background 1
Noteworthy Achievements 3
Scope and Methodology 4
2 EPA's Strategy to Promote State Adoption
of Numeric Criteria Has Been Ineffective 5
States Have Been Slow to Adopt Numeric Nutrient Standards 5
EPA Needs to Ensure that States Consider the Impact of
Nutrient Pollution on Downstream Waters in Other States 7
EPA Did Not Adequately Monitor and Measure Program Progress
to Support Accountability 8
Conclusion 9
Recommendations 10
Agency Response and OIG Comments 10
Status of Recommendations and Potential Monetary Benefits 12
Appendices
A Details on Scope and Methodology 13
B Top 10 States Contributing Nutrients to the Gulf of Mexico 15
C Agency Response 16
D Distribution 18
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09-P-0223
Chapter 1
Introduction
Purpose
The purpose of our review was to evaluate the effectiveness of EPA's actions to
establish nutrient water quality standards in waters covered by the Clean Water
Act(CWA).
Background
Since at least the 1990s, excess nutrients have been reported as one of the major
sources of impaired waters nationally. Water bodies need nutrients (nitrogen and
phosphorus) to be healthy. But an excess of nutrients can be harmful. Excess
levels of nutrients in waters can produce harmful algal blooms. These blooms
contribute to the creation of hypoxia or "dead zones" in water bodies (where
dissolved oxygen levels are so low that most aquatic life cannot survive). Sources
of excessive nutrients include overuse of fertilizer, sewage treatment plants, septic
systems, animal manure, urban runoff, and atmospheric deposition. Figure 1-1
illustrates how hypoxia forms in the Gulf of Mexico.
Figure 1 -1: Illustration of Hypoxia in the Gulf of Mexico
Fresh wot
Nutrients (N, P,
Sediments, C
organic carb^
Healthy benthic community
(worms, snails, bivalves,
Source: EPA
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09-P-0223
Since at least 1998, EPA has realized that better standards were needed to restore
nutrient-impaired waters and to protect waters from becoming impaired. Water
quality standards are important because they help to protect and restore the water
quality of the Nation's surface waters, consistent with the requirements of the
CWA. The Act, passed in 1972, gives EPA the authority to review and approve
State water quality standards as well as establish new standards necessary to meet
the requirements of the Act.
Water quality standards provide the foundation for accomplishing the goals and
objectives of the CWA. Water quality standards are typically laws adopted by the
State which define the goals for a water body by designating its uses, setting
criteria to protect those uses, and establishing provisions to protect water quality
from pollutants.
According to EPA, narrative standards for nutrients can be useful in protecting
water quality. But numeric standards applicable to all waters are more effective
in achieving nutrient controls. According to EPA, if the Nation is to finish the
job of restoring and protecting water quality in accordance with the CWA, water
quality criteria and standards need to be improved and enhanced.
In 1998, EPA issued National Strategy for the Development of Regional Nutrient
Criteria and Water Quality Criteria and Standards Plan - Priorities for the
Future. In these documents, EPA described the approach it was taking in
working with the States to adopt nutrient criteria as part of the State water quality
standards. EPA stated that given the fact that not all the Nation's waters had
achieved the CWA goal of being "fishable and swimmable" and that significant
water pollution problems still existed, improved water quality standards were
critically needed as well as a set of tools to implement those standards.
In a 2001 Federal Register Notice, EPA published recommended criteria for
nutrient water quality standards under Section 304(a) of the CWA. This section
of the Act requires EPA to develop and publish criteria guidance to assist States in
developing water quality standards that protect designated uses. EPA
recommended that States adopt numeric nutrient water quality standards for
nitrogen, phosphorus, chlorophyll-a; and clarity for lakes/reservoirs,
rivers/streams, wetlands, and estuaries as appropriate. EPA also recommended
that the States should create their plans by the end of 2001 outlining the process
they would take to develop and adopt numeric nutrient standards.
To assist the States in developing nutrient criteria, EPA issued Ambient Water
Quality Criteria Recommendations for most rivers, streams, lakes and reservoirs
in the United States on an ecoregional basis. The criteria represented surface
water conditions that were minimally impacted by human activities and protected
aquatic life and recreational uses. EPA also issued technical guidance by water
body type.
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09-P-0223
EPA expected the States to consider the following elements in developing a
nutrient criterion:
• Historical data and other information (published literature),
• Current reference conditions,
• Models to simulate physical and ecological processes to determine
relationships among nutrients' biological or physical conditions,
• Evaluation of downstream effects, and
• Expert judgment.
EPA recommended the States use the following approaches, in order of
preference:
• Developing nutrient criteria that fully reflect localized conditions,
• Adopting EPA's recommended section 304(a) criteria for nutrients, or
• Using other scientifically defensible methods.
The States would follow a general process of identifying available data and data
gaps; collecting and analyzing the data; developing a proposed standard;
involving public and stakeholder participation; obtaining approval from State
legislatures; and obtaining EPA approval of the new/revised standard.
Due to the limited progress made by States, the Office of Water Assistant
Administrator issued a memorandum in 2007 stating that progress needed to be
accelerated. In 2008, 10 years after EPA issued its national strategy, the hypoxic
zone in the Gulf of Mexico had become the second largest on record and the
second largest dead zone in the world.
Nutrient pollution is widespread and impacts virtually every State. As required
by the Section 303(d) of the CWA, States continue to report over 14,000
impairments for nutrient and nutrient-related pollution on their impaired waters
lists.
Noteworthy Achievements
EPA Headquarters and regions have helped States develop numeric nutrient
criteria in their water quality standards, including:
• publishing technical guidance for developing criteria for lakes and
reservoirs, rivers and streams, estuaries and coastal waters, and wetlands.
EPA also published recommended nutrient criteria for most rivers,
streams, lakes and reservoirs in the United States.
• developing several tools including N-STEPS, a portal that provides Web-
based technical assistance to State and regional scientists and managers
who are developing numeric nutrient criteria, and provides information
regarding nutrient pollution and EPA's activities to the public.
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09-P-0223
determining, in January 2009, that new or revised numeric water quality
standards for nutrients are necessary for Florida to meet CWA
requirements. EPA will work collaboratively with Florida experts to
generate data and analyses.
approving nutrient criteria for estuarine and tidal waters in the
Chesapeake Bay watershed. This is an example of where downstream
criteria have been put in place to drive upstream nutrient control actions.
Scope and Methodology
We conducted this evaluation from October 2008 through June 2009 in
accordance with generally accepted government audit standards, issued by the
Comptroller General of the United States. Those standards require that we plan
and perform the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for our findings
and conclusions based on our audit objectives.
We focused on States contributing nutrients to the Gulf of Mexico because excess
nutrients have resulted in its having one of the largest dead zones in the world.
Additionally, water from approximately 41 percent of the contiguous United
States drains into the Mississippi River Watershed. We conducted interviews
with EPA's Office of Water and Regions 4, 5, and 7 officials, and with State
officials from Florida, Illinois, Iowa, Kansas, Minnesota, and Missouri. We
reviewed information from EPA's Water Quality Standards Action Tracking
Application and EPA's Program Activity Measures. We reviewed State nutrient
criteria development plans and EPA/State mutual agreements to evaluate how
States are progressing in adopting numeric nutrient criteria into water quality
standards. Appendix A contains detailed information on the scope and
methodology of our evaluation.
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09-P-0223
Chapter 2
EPA's Strategy to Promote State Adoption
of Numeric Criteria Has Been Ineffective
We found EPA's nutrient criteria strategy lacked management control and an
adequate system of accountability for either itself or the States. EPA did not seek
State commitment to specific actions or milestones that would provide
accountability. As a result, few States have made progress adopting numeric
nutrient water quality standards. Until recently, EPA had not used its CWA
authority to promulgate standards for waters of national value that have been
significantly impacted by nutrients. EPA has not been effective in coordinating
standard development for waters involving multiple States. While setting
standards does not of itself improve water quality, it generally marks the
beginning of serious efforts to identify impaired waters and make improvements
where needed. Ineffective management control and accountability over the
approach to promoting State adoption of nutrient water quality standards has
resulted in an unnecessary delay to the start of the clean-up process.
States Have Been Slow to Adopt Numeric Nutrient Standards
In the 11 years since EPA issued its strategy, half the States still had no numeric
nutrient standards at the end of 2008.l Most States take a piecemeal approach by
adopting selected parameters for selected waters. States set their own milestones
and priorities. EPA did not work with the States to identify priority waters or
coordinate efforts to focus on waters which needed the most protection. In some
cases, the States developed standards based on availability of data rather than the
severity of the impairment. In its 2008 report, State Adoption of Numeric Nutrient
Standards (1998 - 2008), EPA reported that after 10 years, no State has met
EPA's goal (see Table 1 below).
Table 2-1: State Progress in Adopting Numeric Nutrient Standards, 1998-2008
Numeric Nutrient
Standards by Year
1998
2008
4 Parameters3
4 Water Body"
Types
0
0
1+ Parameters
1+ Entire
Water Body Type
6
7
1+ Parameters
Selected
Waters
7
18
No Numeric
Criteria
37
25
The four parameters are nitrogen, phosphorus, chlorophyll-a, and clarity.
bThe four water body types are lakes/reservoirs, rivers/stream, wetlands, and estuaries.
Source: Developed by OIG based on EPA's report, State Adoption of Numeric Nutrient Standards
(1998-2008).
1 Hawaii is the only State to have adopted all the parameters for all its water bodies and did it prior to 1998.
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EPA's current approach holds little promise that States will achieve the goal of
numeric nutrient standards (including the parameters of nitrogen, phosphorus,
chlorophyll-a, and clarity) for all water bodies. EPA needs to improve its strategy
if it hopes to finish the job of restoring and protecting water quality in accordance
with the CWA as it stated in its 1998 strategy. EPA must identify priority States
and waters so that limited resources can be targeted to these waters. EPA should
identify States or specific waters which are seriously impaired so it can make a
determination under section 303(c)(4)(B) to issue a water quality standard itself.
In January 2009, EPA made such a determination for the State of Florida. Six
months prior to EPA's determination, five environmental groups filed suit against
EPA to compel EPA to use its CWA authority under section 303(c)(4)(B) to
promulgate nutrient water quality standards for Florida. Since 1998, this has been
the only time EPA issued a determination for nutrients. EPA's Ecological and
Health Protection Branch Chief said the Florida determination was State-specific
and no other determinations were planned for the near future. He said it would
make development of maximum pollutant loads to a water body and regulatory
action more efficient and effective.
Cost is a significant obstacle to making headway toward developing water quality
standards for nutrients. It is relatively expensive for States to develop
individualized nutrient criteria that reflect localized conditions. While EPA has
provided much technical assistance to the States, it cannot cover the full cost of
State development of standards. EPA estimates it provided approximately
$11 million to all the States from 1998 to 2008 for numeric nutrient standard
development. State officials at Illinois, Iowa, Minnesota, and Missouri, estimated
it would cost from $1.8 to $8.2 million to develop numeric standards. Florida has
already expended approximately $20 million and has not completed the task.
Alternatively, States could adopt EPA's recommended criteria which would
reduce State development costs. However, many States viewed EPA's criteria as
overly protective. States believe standards developed from EPA's criteria would
be financially costly to implement. Therefore, many States choose to continue
developing their own criteria since time is not a constraint.
Adoption of standards alone will not ensure improved water quality. States need
to ensure that the standard is implemented. According to EPA's Office of Science
and Technology Director, some States believe they do not have strong tools to
implement the standards. Therefore, the States may be reluctant to adopt
standards they cannot implement. Such tools may include regulatory authority
over nonpoint sources or the ability to raise funds to support implementation.
Although developing these tools may often be politically unpopular, it can be
possible.
For many States, agricultural operations are the primary source of excess
nutrients. EPA has only limited regulatory control over agriculture. Some States
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09-P-0223
indicated that they do not have the regulations or resources to influence
agricultural producers to change their practices to improve water quality.
Generally, the selection and adoption of best management practices is at the
discretion of agricultural producers. While States could establish their own
regulations, it could be politically unpopular to do so.
Costs to implement the standards will primarily be borne by individual citizens
and businesses (particularly agribusiness in some States) of the States. For
example, if new/revised standards result in stricter discharge limits for wastewater
treatment plants, these plants may need to increase their user fees to support the
construction of nutrient removal technology, which can run in the millions of
dollars. Management of agricultural runoff and restrictions on businesses would
likely increase costs. As a practical matter, increasing costs for taxpayers and
businesses is generally unpopular. State environmental officials told us that
because of the cost issue they believe they need a high level of scientific support
for any water quality standard before submitting it for approval before their State
legislators.
EPA Needs to Ensure that States Consider the Impact of
Nutrient Pollution on Downstream Waters in Other States
Even if individual State numeric water quality standards were set, there is no
assurance those standards would adequately protect the waters of downstream
States. The States we interviewed said they had not yet considered the impact of
their nutrients on downstream waters. Title 40, Code of Federal Regulations, Part
131.10, provides that States must ensure that their water quality standards provide
for the "attainment and maintenance of the water quality standards of downstream
waters." EPA has the authority to review and approve a State's water quality
standards. We believe waiting for the States to submit their incremental standards
over a number of years is an ineffective way to ensure that downstream waters are
protected.
Many States contribute pollutants to waters in other States. The States we
interviewed said that their primary obligation is developing standards to protect
the waters within their own borders. For example, 31 States are responsible for
the excess nutrients found in the Gulf of Mexico. States such as Illinois, Iowa,
and Missouri are major contributors of nutrients to the Gulf of Mexico. None of
those States had considered their impact on the Gulf in developing their standards
(see Appendix B).
EPA's Chief for Ecological and Health Protection Branch advised us that it would
be best for downstream States to develop numeric nutrient standards first.
Theoretically, this approach could drive the upstream States to ensure that they
develop standards which protect downstream waters. However, EPA has not taken
any action to coordinate and prioritize an effort to take this approach. EPA's
Region 4 Nutrient Coordinator said discussions had occurred within EPA and with
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09-P-0223
the States regarding the impact of upstream State nutrient standards on
downstream waters. But no final resolution had been made as of the end of 2008.
Florida State officials also indicated that they have conversed with Georgia,
Alabama, and EPA but also indicated that no final decisions had been made. The
States we reviewed did not appear to be motivated to improve nutrient water
quality standards for protection within their own borders let alone for States
downstream.
The CWA gives EPA the authority to review and approve State water quality
standards. EPA can disapprove State standards which do not meet EPA
regulations, such as requiring the attainment and maintenance of water quality
standards downstream. Rather than relying on upstream States to set standards
that protect downstream waters, EPA could promulgate standards for waters of
national value, such as the Gulf of Mexico or the Mississippi River. Section
303(c)(4)(B) of the CWA requires that EPA promulgate standards in any case
where the Administrator determines that a revised or new standard is necessary to
meet the requirements of the Act. Once EPA establishes a standard for such a
water body, it would drive standard development for upstream States.
EPA Did Not Adequately Monitor and Measure Program Progress to
Support Accountability
In its 2001 Federal Register Notice, Nutrient Criteria Development: Notice of
Ecoregional Nutrient Criteria, EPA stated that by the end of 2001, the States
should develop plans outlining how the State would develop and adopt numeric
nutrient criteria. EPA further stated it would consider promulgating numeric
nutrient standards for a State if it had not substantially completed adopting
numeric nutrient criteria in accordance with its plan by the end of 2004. Section
303 (c)(4)(B) of the CWA requires that the Administrator shall promulgate
standards in any case where the Administrator determines that a revised or new
standard is necessary to meet the requirements of the Act.
In 2005, about one-third of the States did not have a nutrient criteria development
plan or were not in the administrative phase of adopting standards. EPA did not
promulgate standards for any State at that time. Generally, we found no sanctions
were taken when States did not make progress as planned. For example:
• Region 4 noted missed milestones but simply revised them.
• Region 5, over several years, has expressed concern with the direction of
Illinois' nutrient criteria effort and Illinois' apparent belief that it did not
need numeric nutrient criteria.
• Region 7 acknowledged that States have missed their milestones. No
action was taken.
Regional Nutrient Criteria Coordinators advised us that they discussed with
Headquarters the lack of progress made by certain States. But no formal process
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existed for making a determination that EPA should promulgate standards.
Regional staff also advised us that States knew that EPA would not use its
promulgation powers so the States were not pressured to accelerate progress.
In 2007, EPA conducted an overall assessment of the program's progress. EPA
had not established measures to hold itself accountable for achieving the goals of
its 1998 strategy. Neither did EPA have a national tracking system to monitor
State progress in meeting nutrient criteria development plan milestones. EPA
Headquarters worked with its regional offices and a contractor to develop the
information included in the report, Status of State Adoption of Numeric Nutrient
Standards, December 2008. EPA did not have a national tracking system of State
progress on nutrient criteria development milestones until 2007.
In 2007, EPA also developed a component to its Water Quality Standards Action
Tracking Application (WATA) to monitor State progress in achieving nutrient
criteria development plan milestones. However, this system is not utilized for
tracking, reporting, or decision making because the data have not been validated
(i.e., ensuring entry of correct significant milestone dates and descriptions).
While it is a positive step, too much variation still exists in State reporting. Many
activities from our sample had "open, no specific date available." Also, because
the nutrient criteria development plans vary by State, WATA data are
inconsistent.
As of 2008, 13 States still did not have projected adoption dates in their plans.
Realistic measures are needed to effectively monitor progress towards program
goals, and make programmatic adjustments. Additionally, EPA's Program
Activity Measures (PAMs) for numeric nutrient standards do not provide an
accurate picture of program progress either. PAMs are annual program outputs
that link back to the Agency's Strategic Plan, which measures program outcomes.
EPA's numeric nutrient standard PAMs do not describe the progress being made.
The PAM definition for achieving State adoption of numeric nutrient standards
has been revised annually, making trend analysis difficult. Some of the changes
included types of waters or parameters measured as well as the method for
determining if the States were on track for meeting their milestones. Credit is
given for partial adoption of criteria, which does not indicate what has or still
needs to be accomplished. Regional staff does not consider the measures useful.
Headquarters and regions have not been using measures for tracking performance,
generating reports, or decision making. The absence of meaningful measures in
this program limits the ability of the States, EPA senior leadership, and Congress
to make informed decisions about the status of the program.
Conclusion
EPA's current approach is not working. EPA has relied on the States to develop
standards on their own without any meaningful monitoring or control. EPA did
not establish priorities, enforceable milestones, or adequate measures to assess
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progress. States have made minimal progress in developing standards and have
not yet considered the impact of their waters on downstream waters. EPA has
neither held the States accountable nor used its CWA authorities to promulgate
standards. Consequently, EPA is not assured that the States will set numeric
nutrient standards or that the standards would provide adequate protection under
the CWA for downstream waters.
Given the lack of progress and the challenges involved, EPA needs to develop a
realistic approach to meet the intent of the CWA that includes priorities and
milestones for action. We believe that EPA should prioritize its efforts by
addressing waters of national value (e.g., the Gulf of Mexico) requiring a
coordinated effort with several States. Using its CWA authority, EPA should
determine if numeric nutrient water quality standards are necessary for those
waters and apply its recommended criteria. That would allow EPA a baseline to
work with the upstream states to develop reasonable standards and milestones.
Recommendations
We recommend that the Assistant Administrator for Water:
2-1 Select significant waters of national value which need numeric nutrient
water quality standards to meet the requirements of the CWA.
2-2 Set numeric nutrient water quality standards for the waters identified in
Recommendation 2-1 to meet the requirements of the CWA.
2-3 Establish EPA and State accountability for meeting milestones for
adopting numeric nutrient water quality standards for those waters in the
rest of the Nation that require them. EPA should do this by:
a. Requiring States to develop milestones based on resources
available.
b. Reviewing those milestones and approving them as appropriate.
2-4 Establish metrics to gauge the actual progress made by States in adopting
numeric nutrient water quality standards.
2-5 Ensure that the regions annually validate WATA data.
Agency Response and OIG Comments
EPA disagreed with Recommendations 2-1 and 2-2. In its response to our draft
report EPA argued that "a strategic approach to leverage resources and existing
authorities" for "waters of regional, local and multi-State value" is the best way to
establish effective standards OIG concluded EPA's past and current strategy has
not been effective, and developing another "strategic approach" would not be
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responsive to the recommendations. Historically, EPA has said it would use its
authority to set standards as a motivator and then failed to set standards. We
believe selecting nationally significant waters and acting to set standards for
nutrients in them is a minimal first step if EPA is to meet the requirements of the
CWA. Critical national waters such as the Gulf of Mexico and the Mississippi
River require standards that, once set, will affect multiple upstream States. These
States have not yet set nutrient standards for themselves; consequently, it is EPA's
responsibility to act. Those standards set for nationally significant waters will
serve as an impetus for States to set their own standards and develop and
implement load limits and management practices that will achieve them and the
goals of the CWA. These recommendations are unresolved.
The Agency concurred with our third, fourth, and fifth recommendations.
A complete copy of the Agency's response is in Appendix C. All recommendations
will remain open until the Agency has completed the agreed-upon actions.
11
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
POTENTIAL MONETARY
BENEFITS (in SOOOs)
Rec.
No.
2-1
Page
No. Subject
1 0 Select significant waters of national value which
need numeric nutrient water quality standards to
meet the requirements of the CWA.
Status1 Action Official
U Assistant Administrator
for Water
Planned
Completion
Date
Claimed Agreed To
Amount Amount
2-2
2-3
2-4
10 Set numeric nutrient water quality standards for the U
waters identified in Recommendation 2-1 to meet
the requirements of the CWA.
10 Establish EPA and State accountability for meeting
milestones for adopting numeric nutrient water
quality standards for those waters in the rest of the
Nation that require them. EPA should do this by:
a. Requiring States to develop milestones
based on resources available.
b. Reviewing those milestones and approving
them as appropriate.
10 Establish metrics to gauge the actual progress
made by States in adopting numeric nutrient water
quality standards.
2-5 10 Ensure that the regions annually validate WATA
0
Assistant Administrator
for Water
Assistant Administrator
for Water
Assistant Administrator
for Water
Assistant Administrator
for Water
0 = recommendation is open with agreed-to corrective actions pending
C = recommendation is closed with all agreed-to actions completed
U = recommendation is undecided with resolution efforts in progress
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Appendix A
Details on Scope and Methodology
We conducted our review from October 2008 through June 2009. We reviewed EPA activities
from 1998 to 2008 to assist States in adopting numeric nutrient criteria.
We obtained information on the progress of State adoption of numeric nutrient criteria
nationally, focusing our review on selected States contributing nutrients to the Gulf of Mexico
(Florida, Illinois, Iowa, Kansas, and Missouri). The Gulf of Mexico has one of the largest dead
zones in the world. Water from approximately 41 percent of the contiguous United States drains
into the Mississippi River Watershed. We selected States with high nutrient discharge levels as
reported by the U.S. Geological Survey. We also considered a State's progress in developing
numeric nutrient standards based on EPA data.
We interviewed officials in EPA's Office of Water, specifically the Offices of Science and
Technology; Wastewater Management; and Wetlands, Oceans, and Watersheds. We also
interviewed officials in the EPA Office of Counsel. We interviewed officials in EPA Regions 4,
5, and 7 where our selected States are located.
To determine how the States planned to adopt numeric nutrient criteria and their progress in
doing so, we interviewed State officials in our selected States. We reviewed nutrient criteria
development plans, EPA mutual agreement documents, and associated nutrient criteria
milestones dates for our selected States.
To gain an understanding of the regulatory requirements, we reviewed the CWA and Federal
Code of Regulations pertaining to water quality standards. To determine how EPA planned to
promote State adoption of numeric nutrient criteria, we reviewed the following EPA strategies
and guidance documents:
• June 1998: National Strategy for the Development of Regional Nutrient Criteria.
• June 1998: Water Quality Criteria and Standards Plan - Priorities for the Future.
• January 9, 2001: Nutrient Criteria Development; Notice of Ecoregional Nutrient
Criteria.
• November 14, 2001: Memorandum from the Office of Science and Technology Director,
Development and Adoption of Nutrient Criteria into Water Quality Standards.
• May 25, 2007: Memorandum from the Office of Water Assistant Administrator, Nutrient
Pollution and Numeric Water Quality Standards.
To determine what management controls EPA had in place to monitor and measure State
progress in adopting numeric nutrient criteria, we evaluated EPA's WATA and PAMs. We
interviewed staff responsible for these systems and applicable guidance documents. We
reviewed 2008 WATA reports for our selected States. We analyzed PAM data from Fiscal Years
2005 to 2009. Since our review was confined to evaluating EPA's methods for monitoring and
measuring progress, we did not assess the accuracy of the data reported in WATA and PAMs.
But we did note and report in Chapter 2 that WATA data have not been validated. We reviewed
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EPA's December 2008 report, State Adoption of Numeric Nutrient Standards, which documents
States' progress in adopting numeric nutrient criteria.
To determine the extent of the hypoxic zone in the Gulf of Mexico and the States' contribution to
this problem, we reviewed the following reports:
• GulfHypoxia Action Plan 2008 for Reducing, Mitigating, and Controlling Hypoxia in the
Northern Gulf of Mexico and Improving Water Quality in the Mississippi River Basin',
Mississippi River/Gulf of Mexico Watershed Nutrient Task Force; 2008; Washington,
DC.
• Differences in Phosphorus and Nitrogen Delivery to the Gulf of Mexico from the
Mississippi River Basin', U.S. Geological Survey; published in. Environmental Science &
Technology, Vol. 42, No. 3, 2008.
• Mississippi River Quality and the Clean Water Act: Progress, Challenges, and
Opportunities', National Academies; October 2007.
• EPA and USDA Should Create New Initiative to Better Monitor Nutrients Across the
Mississippi River Basin and Northern Gulf of Mexico', National Academies; December
2008.
To determine EPA funding of State activities related to developing numeric nutrient criteria, we
requested EPA's Office of Science and Technology to provide us with figures from 1998 to
2008. To determine an approximate cost of the States developing numeric nutrient criteria, we
requested the States to provide cost estimates and describe the approach they were using to
develop the criteria. In obtaining estimates from our selected States, we also requested
information from Minnesota because that State had adopted standards for lakes/reservoirs.
Because we are using this information as background, we did not audit the information provided
to us.
Prior Reports
The OIG has not conducted a prior review of EPA's efforts to promote State adoption of numeric
nutrient water quality standards.
The Government Accountability Office assessed EPA and State efforts to improve water quality
standards in its report, Water Quality: Improved EPA Guidance and Support Can Help States
Develop Standards that Better Target Cleanup Efforts (GAO-03-308, January 2003).
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Appendix B
Top 10 States Contributing Nutrients
to the Gulf of Mexico
Progress in Adopting Numeric Standards
(by percentage of Nitrogen and Phosphorus contributions)
State
Illinois
Iowa
Indiana
Missouri
Arkansas
Kentucky
Tennessee
Ohio
Mississippi
Nebraska
Percentage of
Total Nitrogen
Contribution
16.8
11.3
10.1
9.6
6.9
6.1
5.5
5.4
3.4
3.2
Status of Adopting
Nitrogen Water
Quality Standards
None
None
None
None
None
None
No standard for nitrogen.
Standard for chlorophyll-a
for selected lakes/reservoirs
None
None
None
State
Illinois
Missouri
Iowa
Arkansas
Kentucky
Indiana
Tennessee
Mississippi
Ohio
Oklahoma
Percentage of
Total
Phosphorus
Contribution
12.9
12.1
9.8
9.6
9.0
8.4
5.3
4.4
4.1
3.3
Status of Adopting
Phosphorus Water
Quality Standards
Select waters for
lakes/reservoirs
None
None
None
None
None
No standard for phosphorus.
Standard for chlorophyll-a
for select waters for
lakes/reservoirs
None
None
Select waters for
lakes/reservoirs and for some
response parameters
Sources: U.S. Geological Survey's January 2008 report, Differences
in Phosphorus and Nitrogen Delivery to the Gulf of Mexico from the
Mississippi River; and EPA's December 2008 report, Sfafe Adoption
of Numeric Nutrient Standards.
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Appendix C
Agency Response
July 15, 2009
MEMORANDUM
SUBJECT: Draft Evaluation Report: EPA Needs to Accelerate Adoption of Numeric
Nutrient Water Quality Standards, Project 2008-575.
FROM: Michael H. Shapiro
Acting Assistant Administrator
TO: Dan Engelberg
Director, Water and Enforcement Issues
Thank you for your draft evaluation report of June 18, 2009, EPA Needs to Accelerate
Adoption of Numeric Nutrient Water Quality Standards. In accordance with EPA Manual 2750,
this is our written response to your findings and recommendations.
In general, EPA's Office of Water finds the draft report to be factually accurate. Also,
the Office of Water generally concurs with the findings in the report. However, we would like to
be clear that our view is that numeric nutrient State water quality standards are needed to protect
not only those waters already impaired by nutrient pollution, but also to prevent high quality
waters from future impairment.
With regard to recommendations I and 2, overall we agree with the importance of
addressing priority waters of regional, local and multi-State value. However, rather than
selecting a specific list of significant waters of national value which will entail a substantial
amount of process and, to a large degree, be redundant with the assessment and listing provisions
of CWA sections 303 and 305, we believe a greater benefit will be derived by developing a
strategic approach to leverage resources and existing authorities to get more numeric nutrient
water quality standards in place. This strategic approach would consider waters of national value,
including waters impaired for nutrients and high quality waters of national significance. When
envisioning this approach, we recognize the strategic importance of addressing waters such as
the Gulf of Mexico, the Mississippi River Basin and the Chesapeake Bay. We propose that we
could develop this strategic approach in 2010.
With regard to recommendations 3 and 4, we are limited in terms of the metrics and tools
available to require States to keep on schedule according to their individual mutually agreed
upon plans . However, we agree that there is room for improvement in the use of the tools we
have available (i .e., notification to the States that EPA is aware that they are not on schedule,
more frequent publications of State status reports, revision of internal program clearly and
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metrics to more transparently track and document State progress over time, and utilization of
existing authorities).
Lastly, with regard to recommendation 5, we agree that WAT A data should be validated on an
annual basis. We are presently evaluating the approach of tying the WATA information to the
PAM reporting to provide the necessary incentive for more accurate reporting.
Thank you for providing us with the opportunity to review and comment on this draft evaluation
report. If you have any questions, please contact Dana Thomas at (202) 566-1046.
Attachment
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Appendix D
Distribution
Office of the Administrator
Assistant Administrator, Office of Water
General Counsel
Agency Follow-up Official (the CFO)
Agency Follow-up Coordinator
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Audit Follow-up Coordinator, Office of Water
Acting Inspector General
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