Harpeth River Watershed TMDL Development: Making the most of the stakeholder group

Harpeth River Watershed TMDL Development:Making the most of the stakeholder group HARPETH CONSERVANCY 9/19/2018

Overview • TMDL Basics • Objective of program • Elements of a TMDL • Required by statute • Recommended minimums • EPA and State responsibilities • Status of TMDL program and GAO recommendations • The Harpeth River Watershed Needs a TMDL • Stakeholder-led TMDL Development • Steps of TMDL Development • What distinguishes stakeholder-led TMDLs • Case Studies • Recommendations • Work Plan/Concept Model • Establishing Expectations • Steering Committee • Early and Independent Formation of Technical Advisory Panel • Implementation Plan • Post-Implementation Monitoring

TMDL Basics • Pursuant to CWA Section 303(d), each state must submit a list of impaired and threatened waters for EPA approval every two years, identifying all waters where required pollution controls are not sufficient to attain or maintain applicable water quality standards. • States must prioritize waters on their 303(d) List for the development of Total Maximum Daily Loads (TMDLs). • A TMDL limits the total amount of pollutants a water body can receive from all sources and still maintain the designated beneficial uses and meet applicable water quality standards.

Objective of the TMDL Program • The objective of a TMDL is to determine the loading capacity of an impaired waterbody and to allocate that load among different pollutant sources so that control actions can be take to achieve water quality standards. • A TMDL assigns wasteload allocations (WLAs) to point sources of pollution (e.g. sewage treatment plants) and load allocations (LAs) to nonpoint sources (e.g. agricultural runoff); it also must account for seasonal variation and include a margin of safety to account for any lack of knowledge concerning the relationship between WLAs and LAs and water quality. • The TMDL Program is intended to facilitate the delisting of impaired waters as part of the overarching CWA goal – to improve and maintain the quality of rivers, streams, lakes, and other water bodies in the United States.

Objective of the TMDL Program (cont’d) • The TMDL process is important because it serves as a link in the chain between water quality standards and implementation of control actions designed to attain those standards. • To achieve their objective, TMDLs should clearly identify the links between the waterbody use impairment, the causes of impairment, and the pollutant load reductions needed to meet the applicable water quality standards.

Statutory Elements of a TMDL • Each State shall establish TMDLs for the water quality limited segments identified [on the State 303(d) List], and in accordance with the priority ranking. 40 C.F.R. 130.7(c)(1). • Waters on the 303(d) List require TMDLs when (i) technology-based effluent limitations required by the CWA; (ii) more stringent effluent limitations required by either State or local authority preserved by CWA Section 510, or Federal authority; and (iii) other pollution control requirements (e.g. best management practices) are not stringent enough to implement any water quality standards applicable to such waters • “water quality standards applicable to such waters” = water quality standards established under CWA 303, including numeric criteria, narrative criteria, waterbody uses, and antidegradation requirements • “priority ranking” = established in accordance with the process described in the State’s Continuing Planning Process, taking into account the severity of the pollution and the uses to be made of such waters, and mustidentify waters targeted for TMDL development in the next two years

Statutory Elements of a TMDL (cont’d) • For pollutants other than heat, TMDLs shall be established at levels necessary to attain and maintain the applicable narrative and numerical water quality standards (WQS) with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.40 C.F.R. 130.7(c)(1). • Determinations of TMDLs shall take into account critical conditions for stream flow, loading, and water quality parameters. Id. • TMDLs may be established using a pollutant-by-pollutant or biomonitoring approach. In many cases both techniques may be needed. Site-specific information should be used wherever possible. 40 C.F.R. 130.7(c)(1)(i). • TMDLs shall be established for all pollutants preventing or expected to prevent attainment of water quality standards as identified [on the state’s 303(d) List]. Calculations to establish TMDLs shall be subject to public review as defined in the State CPP. 40 C.F.R. 130.7(c)(1)(ii).

Recommended Minimum Elements of a TMDL The EPA provides a ten-item TMDL Review Checklist of the minimum recommended elements that should be present in a TMDL document: • Identification of Waterbody, Pollutant of Concern, Pollutant Sources and Priority Ranking • Applicable WQS and Numeric Water Quality Target* • Loading Capacity* • Load Allocations (LAs) and Waste Load Allocations (WLAs)* • Margin of Safety* • Consideration of Seasonal Variation* • Reasonable Assurance for LAs/WLAs • Implementation Plan • Monitoring Plan to Track TMDL Effectiveness • Public Participation * Required by 40 CFR Part 130

EPA Responsibilities in the TMDL Program • The EPA has three responsibilities in relation to the TMDL Program: • Establish regulations and guidance for TMDL development and review TMDL documents that states submit (if EPA rejects a state’s TMDL, EPA itself must develop one for the identified water body within 30 days); • Provide grants for water pollution control programs (CWA Section 106) and state nonpoint source management programs (CWA Section 319); and • Provide technical assistance to help states restore water bodies through the TMDL process (e.g. models, monitoring methodologies, databases, etc.)

State Responsibilities in TMDL Program • States are responsible for developing TMDLs for waters they identify on their 303(d) lists as impaired; implementing the WLAs they prescribe for point sources through NPDES permits; and facilitating programs to achieve LAs for nonpoint sources • Development of TMDLs generally consists of • Identifying the pollutant responsible for listing a water body as impaired; • Estimating the water body’s loading capacity for that pollutant; • Estimating pollutant loading in the water body from all sources; • Determining pollutant reductions to meet the loading capacity; • Allocating the allowable pollutant load among point and nonpoint sources to achieve water quality; and • Describing a plan for the actions that should be implemented to reduce pollutants from entering the water body

Status of TMDL Program • The majority of monitored US waterways are impaired by pollution – meaning they are not clean enough for healthy recreation, public drinking water and subsistence fishing. • In December 2013, GAO published a report entitled “Clean Water Act: Changes Needed If Key EPA Program Is to Help Fulfill the Nation’s Water Quality Goals,” which found that virtually all of the TMDLs sampled for the study were missing features “key to attaining water quality standards…” • In GAO’s survey, state officials reported that 83 percent of TMDLs had achieved their targets for point source pollution (eg sewage treatment plants) but only 20 percent had achieved their targets for nonpoint source pollution.

GAO Recommendations • GAO recommended that EPA issue new regulations for TMDL development, adding key features to help ensure: • TMDLs accurately identify and address causes of impairment, • TMDLs can be implemented, and • TMDLs are timely revised if found to be ineffective in helping water bodies attain water quality standards • Specifically, GAO endorsed EPA guidance that urges States to include in their TMDLs (1) implementationplans (lists of specific actions to reduce pollution and schedules for reducing pollutant loads) and (2) post-implementation monitoring plans (monitoring projects and activities and TMDL revision procedures) • GAO also urged Congress to revise the CWA approach to nonpoint source pollution

The Harpeth River Watershed Needs a TMDL • The Harpeth River has been on Tennessee’s 303(d) List for excess “nutrients” since 1996 and it has been listed as impaired by phosphorus since 2004. • Excess nutrients (nitrogen and/or phosphorus) can lead to harmful algal blooms that are toxic to humans, pets, and wildlife; toxic algae can taint drinking water and poison swimmers, and algal blooms can deplete the water of the oxygen needed by fish and other water species. • In 2014, TDEC began conversations with stakeholders about developing a TMDL for the Harpeth River Watershed.

The Harpeth needs a TMDL (cont’d) • [Insert evidence that Harpeth’s main problem is point source pollution]

Stakeholder-led TMDL Development • Typical steps in developing a TMDL: • State sets water quality standards, assesses water body, and determines if water quality is impaired • State develops total maximum daily load (TMDL) for impaired water body, taking public comment on the draft TMDL before submitting a finalized version to EPA • EPA reviews TMDL • EPA rejects or approves TMDL; if rejected, EPA itself develops TMDL within 30 days • State implements TMDL • For point sources of pollution: • State or EPA incorporates limits from TMDLs into discharge permits • State monitors point sources for compliance with permits • For nonpoint sources of pollution: • State uses federal and nonfederal funding to help landowners and other stakeholders take actions prescribed by TMDL • Landowners or other stakeholders take (voluntary) action

Stakeholder-led TMDL Development (cont’d) • While the responsibility for developing TMDLs in Tennessee ultimately rests with the Tennessee Department of Environmental Conservation (TDEC) and the EPA is responsible for reviewing and approving (or rejecting and replacing) any finalized TMDL. • The vast majority of TMDLs only allow for substantive public participation through the notice and comment procedure once the TMDLs are drafted; out of more than 70,000 approved TMDLs in the United States, only a handful were developed by (or in collaboration with) third party stakeholders. • The Harpeth River TMDL offers a rare opportunity, as TDEC and the EPA have engaged a group of stakeholders to collaborate on the development of the TMDL.

Stakeholder-led TMDLs – CASE STUDIES Stakeholder-led TMDL development is exceedingly rare, but not without precedent. Participants in the following stakeholder-led TMDLs were consulted in preparing these recommendations: • Ballona Creek & LA River, California • Calleguas Creek, California • Flathead Lake, Montana • Lower Truckee River, Nevada • North Buffalo Creek, North Carolina • Little Miami River, Ohio Reviewing the development of TMDLs for Flathead Lake in Montana and Calleguas Creek in Calfornia proved particularly helpful to developing recommendations for the Harpeth River TMDL development process.

CASE STUDIES – Flathead Lake TMDL • The 23-member Flathead Basin Commission (FBC) was created in 1983 by Montana Legislature to work with community stakeholders including government agencies, tribal groups, community organizations, and citizens to lead the effort to protect and improve water quality in the Flathead Basin • Flathead Lake is impaired for nutrients (nitrogen and phosphorus). In the late 90s, the Montana Dept of Environmental Quality (DEQ) was promoting third-party TMDL development and sought out interested watershed groups; the FBC was the logical party to take the lead on a Flathead Lake TMDL • Due to the statutory authority and structure of the organization, the FBC was able to incorporate technical review into the TMDL development from the beginning of the process, utilizing many of its own members’ native expertise; stakeholders agreed that the early establishment of a technical advisory panel proved valuable throughout the development process • However, a former FBC member reports that “a lot of time, energy, and angst went into crafting the TMDL, and DEQ is now barely monitoring in the Flathead.” • Because both point and nonpoint sources were considered in the TMDL, stakeholders agree that the TMDL should have included a rigorous monitoring program (in particular to ensure [largely voluntary] LAs were being implemented).

CASE STUDIES – Calleguas Creek TMDL

Recommendations • Work Plan/Concept Model • Establishing Expectations • Steering Committee • Early and Independent Formation of Technical Advisory Panel • Implementation Plan • Post-Implementation Monitoring

Work Plan • There should be a Work Plan that details the steps needed to develop, implement, and monitor a TMDL and clearly establishes what parties are responsible for what actions. • Every person who responded to the question “Is it important to have a detailed work plan?” gave some variation of the answer “yes,” including: • “The absence of a work plan virtually guarantees you’re going to face unnecessary delay and confusion.” • “You need that guiding document. It doesn’t have to be treated like the Gospel, but it gives you the framework to expect – even if you ultimately somewhat deviate from it.” • “I’m not really sure how anybody can be expected to know what they’re supposed to do if it’s not written down at or near the beginning of the process. And it needs to have deadlines or everyone it going to look around in five years and wonder why nothing’s happened.”* *The idea of putting deadlines in to a Work Plan, even if such deadlines are not binding, was largely rejected at the most recent Harpeth TMDL stakeholder meeting • TDEC has offered a timeline of actions taken so far and a fifteen-item list of expected future steps, but a Work Plan needs to include far more detail about future benchmarks and how the stakeholders will participate in the process.

Establishing Expectations • Stakeholders (and potential stakeholders) should frankly discuss the potential length and expense of TMDL development, implementation, and monitoring. • Numerous parties involved in developing previous TMDLs reported the process was lengthy, costly, and in some cases still ongoing. One stakeholder from the Flathead Lake TMDL stated: “A big factor in later tensions among stakeholders was the fact that nobody ever sat down and said, ‘Realistically, this is how long it could take to finalize a TMDL, this is how long it could take to implement it, this is how much we might end up spending, and here’s where we expect to get that money.” • It is important to the success of the TMDL and helpful to the cohesion of the stakeholder group that all parties understand the potential for the process to take a significantly long time and cost a large amount of money and man hours, especially when implementation and post-implementation monitoring are taken into account. • Clarification of expectations can also help identify stakeholders who may want to participate in parts of the TMDL development but not necessarily the entire process, which improves efficiency and maximizes engagement (as stakeholders are only involved to the extent they wish to be, and can make a more informed decision in that regard).

Steering Committee • A Steering Committee should be created to make decisions on behalf of the stakeholders and create panels and committees as needed (and agreed upon). • An internal decision-making structure would help the stakeholder group coordinate efforts and accomplish discrete tasks. • Steering Committee responsibilities could include establishing other committees (such as a scientific advisory panel), clarifying roles and responsibilities, and reaching agreement on clear decision-making methods, rules, and other matters. • Like a Work Plan, a Steering Committee (by way of clear delegation of powers and responsibilities) can help clarify the roles of the regulators who will ultimately review and approve the TMDL.

Scientific Advisory Panel – Early and Independent • A scientific advisory panel should be formed as soon as possible, and should be composed of independent parties selected and approved by the stakeholder group. • TDEC has indicated it intends to select members for a technical advisory panel after drafting the TMDL, which compromises the independence of the panel and leaves the group unable to review the data as it is collected and modelling techniques as they are designed and applied. • If a scientific advisory committee is formed early, it can review and comment on everything from available data that will be used to develop the TMDL, to the approach that will be used to quantify the TMDL pollutant load allocations. • The consensus among those interviewed about the creation and role of scientific advisory panels in developing their own TMDLs was that such panels (1) should be formed as early in the TMDL development process as possible and (2) should be independent and/or established democratically – in other words, the state agency should not be the sole party selecting members for the panel.

Implementation Plan • There should be an implementation plan that at least outlines how and when NPDES permits will be revised to implement wasteload allocations. • EPA studies confirm that effective TMDLs include detailed Implementation Plans that specify actors, as well as specific locations in need of remediation, to target efforts at those responsible for the problem, thus facilitating implementation • NPDES permits are required to include effluent limitations consistent with the assumptions and requirements of any WLA assigned to the discharge in an EPA-approved TMDL. CFR 122.44(d)(1)(vii)(B). • Because the Harpeth River’s nutrient problem stems primarily from point sources, a TMDL Implementation Plan would likely focus on ensuring timely incorporation of the TMDL into the relevant NDPES permits. • Most sources emphasize the value of TMDL implementation plans that include reasonable assurances that nonpoint source pollution reductions will occur, which is a challenge because such reductions are usually voluntary. However, an implementation plan for a TMDL that contains only WLAs could still provide valuable additional information on what point sources contribute to the impairment and how these sources are being controlled, or should be controlled in the future.

Post-Implementation Monitoring Plan • There should be a post-implementation monitoring plan to track TMDL effectiveness • National Research Council report recommends that TMDLs include plans for post-implementation monitoring to ensure that actions taken as a result of a TMDL are effective at helping meet water quality standards. • The plan should include monitoring biological indicators, such as aquatic plants and animals, because such indicators provide a more accurate assessment of water body health with respect to designated uses, such as fishing or swimming, than chemical indicators alone. • The report also recommends that TMDLs follow an adaptive approach, using monitoring data to revise and improve the TMDL over time. • As with the implementation plan, most sources emphasize the value of post-implementation monitoring in the context of ensuring success of LAs, but continued monitoring provides valuable data that can help identify problems with WLAs.

Harpeth River Watershed TMDL Development: Making the most of the stakeholder group