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Participants

Tiffany Crawford of USEPA called a conference call for Thursday, August 30,2002, to clarify the outstanding question of land-use in relation to the creation of nutrient criteria. Ms. Crawford arranged for several representatives from EPA to provide guidance and answer questions for members of the committee.

The following summary represents the major points/conclusions:

Rodney Branson of the WV Farm Bureau summarized the purpose of the call, and gave explanation for his concern that land-use need to be considered in the nutrient criteria setting process.

The question at hand was where does land-use fit into the development of nutrient criteria, if at all? Some purport that absent a sterile environment land-use has impact on stream/water—to varying degrees—and standards need to take into account land-use.

George Gibson explained that criteria should not be differentiated according land-use, rather only by designated aquatic uses.

Bob Cantilli followed with an explanation of the Nutrient Criteria Development process.

EPA has sought to put land-use in a geographic context. EPA’s position is not to control natural background levels of nutrients, but to address excessive nutrient levels resulting from human impact. In setting nutrient criteria, HQ has adopted an approach that the best way to develop a nutrient benchmark for large geographical areas of similiar ecology, climate and soils is to identify the highest quality waters within an area. The term reference condition relates to nutrient levels associated with pristine or minimally impaired waters within a particular geographic framework. These could be found in areas of least human disturbance (e.g. parks, refuges, forested areas). Logically, the existing water uses associated with reference areas will be high quality and correlate the CWA uses of fishable and swimmable.

EPA uses a regional approach in developing nutrient criteria. It has come up with nutrient aggregate eco-regions (West Virginia is in 11) to tailor criteria given differences in natural geography (e.g., prairie, mountainous, etc.), geology (e.g., soils), ecology, hydrology, and climate (e.g., arid, wet, etc.) typical of different areas in the country. Currently, criteria are being developed for freshwater in each eco-region. In addition, EPA has developed criteria for level 3 ecoregions, which are subsets of the larger aggregates.

Reference conditions are established for each eco-region (to some extent land-use factors into this process). EPA realizes these geographic scales are large and geographically coarse, and suggests States classify their waters at a smaller scale, thus reduces variability within the population of waters for which criteria are being developed. For instance, streams can be further classified by stream order, lakes, by acreage and depth. Land use, while a factor in the formation of ecoregions, is not a major determinant of ecoregions. Land use tend s to inherently follow the physical and climatological characteristics of a region. E.g. areas with naturally high phosphorus soil and sufficient rainfall historically have become areas of significant agriculture. Mountainous, rocky, naturally nutrient poor areas and xeric areas have not.

Manjali Vlcan and Cara Lalley clarified the difference between criteria and uses.

Criteria are established to protect designated uses.

States designate uses for particular waters (e.g., irrigation, fishing). Uses should be "best uses" in establishing reference conditions. When designated uses are set they must be protective of existing uses; the existing use becomes a "floor."

Margaret Janes and Neil Gillies requested clarification.

A question was raised about the Clean Water Act requirements for uses to which the response was: The Clean Water Act requires protection of fishable/swimmable uses wherever attainable; thus the WQS regulation includes Use Attainability Analysis (UAA) as part of the process.

Once appropriate use is designated, the establishment of criteria is purely scientific.

Ted Armbrecht reiterated the point and asked if everyone, especially the agricultural representatives, understood the place of land-use in the nutrient criteria planning process.

Tom Brand stated his clarity on the issue and his dissatisfaction with the inflexibility of the water quality standards process.

Rodney Branson was still unclear why land-use does not fit into the criteria setting process.

It was mentioned that a UAA might need to be considered prior to the criteria setting process. However, given the cost and time that UAAs required, the EQB representatives were not in favor of such action. Additionally there is no proof that the current designated uses are inappropriate.

Jim Keating proposed an option to the state in establishing uses.

In setting use designations, there is something called "use refinement," which means that a broad aquatic use category may not provide sufficient precision for establishing criteria, so subcategories are established. (See Code of Federal Regulations Part 131 (10), especially © and (d) and (g).

A UAA will be required in refinement if the new use being designated is less protective than the use already designated. The refinement provides a structured scientific framework for subcategorizing the general use categories. Refinement requires that existing use still be achieved.

Joe Hankins questioned the scope of the Nutrient Criteria Committee effort and the issue of reviewing designated uses.

Libby Chatfield responded on behalf of the EQB.

The EQB did not include a review of uses in the charge to the nutrient standard committee. It was stated that if there is interest in exploring a review of uses, the committee should bring that to the EQB.

Evan Hansen clarified that it had not been established by the Nutrient Criteria Committee uses needed to be refined.

Rodney Branson questioned Libby Chatfield’s statement, referring to page 6 of the Grubb’s memo.

There was no initial consensus among participants on the conference call and further discussion on whether to ask for a review of uses was postponed until the Nutrient Criteria Committee meeting on September 6, 2002.

General Conclusion: in regard to the question of land use vis-à-vis criteria setting was summarized at the end of call: land use should not be looked at in setting nutrient criteria. The designated use process is the place where land-use plays some role and a potential refinement of uses is a separate agenda topic.

Question for EPA to follow up with: need explanation of the 75 percentile and 25 percentile references in the Grubb memo. Rodney will email question to Tiffany as a reminder.

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Branson Questions 

Tiffany N. Crawford

Water Protection Division

US EPA Region III

Re; Land Use

Tiffany,

Sorry, I was not able to conclude my thoughts on the Land Use issue before the conference call was over.  In the report you are preparing I would appreciate clarification on a couple issues:

1. Reference was made (in the context of our conference call) to the fact that Land Use considerations were taken into account as it relates to Ecoregions and/or other designations.  Please clarify where Land Use has played a role as it relates to the task of setting standards for nutrients in the overall process?

2. Under the Grub Memo Question 2.  What is a nutrient ecoregion…..  EPA states they used Land Use in development of Ecoregions; they go on to encourage states to subdivide these ecoregions.  Using the example give by EPA subecoregions may very well be considered based on Land Use.  With the theory that Land Use should not play a role in criteria development, how can we justify factoring Land Use in the setting of Subecoregions, Ecoregions , Etc.?

3. The Grub Memo Question 5 referenced two methods of developing nutrient criteria.  The 1^st using the 75^th percentile of referenced waters.  The 2nd using the 25^th percentile of all waters in a given physical classification (e.g., an ecoregion).  Because water samples become part of the equation in the methods referenced Land Use is therefore a factor (25^th percentile more so then the 75^th percentile method).  This method of establishing nutrient criteria clearly demonstrates land use playing a role.  To not allow States through other methods to make the same kind of considerations is to apply a double standard.  If Land Use is a factor in one scenario it has to be a factor in all.  Agree or disagree and why?

Please include these comments in your report with your responses.

Sincerely,

Rodney Branson

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Additional Options in Establishing Nutrient Criteria

September 5, 2002 Teleconference

Tom Brand

Bob Cantilli

Tiffany Crawford

George Gibson

Manjali Vlcan

In reference to the brief conversation on "use refinement" that began during the land use teleconference on 8/29/02, more information was provided on ways uses could be refined.

NOTE: Before attempting to refine uses, the state should first assess if ecoregional criteria can be met with the present designation of uses in all waters. Once the state has refined EPA’s criteria to be more reflective of local conditions, nutrient levels may not be as stringent as initially assumed. If it is determined that a large percentage of waters (e.g. agricultural or non-point source areas) still will not be able to meet this ecoregional based criteria even after all cost effective and reasonable BMPs are in place, then it is the option of the State to consider use refinement ( a 3-step process).

In West Virginia the aquatic uses are fishable/swimmable, with a warm water fishery as the default. To completely remove aquatic use from an area unable to attain those uses would ultimately eliminate all aquatic life that may still exist in those waters.

An example of use refinement:

Within warm and cold water uses, subdivide the use to reflect and protect the different aquatic life in the waterbody, and to protect from nutrient impairment.

This would led to the creation of nutrient criteria to protect a "moderately eutrophic" use. Other criteria such as toxics necessary to protect for aquatic life would still apply.

Reminder: this criteria would be developed based on the level of attainability with every effective and reasonable BMP already in place.

Use refinement is a process the would have to be reviewed and accepted by the state as an amendment to the WQS. If the state chooses to adopt this use category/categories into their standards, it would then also be up to the state on where to apply this use(s). The state does have a process established where anyone may submit evidence to the state and request that the state re-evaluate the designated use for a specific waterbody. The State will be required to do a UAA if they decide to change the use and the criteria for the new use is less protective than the use already in place (131.10 (g))

*A brief presentation will be given by George Gibson and Manjali Vlcan on the ideas presented above.*

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