(August 28, 2018) - EPA Regions 1 and 2 have been working outside of the total maximum daily load (TMDL) process for some time to develop numeric nutrient targets based on narrative water quality criteria in Long Island Sound (LIS). In response to concerns NACWA raised in an April letter, the Regional Administrators for EPA Regions 1 and 2, in an August 14  letter to NACWA’s CEO, acknowledged NACWA’s concerns and committed to working with municipalities on this issue moving forward.  This is a critical step, as progress on this issue in the LIS could have beneficial impacts on how EPA and states regulate nutrients nationwide.    

Though not clear from the letter, the Agency seems to have stopped work on the final element of the effort – the development of the actual targets. EPA notes in its letter that the studies it is conducting are “neither regulations nor guidance, and will not impose legally binding requirements on EPA, States, Tribes, or the regulated community,” but are instead “intended as a source of relevant information” for use by water quality managers.

NACWA first engaged on this issue when it learned that states and EPA Region 1 were exploring enforceable permit limits based on these studies. EPA’s assurance that these studies are not a proposed TMDLs or water quality criteria only underscores NACWA’s initial concern – EPA was developing information outside of the normal regulatory process that, while not imposing requirements directly, could be used to develop enforceable permit limits. Any such studies must be subjected to the same types of public comment and input processes that a full TMDL process would involve, and EPA seems to be signaling that it will provide greater access to this information.

Nutrient control efforts in the LIS have been guided by a 2000 TMDL for dissolved oxygen that has led to significant reductions in the nitrogen loadings to the Sound led largely by the clean water community – an accomplishment recognized by EPA in its August 2018 letter and in earlier communication on the issue. The August 2018 letter does note that EPA “has, and will continue to, actively engage the states, the municipal community, and other stakeholders,” but to date NACWA and its members have not had the same level of involvement as other stakeholders.

EPA has also not been holding itself to the same standards for engaging the public as it would in a TMDL context. The letter notes that key deliverables from the studies will be made available in the coming months for a public comment process and that the Agency is “dedicated to ensuring an open and deliberative engagement.”

NACWA will be discussing next steps with its members discharging to LIS in the coming weeks, including a possible meeting with EPA staff from Regions 1 and 2.  Members with any questions can contact Chris Hornback, NACWA’s Deputy Chief Executive Officer.