ENV-05-174 Evolving Agency Practices Linking Water Quality Permitting and Sediment Impact Issues - Impacts of 303(d) Listing

Description:

Under section 303(d) of the 1972 Clean Water Act, states are required to develop lists of impaired waters that do not meet water quality standards (WQS) even after point sources of pollution have installed pollution control technology. The law requires that states establish priority rankings for listed water bodies and develop total maximum daily loads (TMDLs) designed to restore water quality. In some cases, however, an impaired water body need not be listed for TMDL development, a point of significance especially where sediment impacts are involved. States can cite impairment of sediment quality as grounds for a 303(d) listing. However, sediment impacts are often from historic point and non-point source loading and are difficult to quantitatively tie to ongoing discharges, or to impairments to water quality (i.e., in the water column). In addition, impacted sediment may be readily amenable to remediation outside of the TMDL framework. This paper discusses some aspects of sediment-impacted water bodies in relation to Section 303(d) of the Clean Water Act and offers insights into how Federal and State regulators are approaching this issue. This is an important liability arena for refiners who have permitted discharges to water bodies. For example, the identification of sediment impacts near outfalls could trigger stricter effluent limits designed to protect sediment quality. The development of such effluent limits is, in and of itself, an area fraught with potential for bad science. Further, the application of inexact science and data interpretation can erroneously tie sediment impacts to ongoing discharges whereas the more appropriate avenue for restoration is the cleanup of historic impacts under the auspices of regulatory programs other than water quality.