Clean Water Act:

Changes Needed If Key EPA Program Is to Help Fulfill the Nation's Water Quality Goals

GAO-14-80: Published: Dec 5, 2013. Publicly Released: Jan 13, 2014.

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What GAO Found

The Environmental Protection Agency (EPA) and the states each have responsibilities for developing and implementing pollution targets, known as total maximum daily loads (TMDL). EPA oversees states' TMDL efforts by establishing in regulations minimum requirements TMDLs need for approval, providing funding, and furnishing technical assistance. States develop TMDLs and generally take the lead in implementing them by identifying pollutants that impair water quality and taking actions to reduce them.

Of about 50,000 TMDLs developed and approved, nearly 35,000 were approved more than 5 years ago, long enough for GAO to consider them long established. State officials GAO surveyed in its representative sample of 191 TMDLs reported that pollutants had been reduced in many waters, but few impaired water bodies have fully attained water quality standards.

The sample of 25 TMDLs reviewed by water resource experts GAO contacted seldom contained all features key to attaining water quality standards. According to the National Research Council and EPA, these features--some that are beyond the scope of EPA's existing regulations--include identifying pollutioncausing stressors and showing how addressing them would help attain such standards; specifying how and by whom TMDLs will be implemented; and ensuring periodic revisions as needed. The experts found, however, that 17 of 25 long-established TMDLs they reviewed did not show that addressing identified stressors would help attain water quality standards; 12 contained vague or no information on actions that need to be taken, or by whom, for implementation; and 15 did not contain features to help ensure that TMDLs are revised if need be. GAO's review showed that EPA's existing regulations do not explicitly require TMDLs to include these key features, and without such features in TMDLs--or in addition to TMDLs--impaired water bodies are unlikely to attain standards.

In response to GAO's survey, state officials reported that long-established TMDLs generally do not exhibit factors most helpful for attaining water quality standards, particularly for nonpoint source pollution (e.g., farms and storm water runoff). The officials reported that landowner participation and adequate funding--factors they viewed as among the most helpful in implementing TMDLs--were not present in the implementation activities of at least two-thirds of long-established TMDLs, particularly those of nonpoint source TMDLs. Because the Clean Water Act addresses nonpoint source pollution largely through voluntary means, EPA does not have direct authority to compel landowners to take prescribed actions to reduce such pollution. In GAO's survey, state officials knowledgeable about TMDLs reported that 83 percent of TMDLs have achieved their targets for point source pollution (e.g., factories) through permits but that 20 percent achieved their targets for nonpoint source pollution. In 1987, when the act was amended to cover such pollution, some Members of Congress indicated that this provision was a starting point, to be changed if reliance on voluntary approaches did not significantly improve water quality. More than 40 years after Congress passed the Clean Water Act, however, EPA reported that many of the nation's waters are still impaired, and the goals of the act are not being met. Without changes to the act's approach to nonpoint source pollution, the act's goals are likely to remain unfulfilled.

Why GAO Did This Study

The 1972 Clean Water Act aimed to "restore and maintain the chemical, physical, and biological integrity of the nation's waters." Under the act, states must establish water quality standards; for waters that do not meet these standards, states must develop TMDLs, which EPA approves. TMDLs set targeted limits for pollutants but are not self-implementing; EPA and states help reduce pollutants by issuing permits for point sources, whereas they provide voluntary incentives to reduce nonpoint source pollution.

GAO was asked to examine the TMDL program, specifically (1) EPA's and states' responsibilities in developing and implementing TMDLs, (2) what is known about the status of longestablished TMDLs, (3) the extent to which such TMDLs contain features key to attaining water quality standards, and (4) the extent to which TMDLs exhibit factors that facilitate effective implementation. GAO asked water resource experts to review a random sample of 25 long-established TMDLs and surveyed state officials who are responsible for implementing a representative sample of 191 longestablished TMDLs.

What GAO Recommends

GAO recommends that EPA issue new regulations for TMDL development, adding key features. Further, Congress should consider revising the Clean Water Act's approach to addressing nonpoint source pollution. EPA did not comment on the matter for Congress. The agency agreed with the need to add key features to TMDLs but did not agree to issue new regulations. GAO believes new regulations are needed.

For more information, contact J. Alfredo Gómez at (202) 512-3841 or gomezj@gao.gov.

Matter for Congressional Consideration

  1. Status: Closed - Not Implemented

    Comments: There has been no action on this item.

    Matter: To help ensure effective TMDL implementation in water bodies impaired by nonpoint source pollution and to hasten progress toward the Clean Water Act's goals of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters, Congress should consider revising the act's largely voluntary approach to restoring waters impaired by such pollution. Specifically, Congress could consider ways to address factors, such as limited authority, which currently impede attainment of water quality standards, particularly the designated uses of fishing, swimming, and drinking.

Recommendations for Executive Action

  1. Status: Open

    Priority recommendation

    Comments: In February 2018, EPA officials stated that it has taken several actions that change the focus of the TMDL program to focus efforts on implementing TMDLs. First, EPA developed a TMDL Vision document to focus on implementing TMDLs and improving water quality. Second, it has also developed examples of TMDLs that contain reasonable assurance that they will be implemented, which can be used by states to improve their TMDLs. Third, EPA has held regional meetings to discuss different TMDL topics such as monitoring, implementation, and reasonable assurance. EPA officials stated that these actions have changed the focus of the program in the place of regulations. We agree that these actions are helpful and can take the agency and states in the direction of improving the TMDL program. However, the actions do not carry the force of regulations and we believe that the problems of nonpoint source pollution require stronger action such as regulations to be resolved.

    Recommendation: To enhance the likelihood that TMDLs support the nation's waters' attainment of water quality standards and to strengthen water quality management, the Administrator of EPA should develop and issue new regulations requiring that TMDLs include additional elements--and consider requiring the elements that are now optional--specifically, elements reflecting key features identified by NRC as necessary for attaining water quality standards, such as comprehensive identification of impairment and plans to monitor water bodies to verify that water quality is improving.

    Agency Affected: Environmental Protection Agency

  2. Status: Closed - Implemented

    Priority recommendation

    Comments: In February 2018, EPA officials stated that over the last few years, it has held several meetings with regional offices to discuss different TMDL topics such as monitoring, implementation, and reasonable assurance. The primary purpose of the meetings was to discuss best practices and examples and to emphasize more consistent application of regional review in these areas. EPA officials stated that these actions have changed the focus of the program in the place of regulations. We agree that these actions are helpful in guiding the regions to more consistently review TMDLs and will close this recommendation as implemented.

    Recommendation: To enhance the likelihood that TMDLs support the nation's waters' attainment of water quality standards and to strengthen water quality management, the Administrator of EPA should ensure more consistent application of existing TMDL elements and to provide greater assurance that TMDLs, if implemented, can achieve tangible water quality results, identify regional offices with criteria for interpreting and applying such elements in reviewing and approving state-developed TMDLs and issue guidance with more specificity, directing all regional offices to follow the same criteria, including requesting that states provide more-detailed information about pollution causes and abatement actions.

    Agency Affected: Environmental Protection Agency

  3. Status: Open

    Comments: In November 2016, EPA officials said that they believe the 2013 nonpoint source guidance substantially addresses this recommendation. Specifically, in April 2013, EPA issued revised guidance for awarding section 319 grants to states to implement nonpoint source management programs and projects. The guidance updates previous guidance to EPA regional offices and states in four key areas: (1) state nonpoint source management program plans, (2) funding distribution, (3) reviews of states' watershed-based plans, and (4) regional offices' annual progress determinations. We said that we would wait to review the effects of this guidance on funding for TMDL programs and projects in states. In March 2018, EPA provided 319 funding data for fiscal years 2012 through 2017 to demonstrate how much was awarded to implement TMDLs. This data shows that for the last 5 fiscal years, states have spent more than half of their funds on projects to implement TMDLs. In addition, EPA is drafting a project selection checklist for states that identifies key elements to consider that enhance the likelihood of successful nonpoint source projects, among other things. EPA said that the checklist will be available in the summer of 2018. We will review the checklist at that point to determine if it meets the intent of this recommendation.

    Recommendation: To enhance the likelihood that TMDLs support the nation's waters' attainment of water quality standards and to strengthen water quality management, the Administrator of EPA should place conditions on states' annual use of nonpoint source management and water pollution control grants to ensure that the funds meet the purposes for which they are awarded and achieve greater reductions in nonpoint source pollution associated with TMDL implementation, such as by targeting funds to states and projects that incorporate factors needed for effective TMDL implementation (e.g., targeting grant funds to projects where implementation plans have been developed and where external agency assistance is available).

    Agency Affected: Environmental Protection Agency

  4. Status: Open

    Priority recommendation

    Comments: In February 2018, EPA officials provided evidence of progress toward both parts of this recommendation. First, EPA officials demonstrated a pre-release version of a web-based application that aggregates data from different EPA databases. The application will have geo-located TMDL data in a module by the summer of 2018. To get the data from states for the application, in 2018, EPA requested that states provide TMDL information electronically. Second, EPA has worked with a number of states to request USDA to provide data on the location, type, and number of projects implemented by USDA programs. EPA officials also identified an alternative way for states to work with USDA, cooperative agreements, to get the data. EPA stated that the second approach can garner more data for the states, but the agency is encouraging both approaches. We agree that these actions make progress toward the recommendation, and would like to see the status of the web-based application for TMDL geo-located data.

    Recommendation: To enhance the likelihood that TMDLs support the nation's waters' attainment of water quality standards and to strengthen water quality management, the Administrator of EPA should obtain missing data that currently impede EPA's efforts to determine whether and to what extent TMDLs have been implemented or to what extent implemented TMDLs have helped impaired waters attain water quality standards by (1) directing states to use and report specific Geographic Information Systems data when implementing projects to which TMDLs apply and (2) requesting that USDA ask landowners who participate in conservation programs funded by the department in areas subject to a TMDL to disclose information on the location, type, and number of projects implemented under these programs.

    Agency Affected: Environmental Protection Agency

 

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