Background

Section 303(d)(1) of the Clean Water Act directs states to identify those waters within their jurisdiction for which effluent limitations required by section 301(b) of the Act are not stringent enough to achieve applicable water quality standard(s). This section also requires the states to establish a priority ranking for such "impaired waters," taking into account the severity of the pollution and the designated uses of the waters. A state's list of impaired waters is called its 303(d) list and must be submitted to EPA for approval by April 1st of every even-numbered year. States must then develop Total Maximum Daily Loads (TMDLs) for the waters on its 303(d) list, in accordance with their priority ranking. A TMDL represents the maximum amount of a particular pollutant that can be discharged to a water without causing a violation of water quality standards, calculated at a level sufficient to allow the impaired water to eventually achieve water quality standards with an adequate margin of safety.

At the National Level

On August 25, 2003, EPA published its draft implementation guidance on watershed permitting. 68 Fed. Reg. 51, 011. According to EPA, watershed permitting has a "strong link" with TMDL development to clean up impaired waters, as well as with watershed management and planning. Watershed-based permitting considers water quality goals of entire watersheds, rather than focusing on individual water body segments (as TMDLs do), and takes into account how those watersheds are affected by multiple pollution sources, both point and non-point. EPA claims that a watershed approach will help meet water quality goals more effectively than traditional permit-based approaches and will allow more opportunity for water quality trading, which could occur within the entire watershed rather than just on a single water body. The draft guidance is available at: http://cfpub.epa.gov/npdes/wqbasedpermitting/wspermitting.cfm

On July 21, 2003, EPA's Office of Wetlands, Oceans, and Watersheds issued its "Guidance for 2004 Assessment, Listing and Reporting Requirements Pursuant to Sections 303(d) and 305(b) of the Clean Water Act." Section 305(b) requires states to submit comprehensive biennial reports on all state waters. States must submit their 303(d) lists and 305(b) reports by April 1, 2004, and this Guidance (similar to 2002 guidance it replaces) encourages states to submit an Integrated Report containing both documents, using the Integrated Report format set forth in the Guidance. The key components of the Integrated Report are: geographic referencing of all water resources; categorization of waters (from 1, meets all designated uses, to 5, needs a TMDL) according to whether they meet water quality standards; identification, prioritization, and scheduling of waters needing TMDLs; identification of waters where information is not sufficient to determine its attainment status; and a schedule of monitoring for the next reporting cycle. The Guidance sets forth EPA's thoughts and guidance on the use of state assessment methodologies (like Florida's Impaired Waters Rule) to categorize and list waters. For the 2004 reports, it refines what should be considered minimum data requirements and sample size requirements used for assessment determinations and addresses probability-based sampling designs and use of a consistent methodology, or "geo-referencing" scheme, to establish water segments. The new Guidance specifically addresses issues raised during the 2002 listing cycle, such as the statistical methods that should be used for assessing exceedances and the percentage of exceedances that must occur for a water body to be deemed "impaired" under a state methodology. The Guidance reiterates EPA's support of a rotating-basing approach to assessing waters and provides how such an approach can be consistent with the April 1, 2004, deadline.

At the Florida level

Until June of this year, Florida's most recently approved 303(d) list has been approved by EPA in 1998. Since that time, the Florida Legislature enacted the Florida Watershed Restoration Act, directing FDEP to develop a rule setting forth the methodology by which FDEP would assess whether a water body should be included on the 303(d) list, thus needing a TMDL.

FDEP adopted its final Impaired Waters Rule, 62-303, on April 26, 2001. Following an unsuccessful rule challenge by various individuals and environmental groups, the rule became effective on June 10, 2002. DOAH Case No. 01-1332RP (Fla. DOAH May 13, 2002). The final order was appealed by the disappointed petitioners to Florida's First District Court of Appeal. The appellate court affirmed without opinion on May 8, 2003. Lane v. DEP, 845 So. 2d 189 (Fla. 1st DCA 2003). Not yet defeated, the environmental groups filed suit against EPA in federal district court, asserting that the Impaired Waters Rule was a revision to Florida's water quality standards and, as such, was required to be formally approved by EPA. Although EPA informally concurred with the Impaired Waters Rule before it was adopted, no formal approval process was followed. On May 29, 2003, the federal district court granted motions for summary judgment in favor of EPA and intervenor FDEP, holding that the Rule was not a revision of state water quality standards. Florida Public Interest Research Group Citizen Lobby et al. v. EPA, Civil Action No. 4:02CV408-WS (N.D. Fla. 2003). The challengers have still not thrown in the towel; on July 24, 2003, they filed a notice of appeal with the Eleventh Circuit Court of Appeals. No word yet on the outcome to this appeal.

As soon as its Impaired Waters Rule became effective, FDEP began using the Rule to update its 1998-303(d) list on a basin-by-basin basis. The FDEP organized the state's waters into 52 basins, which have in turn been organized into 30 groups. These groups have been further divided into five groups for purposes of applying FDEP's five-year, five-phase rotating basin cycle. Each group represents approximately 20% of the state's watersheds, and assessment of the waters in each group is occurring on a five-year cycle. As each group's verified list is adopted, it is submitted to EPA for approval and serves to update Florida's 1998 303(d) list for waters in those basins.

The so-called "Group 1 Basins" verified list of impaired waters was adopted by Secretarial order on August 28, 2002, and submitted to EPA Region IV on October 1, 2002. This submittal was amended on May 12, 2003. On June 11, 2003, EPA issued its "Decision Document" regarding this submittal, as amended. Although EPA determined that, overall, FDEP's application of the new assessment rule was "very successful" in identifying impaired waters, EPA identified 80 additional water segments that should have been included on the Group 1 verified list. Many of these 80 segments were de-listed by FDEP based on a requirement of the Watershed Restoration Act that requires the pollutant causing the impairment to be identified before the water segment can be listed as impaired. Thus, EPA has partially approved Florida's 2002 submission, but added those 80 water segments to the list. The entire currently approved 303(d) list is contained in an appendix to EPA's Decision Document.

FDEP is in the process of preparing impaired waters lists for its "Group 2 Basins." On September 4, the Secretary issued an order adopting the verified list of nutrient impaired waters for the main tem of the Lower St. Johns River, in advance of the remaining Group 2 Basin waters, in order to accommodate a September 30 deadline for TMDL development imposed by EPA. The verified list for the remaining waters in the Group 2 Basins is scheduled to be adopted in October, 2003. The combined Group 2 Basin verified list will then be submitted to EPA for approval in December.