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Home My WebLink AboutDWQ-2024-003594 Ref: 8WD-CWQ SENT VIA EMAIL DIGITAL READ RECEIPT REQUESTED Jodi Gardberg, Manager Utah Department of Environmental Quality jgardberg@utah.gov Re: Utah 2024 Clean Water Act Section 303(d) Total Maximum Daily Load (TMDL) Waterbody List Dear Ms. Gardberg: Thank you for your submittal of the Utah Division of Water Quality (DWQ) 2024 Integrated Report received April 1, 2024. The U.S. Environmental Protection Agency Region 8 conducted a complete review of the Clean Water Act (CWA) Section 303(d) waterbody list (Section 303(d) list) and supporting documentation and information. The EPA determined Utah’s 2024 CWA Section 303(d) list meets the requirements of Section 303(d) of the CWA and the EPA’s implementing regulations found at 40 C.F.R. Part 130 and approves Utah’s 2024 CWA Section 303(d) list. The EPA’s approval of Utah’s submitted 303(d) list does not extend to Indian country as defined in 18 U.S.C. Section 1151. Indian country in Utah generally includes (1) lands within the exterior boundaries of the following Indian reservations located within Utah, in part or in full: the Goshute Reservation, the Navajo Indian Reservation, the lands of the Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes), the Skull Valley Indian Reservation, the Uintah and Ouray Reservation (subject to federal court decisions removing certain lands from Indian country status within the Uintah and Ouray Reservation), and the Washakie Reservation (2) any land held in trust by the United States for an Indian Tribe; and (3) any other areas that are “Indian country” within the meaning of 18 U.S.C. Section 1151. Today’s action is not intended as an action to approve or disapprove Utah’s impaired waters list for waters within Indian country. The EPA, or eligible Indian Tribes, as appropriate, retain responsibilities under CWA section 303(d) in Indian country. The enclosure describes the statutory and regulatory requirements of the CWA Section 303(d) list and a summary of the EPA’s review of Utah’s compliance with each requirement. The EPA appreciates DWQ’s work to produce Utah’s 2024 CWA Section 303(d) list. If you have any questions, the most knowledgeable EPA staff person is Sarah Wheeler who may be reached at (303) 312-6379 or wheeler.sarah@epa.gov. Sincerely, Stephanie DeJong, Manager Clean Water Branch Enclosure cc: Alan Ochoa Rodriguez, DWQ 1 Review of Utah’s 2024 Section 303(d) Waterbody List Date of Submission to and Receipt by EPA: April 1, 2024 I. Introduction In July 2005, the U.S. Environmental Protection Agency issued guidance for integrating the development and submission of 2006 Clean Water Act (CWA) Section 305(b) water quality reports and CWA Section 303(d) lists of impaired waters1. This guidance, and subsequent EPA memoranda, recommends that states develop an Integrated Report of the quality of their waters by placing all waters into one of five assessment categories. By following this guidance, Category 5 of the Integrated Report is the State’s CWA Section 303(d) list. The EPA’s action in review and approval of this document is only on Category 5 that comprises the CWA Section 303(d) list within the Integrated Report. The Utah Division of Water Quality (DWQ) submitted its final 2024 Integrated Report to the EPA on April 1, 2024. Based on our review of the State’s CWA Section 303(d) water body list (“Section 303(d) list”), the EPA is approving Utah’s 2024 Section 303(d) list as submitted in Assessment, Total Maximum Daily Load Tracking and Implementation System (ATTAINS).2 The EPA’s approval of Utah’s submitted 303(d) list does not extend to Indian country as defined in 18 U.S.C. Section 1151. Indian country in Utah generally includes (1) lands within the exterior boundaries of the following Indian reservations located within Utah, in part or in full: the Goshute Reservation, the Navajo Indian Reservation, the reservation lands of the Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes), the Skull Valley Indian Reservation, the Uintah and Ouray Reservation (subject to federal court decisions removing certain lands from Indian country status within the Uintah and Ouray Reservation), and the Washakie Reservation; (2) any land held in trust by the United States for an Indian Tribe; and (3) any other areas that are “Indian country” within the meaning of 18 U.S.C. Section 1151. Today’s action is not intended as an action to approve or disapprove Utah’s impaired waters list for waters within Indian country. The EPA, or eligible Indian Tribes, as appropriate, retain responsibilities under CWA section 303(d) in Indian country. II. Statutory and Regulatory Background A. Identification of Water Quality Limited Segments (WQLSs) for Inclusion on Section 303(d) List Section 303(d)(1) of the CWA directs states to identify those waters within its jurisdiction for which effluent limitations required by CWA Section 301(b)(1)(A) and (B) are not stringent enough to implement any applicable water quality standard, and to establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. The CWA 1 https://www.epa.gov/sites/production/files/2015-10/documents/2006irg-report.pdf 2 https://attains.epa.gov/attains/login 2 Section 303(d) listing requirement applies to waters impaired by point and/or nonpoint sources, pursuant to the EPA’s long-standing interpretation of CWA Section 303(d). The EPA’s regulations implementing CWA Section 303(d) require states to identify water quality limited segments (WQLSs) that need total maximum daily loads (TMDL). 40 C.F.R. § 130.7(b). WQLSs 3 are defined in regulation as segments “where it is known that water quality does not meet applicable water quality standards, and/or is not expected to meet applicable water quality standards, even after the application of the technology-based effluent limitations required by sections 301(b) and 306 of the Act.” 40 C.F.R. § 130.2(j). B. Existing and Readily Available Water Quality-Related Data and Information In developing CWA Section 303(d) lists, states are required to assemble and evaluate all existing and readily available water quality-related data and information, including, at a minimum, for the following categories of waters: (1) waters identified as not meeting designated uses, or as threatened, in the state's most recent CWA Section 305(b) report; (2) waters for which dilution calculations or predictive modeling indicate nonattainment of applicable standards; (3) waters for which water quality problems have been reported by governmental agencies, members of the public, or academic institutions; and (4) waters identified as impaired or threatened in any CWA Section 319 nonpoint assessment submitted to the EPA. (40 C.F.R. § 130.7(b)(5)). In addition to these minimum categories, states are required to assemble and evaluate any other data and information that is existing and readily available. 40 C.F.R. § 130.7(b)(5). The EPA's Guidance for 2006 Assessment, Listing and Reporting Requirements Pursuant to Sections 303(d), 305(b) and 314 of the CWA 4 describes categories of water quality-related data and information that may be existing and readily available. While states are required to assemble and evaluate all existing and readily available water quality- related data and information, states may decide to use or not use particular data or information in determining whether to list particular waters. The EPA’s regulations at 40 C.F.R. § 130.7(b)(6) require states to include, as part of their submissions to the EPA, documentation to support decisions to use or exclude particular data and information and decisions to list or not list waters. Such documentation needs to include, at a minimum, the following information: (1) a description of the methodology used to develop the list; (2) a description of the data and information used to identify waters; (3) a rationale for any decision not to use any existing and readily available data and information 40 C.F.R. § 130.7(b)(5)5, and (4) any other reasonable information requested by the Region including a demonstration of “good cause” for removing waters from states’ 303(d) lists (40 C.F.R. § 130.7(b)(6)(iv)). 3 WQLSs may also be referred to as “impaired waterbodies” or “impairments” throughout this document. 4 Guidance for 2006 Assessment, Listing and Reporting Requirements Pursuant to Sections 303(d), 305(b) and 314 of the Clean Water Act. Pages 30-32. https://www.epa.gov/sites/production/files/2015-10/documents/2006irg-report.pdf. 5 EPA will evaluate whether a state, territory, or authorized Tribe provides a technical, science-based rationale for decisions not to use data or information. See EPA’s 2024 Integrated Reporting memorandum at 8; see also EPA’s 2006 Integrated Reporting memorandum at 37 (noting that the EPA will evaluate whether the rationale provided is “reasonable” and “technical”). 3 C. Priority Ranking The EPA’s regulations also codify and interpret the requirement in Section 303(d)(1)(A) of the CWA that states establish a priority ranking for listed waters. The regulations at 40 C.F.R. § 130.7(b)(4) require states to prioritize waters on their CWA Section 303(d) lists for TMDL development, and also to identify those WQLSs targeted for TMDL development in the next two years. In prioritizing and targeting waters, states must, at a minimum, take into account the severity of the pollution and the uses to be made of such waters. (CWA Section 303(d)(1)(A)). States may consider additional factors relevant to prioritizing waters for TMDL development, including immediate programmatic needs such as wasteload allocations for permits, vulnerability of particular waters as aquatic habitats, recreational, economic, and aesthetic importance of particular waters, degree of public interest and support, and state or national policies and priorities. (See 57 Fed. Reg. 33040, 33045 (July 24, 1992)6, EPA's 1991 Guidance,7 EPA’s 2022-2032 303(d) Program Vision,8 and EPA’s 2024 Integrated Report memo 9). D. Applicable Water Quality Standards For purposes of identifying waters for the CWA Section 303(d) list, the terms “water quality standard applicable to such waters” and “applicable water quality standards” refer to those water quality standards established under Section 303 of the Act. On April 27, 2000, the EPA promulgated a rule under which the “applicable standard” for CWA purposes depends on when the relevant states or authorized Tribes promulgated that water quality standard. Water quality standards that states or authorized Tribes have promulgated before May 30, 2000 are effective upon promulgation by the states or authorized Tribes. Water quality standards that states or authorized Tribes promulgated on or after May 30, 2000 become effective for CWA purposes only upon the EPA’s approval. 40 C.F.R § 131.21(c). The EPA interprets CWA Section 303(d) to require the EPA to establish or approve of CWA Section 303(d) lists only for impairments of waters with CWA effective water quality standards. III. Analysis of Utah’s Submission A. Background In previous guidance, the EPA recommended that states and authorized Tribes develop an Integrated Report of the quality of their waters by placing all waters into one of five assessment categories. (See EPA’s Guidance for 2006 Assessment, Listing and Reporting Requirements Pursuant to Sections 303(d), 305(b) and 314 of the CWA, July 29, 2005.)10 By following this guidance, Category 5 of the Integrated Report is the state’s CWA Section 303(d) list. The EPA’s action in review and approval of this document is only with regards to Category 5, which comprises the CWA Section 303(d) list within the Integrated Report. 6 July 24, 1992, Federal Register Notice, 40 C.F.R. Parts 122, 123, 130, Revision of Regulation, 57 Fed. Reg. 33040 (July 24, 1992). 7 April 1991, "Guidance for Water Quality-Based Decisions: The TMDL Process," EPA 440/4-91-001. 8 September 2022, “2022-2032 Vision for the Clean Water Act Section 303(d) Program", https://www.epa.gov/tmdl/Vision. 9 March 2023. “Information Concerning 2024 Clean Water Act Sections 303(d), 305(b), and 314 FROM: TO: Integrated Reporting and Listing Decisions,” https://www.epa.gov/system/files/documents/2023-03/2024IRmemo_032923.pdf. 10 https://www.epa.gov/sites/production/files/2015-10/documents/2006irg-report.pdf 4 In reviewing Utah’s submittal, the EPA first reviewed the methodology used by the State to develop its 2024 CWA Section 303(d) list considering Utah’s approved water quality standards, and then reviewed the actual list of waters. The EPA has reviewed the State's submission and determined that the State developed its CWA Section 303(d) list in compliance with Section 303(d) of the CWA and 40 C.F.R. § 130.7. The State’s CWA Section 303(d) list, 2024 Integrated Report, CWA Section 303(d) Listing Methodology, and geospatial coverage of assessment units was submitted electronically through Assessment, Total Maximum Daily Load (TMDL) Tracking and Implementation System (ATTAINS) to the EPA Region 8 on April 1, 2024. Utah’s 2024 Integrated Report submitted to the EPA via ATTAINS consisted of the following portions that are necessary for the CWA Section 303(d) waterbody list. 40 C.F.R. § 130.7(b)(4): • Waterbodies and corresponding pollutants that make up the state’s Section 303(d) list • Prioritization of waterbodies for TMDL development • Identification of waters targeted for TMDL development over the next biennium The EPA’s approval of Utah’s year 2024 CWA Section 303(d) list extends only to the items listed immediately above. The 2024 CWA Section 303(d) waters include the following information for each waterbody: assessment unit identifier, assessment unit name, water size, assessment unit category, category description, water quality parameter, parameter status, CWA Section 303(d) status, use(s), cycle first listed, and CWA Section 303(d) priority. B. Identification of Waters and Existing and Readily Available Water Quality-Related Data and Information The EPA reviewed Utah’s description of the data and information it evaluated for identifying waters on the CWA Section 303(d) list. The State relied on information from CWA Section 305(b) water quality assessments, assessments performed under the CWA Section 319 non-point source program, as well as data and information obtained through the State’s process to solicit information from State, federal and citizen sources. Based upon its review, the EPA concludes the State’s process for developing its 2024 CWA Section 303(d) list was reasonable and is approving the State’s submission pursuant to Section 303(d) and the implementing regulations at 40 C.F.R. § 130.7. C. Waters Removed from the CWA Section 303(d) List In addition to adding WQLSs that require TMDLs to its CWA Section 303(d) list, a state may also remove waters from its list when such removal is justified. The EPA identified several reasons that justify the removal of a water from a State’s CWA Section 303(d) list11. These include: 1. The State prepared and the EPA approved a TMDL for the listed water. 11 https://www.epa.gov/sites/production/files/2015-10/documents/2006irg-report.pdf 5 2. The original basis for listing the water was incorrect. 3. New data or information indicates that the applicable water quality standard for the water is being met and its designated uses are fully supported. 4. The State adopted and the EPA approved a site-specific water quality standard for the water, and the new water quality standard is being met. A full accounting of waters removed from the State’s 2022 CWA Section 303(d) list is summarized in ATTAINs. The State’s removal decisions and stated justifications are summarized below: Number of Waterbody-Pollutant Combinations Removed from List Reason Waterbody/Pollutant Combinations TMDL Approved or established by the EPA (4a) 20 Applicable water quality standard attained, original basis for listing incorrect 8 Applicable water quality standard attained, based on new data 24 Applicable water quality standard attained, due to restoration activities 3 Total 55 In reviewing the State’s 2024 CWA Section 303(d) waterbody list, the EPA carefully considered Utah’s decision to remove certain waterbody-pollutant combinations from the State’s 2022 CWA Section 303(d) list, its justification for those removals, and the methodology it used in making those decisions. The EPA concludes that the removal decisions identified in the Integrated Report are based on all existing and readily available water quality-related data and information, and that the removal decisions are properly justified. D. Priority Ranking and Schedule for Development of TMDLS for Listed Waters and Pollutants Pursuant to the State’s 2024 CWA Integrated Report, DWQ outlined its TMDL Prioritization Process in ATTAINs. The State prioritizes impairments based on human and ecological health, which translate into the protection and restoration of waters designated for culinary, recreational, and aquatic life uses. The State also considers the level of partner agency and stakeholder involvement and potential for restoration as defined by the Recovery Potential Screening Tool. Other factors considered include a widely-distributed public survey on the uses and threats to Utah’s waters. The EPA reviewed the State's priority ranking of listed waters for TMDL development and concluded that the State properly took into account the severity of pollution and the uses to be made of such waters, as required by 40 C.F.R. § 130.7(b)(4), as well as other relevant factors such as imminent human health problems or local support for water quality improvement. In addition, the EPA concluded that the priority ranking shall specifically include the identification of waters targeted for TMDL development in the next two years, as required by 40 C.F.R. § 130.7(b)(4). 6 IV. Final Recommendation on Utah’s 2024 CWA Section 303(d) List Submittal After careful review of Utah’s final CWA Section 303(d) list submittal package, the EPA determined Utah’s 2024 CWA Section 303(d) list meets the requirements of Section 303(d) of the CWA and the EPA's implementing regulations. Except for any waters in Indian country, as discussed in Section I, the EPA approves Utah’s 2024 Section 303(d) list.