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State of Washington Set to Issue Total Maximum Daily Load for Phosphorus in Spokane River Basin

October 29, 2009

The Washington State Department of Ecology (Ecology) recently issued a draft Total Maximum Daily Load (TMDL) report (Draft Report)[1] that could require some point sources to reduce their phosphorus discharges to the Spokane River by over 90 percent. Ecology’s Draft Report is its latest effort to address dissolved oxygen levels in portions of the Spokane River and Lake Spokane in eastern Washington. Nutrient levels in the water bodies have led to periodic algae blooms and the potential for unhealthy conditions for aquatic life in a portion of the lake. In part driven by these water quality concerns, Washington State recently banned the sale of household dishwasher detergents with more than 0.5 percent phosphorus in Spokane County under what will soon be a state-wide law.[2]

Ecology’s Draft Report establishes a ceiling for the amount of phosphorus and two other pollutants that impact dissolved oxygen levels that the water bodies can receive and still meet water quality standards for dissolved oxygen. The Draft Report assigns wasteload allocations for Washington point source dischargers, provides a plan for how dischargers can meet those wasteload allocations, and identifies a dissolved oxygen responsibility for a hydroelectric dam that Avista Utilities operates at Lake Spokane. Ecology contemplates that technology and operational controls will be insufficient to meet the requirements set out in the TMDL, and that regulated entities will implement a range of tools, such as working with nonpoint sources of phosphorus within the watershed, to meet their requirements.

Background to the Clean Water Act TMDL Program

Section 303(d) of the Clean Water Act (CWA) requires states to identify water bodies where technology-based effluent limits and other pollution control requirements “are not stringent enough to implement any water quality standard.”[3] For these water bodies on the 303(d) “list,” states must prepare TMDLs, which are calculations of the maximum “load” of a pollutant that a water body can receive from all sources, including point, nonpoint, and background sources, without exceeding the water quality standards for the pollutant. A “wasteload allocation” is the share of the loading capacity for a particular pollutant that comes from existing and future “point” sources that are subject to a National Pollutant Discharge Elimination System (NPDES) permit under CWA Section 402.[4] A “load allocation” is the share of the loading capacity attributable to nonpoint sources, such as runoff. Generally, the load and wasteload allocations comprise the TMDL.[5]

States must submit draft TMDLs to EPA for approval, and then incorporate the TMDLs into their continuing planning processes and water quality management plans.[6] Neither the CWA nor EPA’s implementing regulations prescribe the method whereby a state must allocate an impaired water body’s loading capacity between existing or future sources. EPA regulations allow tradeoffs between point and nonpoint sources, where implementation of best management practices (BMPs) or nonpoint source controls can reduce the load allocation and allow for a larger wasteload allocation for point sources.[7]

Implementation of the TMDL Program in Washington

Washington implements its TMDL program under CWA Section 303(d) through a 1997 Memorandum of Agreement between Ecology and EPA.[8] This Agreement includes multiple requirements that are more specific than either the CWA or EPA’s regulations. Under the Agreement, Ecology identifies 303(d) lists of impaired waters, sets a priority ranking for those waters, and establishes TMDLs under a specific schedule. Ecology assesses water quality conditions within its sixty-two defined Water Resource Inventory Areas, which are divided into twenty-three Water Quality Management Areas (WQMAs), under “a five-step process for systematically assessing water quality conditions, identifying and prioritizing problems, focusing staff effort, and developing an improved basis for decision making in each WQMA, including developing and implementing TMDLs, issuing permits, and undertaking other point and nonpoint source pollution prevention and control activities.”[9] The Memorandum of Agreement specifies that TMDLs must, among other things: (1) describe the applicable water quality standards, including the protected uses and “problems to be corrected”; (2) analyze pollution sources; (3) describe alternative allocation strategies; (4) provide a final allocation scheme with a description of how the allocations were developed; and (5) provide reasonable assurances that nonpoint source load allocations will be achieved when wasteload allocations “are based on the assumption that loads from nonpoint sources will be reduced.”[10]

Background to the Spokane River TMDL

The Spokane River originates at Lake Coeur d’Alene in Idaho, travels through the City of Spokane and the Spokane Tribe’s reservation, and empties into the Columbia River. Seven hydroelectric dams in Washington significantly impact the hydrodynamics of the river, one of which – operated by Avista Utilities – creates Lake Spokane (also known as Long Lake), a twenty-four mile long reservoir downstream from Spokane. Historically, the relatively placid waters of Lake Spokane were prone to eutrophication, excessive plant growth in response to high nutrient levels, which can reduce the oxygen in the water to levels that cannot sustain healthy populations of fish or aquatic species. Excessive nutrients also can result in algae blooms, which impair recreational use, and can even pose health risks. Improvements several decades ago in the treatment of wastewater discharged to the Spokane River substantially reduced nutrient loads, improving water quality in Lake Spokane. However, elevated nutrient levels can still occur in the lake, contributing to the continuing regulatory focus on nutrient discharges to the Spokane River.

After a series of algae blooms in Lake Spokane in the 1970s, Ecology developed a total phosphorus TMDL in a 1989 Phosphorus Management Plan.[11] Subsequent algae blooms and violations of water quality standards for dissolved oxygen and phosphorus led Ecology to include Lake Spokane and some portions of the Spokane River on Washington’s 303(d) lists of impaired bodies of water in 1996, 1998, and 2004.[12] In collaboration with local stakeholders, Ecology developed a draft dissolved oxygen TMDL in 2004. The 2004 study focused on point source dischargers of nutrients and deferred a role for Avista’s Long Lake Dam to the “certification” process under CWA Section 401 that was underway within a broader Federal Energy Regulatory Commission (FERC) relicensing effort.[13] In response to concerns from stakeholders and the development of a working group comprised of stakeholders and regulators, Ecology revised the draft TMDL in 2007 and 2008.[14] Although these drafts accounted for nonpoint sources of pollution and anticipated that point source dischargers could use “pollutant trading” to meet their allocations, critics argued that Ecology had not incorporated an allocation for the impacts of Long Lake Dam, and that it made inaccurate assumptions about the limits that EPA would include in NPDES permits issued to Idaho dischargers.[15]

Ecology’s Draft Report

Ecology’s Draft Report consists of a TMDL study and a Managed Implementation Plan for improving water quality in the Spokane River and Lake Spokane. The TMDL study addresses three substances that affect dissolved oxygen levels in the water bodies (ammonia, total phosphorus, and carbonaceous biochemical oxygen demand (CBOD)),[16] and establishes wasteload allocations for five current and future point source dischargers and stormwater. Additionally, the TMDL establishes load allocations for nonpoint sources, which Ecology premised on assumptions regarding the anthropogenic nonpoint source loading in tributaries to the Spokane River. Whether these assumptions prove accurate could have a significant impact on future implementation of the TMDL. Further, the Draft Report identifies Avista’s dissolved oxygen responsibility at its hydroelectric dam at Long Lake. By including Avista in the TMDL, the Draft Report melds together the outcomes of the TMDL process and the parallel process that produced the CWA 401 certification for Avista’s Spokane River Hydroelectric Project, which Ecology had separated out from the previous drafts of the TMDL. The Managed Implementation Plan includes recommended actions for improving water quality in the Spokane River and Lake Spokane, a description of ongoing implementation activities, a strategy for monitoring progress and changes in water quality, a summary of public involvement methods, and potential sources of funding to implement the activities.[17]

Four entities currently discharge into the main stem of the Spokane River between the Idaho border and Lake Spokane, and a fifth point source (a wastewater treatment plant in the Spokane Valley) is in development.[18] Together, Ecology refers to these entities as “Dischargers” in the Draft Report. Three other entities discharge to the Spokane River in Idaho under NPDES permits issued by EPA.[19]

The TMDL assigns aggressive wasteload allocations to the Dischargers, which could require up to 94 percent seasonal reductions in phosphorus discharges.[20] The Draft Report contemplates that the Dischargers will attempt to meet the wasteload allocations by installing the most effective feasible nutrient removal treatment technologies, which the Dischargers are currently piloting.[21] However, Ecology presumes that many Dischargers will not be able to use technology to meet the phosphorus reductions called for in the TMDL. Therefore, the Draft Report outlines additional “target pursuit” actions for the Dischargers to undertake. Those actions include greater conservation, operational controls, source removal actions, and nonpoint source control efforts.[22] The Draft Report presumes that the Dischargers will meet the wasteload allocations within ten years, and contemplates conducting periodic assessments of progress toward this goal and necessary adjustments to the affected NPDES permits.[23]

The TMDL also sets wasteload allocations for stormwater discharges to the Spokane River. The majority of stormwater that enters the Spokane River comes from the City of Spokane, and a significantly smaller volume comes from the City of Spokane Valley, both of which discharge stormwater through NPDES permits for municipal separate stormwater sewer systems (MS4s).[24] Additionally, Washington highways discharge stormwater to the Spokane River under the Washington State Department of Transportation Municipal Stormwater NPDES General Permit. Because the areas covered by the stormwater dischargers within the TMDL area are contiguous, the TMDL sets a single numeric wasteload allocation for total point source stormwater dischargers.[25] Ecology intends to regulate these entities through construction, industrial, and WSDOT stormwater permits, which establish the primary activities and BMPs that will be necessary to control pollution from stormwater.[26] The Draft Report also identifies various actions that MS4s will be required to implement, such as determining the stormwater outfalls with the greatest impacts to the water bodies, monitoring phosphorus, ammonia, and CBOD in stormwater, and comparing these results to the wasteload allocations in the TMDL.[27]

The Draft Report also identifies actions required of Avista at its Long Lake Dam. According to Ecology, even though the dam creates Lake Spokane, the dam “causes Lake Spokane to violate the water quality standard for dissolved oxygen by making the lake more sensitive to pollutants than the river.”[28] For this reason, the Draft Report “assigns responsibility to Avista to remedy the water quality problems caused by Long Lake Dam.”[29]

Avista operates Long Lake Dam under a FERC license. Under the conditions outlined in Ecology’s CWA Section 401 certification, included in the FERC license, Avista is required to comply with the TMDL, i.e., Avista must “meet its responsibility to achieve water quality criteria for dissolved oxygen in conformance with the dissolved oxygen improvements identified in this TMDL.”[30]

Ecology last issued a CWA Section 401 certification for Long Lake Dam on May 11, 2009. After EPA approves the TMDL, Ecology will amend its CWA Section 401 certification for the dam and require Avista to develop within two years a dissolved oxygen Water Quality Attainment Plan (WQAP) that will describe all reasonable and feasible measures that Avista will take to meet its dissolved oxygen responsibility.[31] Similar to the Dischargers, Avista may also satisfy its responsibilities by reducing “nonpoint source contributions to the reservoir by implementing BMPs and pollutant controls on lands that would otherwise directly contribute pollutants to the reservoir.”[32]

The Draft Report will also have indirect impacts on Idaho dischargers. Although the State of Washington lacks the authority to establish wasteload allocations for Idaho dischargers, federal regulations bar EPA from issuing NPDES permits to Idaho point sources without ensuring that the conditions in the permits will comply with a downstream state’s water quality requirements.[33] As a result, the Draft Report is based on the assumption that EPA “will incorporate permit limits, consistent with the assumptions in this TMDL, into the NPDES permits for Idaho point source dischargers” in a manner that ensures achieving dissolved oxygen water quality standards in Lake Spokane.[34]

Next Steps

The comment period on Ecology’s Draft Report closes on October 30, 2009.[35] Ecology will assess comments received and submit a final version of the Report to EPA. If EPA approves the document, Ecology will issue NPDES permits to the Dischargers, and will develop a Water Quality Implementation Plan within one year, in collaboration with interested parties, that will describe and prioritize the specific actions that are expected to achieve the water quality standards in the area.[36]

For more information on the TMDL program, including the Spokane River TMDL, please contact any member of Marten Law Group’s water quality practice group.

[1] Spokane River and Lake Spokane Dissolved Oxygen Total Maximum Daily Load Draft Water Quality Improvement Report (Sept. 2009) (Draft Report).

[2] This law took effect in Spokane County on July 1, 2008, and will become effective state-wide during the summer of 2010. RCW 70.95L.020.

[3] 33 U.S.C. § 1313(d)(1)(A).

[4] Id. § 1342.

[5] See 40 C.F.R. Part 130.

[6] 33 U.S.C. § 1313(e)(3)(c); 40 C.F.R. § 130.6.

[7] See 40 C.F.R. § 130.2(i) (stating, in definition of TMDL, that, if BMPs “or other nonpoint source pollution controls make more stringent load allocations practicable, then wasteload allocations can be made less stringent,” such that “the TMDL process provides for nonpoint source control tradeoffs”). However, under EPA guidance, the states must provide assurances that these reductions will in fact occur. See EPA, Guidance for Water Quality Based Decisions: The TMDL Process (Apr. 1991).

[8] Memorandum of Agreement between the United States Environmental Protection Agency and the Washington State Department of Ecology Regarding The Implementation of Section 303(d) of the Clean Water Act (Oct. 29, 1997).

[9] Id. at 4.

[10] Id. at 11.

[11] Draft Report at 3.

[12] Id.

[13] See id.

[14] Id. at 3, B-3.

[15] Id. at 3-4.

[16] The Draft Report focuses on strategies to reduce phosphorus based on the presumption that those measures will also reduce ammonia and CBOD. See id. at vii.

[17] Id. at 45.

[18] These entities include: the City of Spokane Riverside Park Water Reclamation Facility and Combined Sewer Overflows, Inland Empire Paper Company, Kaiser Aluminum Fabricated Products, LLC, and the Liberty Lake Sewer and Water District. The NPDES permits for these entities are scheduled to be issued by early 2010. Id. at xi, 11.

[19] These entities include: The Post Falls Wastewater Treatment Plant, Hayden Area Regional Sewer Board, and the City of Coeur d’Alene Advanced Wastewater Treatment Plant. Id. at 11.

[20] Id. at 24.

[21] See id. at vii, 47, 57.

[22] The framework for the “target pursuit” actions was initially developed in a 2006 “Foundational Concepts” document through stakeholder collaboration. Memorandum of Agreement Regarding Foundational Concepts, Managed Implementation Plan, and Dissolved Oxygen TMDL for the Spokane River (June 30, 2006) (included as appendix D in the TMDL Report). These target pursuit actions include development of comprehensive technology selection protocols, preparation of “Delta Elimination Plans” and schedules “for other phosphorus removal actions such as conservation, effluent re-use, source control through support of regional phosphorus reduction efforts (such as limiting use of fertilizers and dishwater detergents), and supporting regional nonpoint source control efforts to be established,” and, specifically for municipal NPDES permit holders, development of plans “that reduce flows by funding indoor conservation efforts that target 20 percent water conservation per household in older urban areas, and 10 percent water conservation per household in newer (post 1992) urban areas.” Draft Report at 48-49. The Draft Report also sets out several optional target pursuit actions, such as use of reclaimed water, participation in regional phosphorus reduction programs, source control programs, and stormwater phosphorus control. Id. at 49. The Draft Report also outlines potential actions (described in the Foundational Concepts document) that could reduce nonpoint sources of phosphorus, and that may provide a phosphorus influent reduction or serve as a water quality offset. See id. at 51-52.

[23] See id. at 56-58.

[24] Id. at 29.

[25] Id.

[26] Id. at 49-50.

[27] Id. at 50-51.

[28] Id. at 24.

[29] Id.

[30] Id. at 11.

[31] See id. at 11, 35, 52-54. The WQAP will include a “plan to analyze, evaluate, and implement reasonable and feasible measures to improve dissolved oxygen conditions in Lake Spokane, based on the” dissolved oxygen TMDL, and a “compliance schedule for implementation that to the degree reasonable and feasible, is synchronized with the milestones and assessments of this TMDL and that doe not exceed ten years. . . .” Id. at 37; see also id. at 52-54.

[32] Id. at 52-53.

[33] See 40 C.F.R. § 122.4(d).

[34] Draft Report at 29.

[35] Ecology, Spokane River Dissolved Oxygen, the Status of the TMDL. See Letter from Spokane River Stewardship Partners to Ecology (Sept. 29, 2009).

[36] See Draft Report at 45, 66.

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