Tiffany Crawford of USEPA called a conference call for Thursday, August
30,2002, to clarify the outstanding question of land-use in relation to the
creation of nutrient criteria. Ms. Crawford arranged for several representatives
from EPA to provide guidance and answer questions for members of the committee.
The following summary represents the major points/conclusions:
Rodney Branson of the WV Farm Bureau summarized the purpose of the call, and
gave explanation for his concern that land-use need to be considered in the
nutrient criteria setting process.
The question at hand was where does land-use fit into the development of
nutrient criteria, if at all? Some purport that absent a sterile environment
land-use has impact on stream/water—to varying degrees—and standards
need to take into account land-use.
George Gibson explained that criteria should not be differentiated according
land-use, rather only by designated aquatic uses.
Bob Cantilli followed with an explanation of the Nutrient Criteria
EPA has sought to put land-use in a geographic context. EPA’s position
is not to control natural background levels of nutrients, but to address
excessive nutrient levels resulting from human impact. In setting nutrient
criteria, HQ has adopted an approach that the best way to develop a nutrient
benchmark for large geographical areas of similiar ecology, climate and
soils is to identify the highest quality waters within an area. The term
reference condition relates to nutrient levels associated with pristine or
minimally impaired waters within a particular geographic framework. These
could be found in areas of least human disturbance (e.g. parks, refuges,
forested areas). Logically, the existing water uses associated with
reference areas will be high quality and correlate the CWA uses of fishable
EPA uses a regional approach in developing nutrient criteria. It has come
up with nutrient aggregate eco-regions (West Virginia is in 11) to tailor
criteria given differences in natural geography (e.g., prairie, mountainous,
etc.), geology (e.g., soils), ecology, hydrology, and climate (e.g., arid,
wet, etc.) typical of different areas in the country. Currently, criteria
are being developed for freshwater in each eco-region. In addition, EPA has
developed criteria for level 3 ecoregions, which are subsets of the larger
Reference conditions are established for each eco-region (to some extent
land-use factors into this process). EPA realizes these geographic scales
are large and geographically coarse, and suggests States classify their
waters at a smaller scale, thus reduces variability within the population of
waters for which criteria are being developed. For instance, streams can be
further classified by stream order, lakes, by acreage and depth. Land use,
while a factor in the formation of ecoregions, is not a major determinant of
ecoregions. Land use tend s to inherently follow the physical and
climatological characteristics of a region. E.g. areas with naturally high
phosphorus soil and sufficient rainfall historically have become areas of
significant agriculture. Mountainous, rocky, naturally nutrient poor areas
and xeric areas have not.
Manjali Vlcan and Cara Lalley clarified the difference between criteria and
Criteria are established to protect designated uses.
States designate uses for particular waters (e.g., irrigation, fishing).
Uses should be "best uses" in establishing reference conditions.
When designated uses are set they must be protective of existing uses; the
existing use becomes a "floor."
Margaret Janes and Neil Gillies requested clarification.
A question was raised about the Clean Water Act requirements for uses to
which the response was: The Clean Water Act requires protection of fishable/swimmable
uses wherever attainable; thus the WQS regulation includes Use Attainability
Analysis (UAA) as part of the process.
Once appropriate use is designated, the establishment of criteria is
At this point it was established and understood by the NCC members on the
call that Land-use should not be looked at in the Nutrient Criteria setting
Ted Armbrecht reiterated the point and asked if everyone, especially the
agricultural representatives, understood the place of land-use in the
nutrient criteria planning process.
Tom Brand stated his clarity on the issue and his dissatisfaction with
the inflexibility of the water quality standards process.
Rodney Branson was still unclear why land-use does not fit into the
criteria setting process.
It was mentioned that a UAA might need to be considered prior to the criteria
setting process. However, given the cost and time that UAAs required, the EQB
representatives were not in favor of such action. Additionally there is no proof
that the current designated uses are inappropriate.
Jim Keating proposed an option to the state in establishing uses.
In setting use designations, there is something called "use
refinement," which means that a broad aquatic use category may not
provide sufficient precision for establishing criteria, so subcategories are
established. (See Code of Federal Regulations Part 131 (10), especially ©
and (d) and (g).
A UAA will be required in refinement if the new use being designated is less
protective than the use already designated. The refinement provides a structured
scientific framework for subcategorizing the general use categories. Refinement
requires that existing use still be achieved.
Joe Hankins questioned the scope of the Nutrient Criteria Committee effort
and the issue of reviewing designated uses.
Libby Chatfield responded on behalf of the EQB.
The EQB did not include a review of uses in the charge to the nutrient
standard committee. It was stated that if there is interest in exploring a
review of uses, the committee should bring that to the EQB.
Evan Hansen clarified that it had not been established by the Nutrient
Criteria Committee uses needed to be refined.
Rodney Branson questioned Libby Chatfield’s statement, referring to
page 6 of the Grubb’s memo.
There was no initial consensus among participants on the conference call and
further discussion on whether to ask for a review of uses was postponed until
the Nutrient Criteria Committee meeting on September 6, 2002.
General Conclusion: in regard to the question of land use vis-à-vis
criteria setting was summarized at the end of call: land use should not be
looked at in setting nutrient criteria. The designated use process is the place
where land-use plays some role and a potential refinement of uses is a separate
Question for EPA to follow up with: need explanation of the 75 percentile and
25 percentile references in the Grubb memo. Rodney will email question to
Tiffany as a reminder.
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Tiffany N. Crawford
US EPA Region III
Re; Land Use
Sorry, I was not able to conclude my thoughts on the Land
Use issue before the conference call was over.
In the report you are preparing I would appreciate clarification on a
was made (in the context of our conference call) to the fact that Land Use
considerations were taken into account as it relates to Ecoregions and/or
other designations. Please
clarify where Land Use has played a role as it relates to the task of
setting standards for nutrients in the overall process?
the Grub Memo Question 2. What
is a nutrient ecoregion….. EPA
states they used Land Use in development of Ecoregions; they go on to
encourage states to subdivide these ecoregions.
Using the example give by EPA subecoregions may very well be
considered based on Land Use. With
the theory that Land Use should not play a role in criteria development, how
can we justify factoring Land Use in the setting of Subecoregions,
Ecoregions , Etc.?
Grub Memo Question 5 referenced two methods of developing nutrient criteria.
The 1st using the 75th percentile of referenced
waters. The 2nd using the 25th
percentile of all waters in a given physical classification (e.g., an
ecoregion). Because water
samples become part of the equation in the methods referenced Land Use is
therefore a factor (25th percentile more so then the 75th
percentile method). This method
of establishing nutrient criteria clearly demonstrates land use playing a
role. To not allow States
through other methods to make the same kind of considerations is to apply a
double standard. If Land Use is
a factor in one scenario it has to be a factor in all. Agree or disagree and why?
Please include these comments in your report with your
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Options in Establishing Nutrient Criteria
September 5, 2002
Summary of call
In reference to the brief conversation on "use refinement" that
began during the land use teleconference on 8/29/02, more information was
provided on ways uses could be refined.
NOTE: Before attempting to refine uses, the state should first assess
if ecoregional criteria can be met with the present designation of uses in all
waters. Once the state has refined EPA’s criteria to be more reflective of
local conditions, nutrient levels may not be as stringent as initially assumed.
If it is determined that a large percentage of waters (e.g. agricultural or
non-point source areas) still will not be able to meet this ecoregional based
criteria even after all cost effective and reasonable BMPs are in place, then it
is the option of the State to consider use refinement ( a 3-step process).
In West Virginia the aquatic uses are fishable/swimmable, with a warm water
fishery as the default. To completely remove aquatic use from an area unable to
attain those uses would ultimately eliminate all aquatic life that may still
exist in those waters.
An example of use refinement:
Within warm and cold water uses, subdivide the use to reflect and
protect the different aquatic life in the waterbody, and to protect from
This would led to the creation of nutrient criteria to protect a
"moderately eutrophic" use. Other criteria such as toxics
necessary to protect for aquatic life would still apply.
Reminder: this criteria would be developed based on the level of
attainability with every effective and reasonable BMP already in place.
Use refinement is a process the would have to be reviewed and accepted by the
state as an amendment to the WQS. If the state chooses to adopt this use
category/categories into their standards, it would then also be up to the state
on where to apply this use(s). The state does have a process established where
anyone may submit evidence to the state and request that the state re-evaluate
the designated use for a specific waterbody. The State will be required to do a
UAA if they decide to change the use and the criteria for the new use is less
protective than the use already in place (131.10 (g))
*A brief presentation will be given by George Gibson and Manjali Vlcan on the
ideas presented above.*
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