Section 303(d) of the federal Clean Water Act (CWA), which Congress enacted in 1972, requires states, territories, and authorized tribes (states) to identify and establish a priority ranking for all waterbodies where technology-based effluent limitations required by section 301 are not stringent enough to attain and maintain applicable water quality standards. Once identified, states are to establish total maximum daily loads (TMDLs) for the pollutants causing impairment in those waterbodies, and submit, from time to time, the (revised) list of impaired waterbodies and TMDLs to the U.S. Environmental Protection Agency (EPA). The requirements to identify and establish TMDLs apply to all waterbodies regardless of whether a waterbody is impaired by point sources, nonpoint sources, or a combination of both (Pronsolino v. Marcus, 2000 WL 356305 (N.D. Cal. March 30, 2000)).
EPA issued regulations governing identification of impaired waterbodies and establishment of TMDLs in 40 CFR 130.7 in 1985 and revised them in 1992 and again in 2000. However, on March 19, 2003, a final rule to formally and completely withdraw the 2000 regulations was published in the Federal Register. Therefore, the 2020 listing of impaired waters will be conducted under the 1985 TMDL regulations, as amended in 1992.
Section 305(b) of the CWA directs states to prepare a report every two (2) years that describes the status and trends of existing water quality, the extent to which designated uses are supported, pollution problems and sources, and the effectiveness of the water pollution control programs.
Section 314 of the CWA requires that each Section 305(b) submittal include an assessment of water quality trends of public owned lakes including the extent of point and nonpoint source impacts due to toxics, conventional pollutants, and acidification.
On March 21, 2011, EPA issued guidance for the 2012 waterbody assessments and reporting requirements for Section 303(d), Section 305(b), and Section 314 of the Clean Water Act. No new guidance for the 2020 waterbody assessments and reporting requirements for Section 303(d), Section 305(b), and Section 314 of the Clean Water Act have been provided; however on September 26, 2019 EPA sent a memo, “Information Concerning 2020 and 2022 Clean Water Act Sections 303(d), 305(b), and 314 Integrated Reporting and Listing Decisions.” The final product is again being referred to as an Integrated Report (IR). EPA’s goal for this report is to provide the general public with a comprehensive summary of state and national water quality. The Nebraska Department of Environment and Energy1 (hereinafter NDEE or “the Department”) has opted to prepare such a report not only for the general public but also for water quality management planning purposes (e.g. future monitoring, TMDL development, best management practice implementation).
To facilitate the waterbody assessment process and accommodate the above recognized needs, the Department prepared and utilized the Methodologies for Waterbody Assessment and Developing the 2020 Integrated Report for Nebraska. These procedures lay out the step-by-step process that was undertaken to characterize surface waterbodies.