SAMPLE LETTER :
[NAME]
Director, Water Program
[STATE ENVIRONMENTAL AGENCY]
[ADDRESS]

Dear [NAME]:

On behalf of the thousands of concerned citizens in this state and around the country, [INSERT NAME OF ORGANIZATION] urges you to ensure that the state fulfills its Clean Water Act responsibilities by preparing a comprehensive and detailed listing of impaired waters under Section 303(d) of the Clean Water Act, and by fully including the public in the listing process. The listing of impaired waters represents an important opportunity for this state and all others to move toward achieving our national goals of fishable, swimmable waters.

1. The State Must List All Impaired or Threatened Waters.
As you know and as the U.S. Environmental Protection Agency (EPA) has recently emphasized, the federal Clean Water Act (CWA) section 303, 33 U.S.C. § 1313, requires each state to “identify those waters within its boundaries for which the [technology-based or other existing] effluent limitations are not stringent enough to implement any water quality standard [WQS] applicable to such waters.” 33 U.S.C. § 1313(d)(1)(A). EPA regulations and policy clarify that states must identify all segments of waterbodies which do not or may not within the next two years meet numeric water quality criteria, narrative criteria, waterbody designated or existing uses or antidegradation requirements. 40 C.F.R. § 130.7(b)(3), (5); National Clarifying Guidance for 2000 State and Territorial Section 303(d) Listing Decisions (Aug. 17, 1997) (set forth with memorandum from Robert Wayland, III to Water Division Directors) (“Clarifying Guidance”), page 2. Thus it is not acceptable for the state not to list, for example, threatened waters or waters that have been identified as impaired by data other than chemical water quality samples indicating exceedences of numerical standards. Similarly, the state must list those waterbodies which can reasonably be expected to fail to meet WQS in the future due to, for example, a planned housing or industrial development.

2. The State Must Use All Existing Data and Actively Solicit Public Input.
In developing its list of all threatened or impaired waters, the state must use “all existing and readily available water quality-related data and information.” 40 C.F.R. §§130.7(b)(5). This data includes, at a minimum, waters identified in the most recent state section 305(b) report as “partially meeting” or “not meeting” designated uses or as “threatened;” waters calculated by models not to meet water quality standards; or waters “for which water quality problems [including fishing, shellfishing, or recreational restrictions] have been reported” by local, federal or state agencies, member of the public or academic institutions. 40 C.F.R. § 130.10(d)(6). This inclusive list of sources of information means that the state may not exclude information because of arbitrary limitations on what it considers acceptable data. The recently-issued EPA Index of Watershed Indicators is also an appropriate data source. Clarifying Guidance, page 2. Nor may the state refuse to list any impaired or threatened waterbody segment because it does not know the source of the pollutants causing the impairment. Id. at 4-6.

Not only must the state use all existing and available information, but the state must actively solicit such information from other agencies, the public, and all possible sources. 40 C.F.R. § 130.7(b)(5)(iii); Clarifying Guidance, page 2. In addition to actively soliciting information from the public, the state must make all information available for public review, 40 C.F.R. § 130.7(c)(ii), through notice, hearing, and opportunity for oral and written comment. 40 C.F.R. §§ 25.2(a), 25.4(d). See also New Policies for Establishing and Implementing Total Maximum Daily Load (TMDLs) (Aug. 8, 1997) (set forth in memorandum from Robert Perciasepe to Regional Administrators Regional Water Division Directors) (“New Policies”), page 3.

[TAILOR THE FOLLOWING 2 PARAGRAPHS TO FIT YOUR OWN KNOWLEDGE OF WHAT THE STATE HAS/HAS NOT DONE AND WHAT YOU WANT THE STATE TO DO]

We request that you provide us as soon as possible with any draft list that the State has prepared in preparation for the April 1, 2002 submittal deadline, so that we can begin to review it before it is submitted to EPA. It is important to note that input from citizens, the academic community and others must be sought early enough in the listing process to have an impact on the substance of the State’s decisions. 40 C.F.R. § 25.4(c), (d).

We further ask that you inform us immediately of any public meetings or hearings that you plan to hold to solicit input on the State’s draft list. If no such public meetings have been scheduled we ask that one [or more] be arranged as soon as possible, to allow us to present information about waters which we believe should be listed and to comment on any proposed de-listings. To ensure that we receive notice of all relevant materials, meetings and decisions, please place us on the list which you are required to maintain. See 40 C.F.R. § 25.4(b), of people who wish to be kept informed about this issue.

[INCLUDE THE FOLLOWING REQUEST IF YOU NEED IT]

We hereby request a copy of the State’s most recent “305(b) Report” to EPA on the state of its water quality, which will assist us in the evaluation of the 303(d) list.

3. The List Must Include Waters Impaired by All Sources and Other Information.
The list must include all impaired or threatened waters, even those impaired solely or primarily by polluted runoff (nonpoint source pollution). 40 C.F.R. § 130.2(i). EPA recently reiterated that the “section 303(d) list provides a comprehensive inventory of waterbodies impaired by all sources, including point sources, nonpoint sources, or a combination of both.” Clarifying Guidance, page 5 (quoting EPA’s Guidance for 1994 Section 303(d) Lists (Nov. 26, 1993). EPA also recently emphasized that EPA’s and the States’ duties apply to “all section 303(d)-listed waters impaired solely or primarily by nonpoint sources.” New Policies, page 4. Thus, the list must include waters impaired solely or primarily by runoff sources such as agriculture, timber or urban development.

The list must not merely be a list of waterbody segments. EPA regulations and guidance make clear that the state list must include for each segment (i) a priority ranking, 40 C.F.R. § 130.7(b)(4); (ii) “the pollutants causing or expected to cause” the WQS violations, id.; (iii) whether the “waterbody is impaired for one or more pollutants,” Clarifying Guidance, page 2; and (iv) the location of the segment through a geographic information system (GIS) or latitude/longitude, id. at 7-8. Overall, the list must include a “description of the methodology used to develop the list” and “of the data and information used to identify waters.” 40 C.F.R. § 130.7(b)(6).

Of course, the section 303 process does not end with the list. Once the list is created, the state must establish the total maximum daily load at a level that will achieve and maintain applicable water quality standards, 33 U.S.C. § 1313(d)(1)(C); incorporates seasonal variations, id.; incorporates a margin of safety, id.; which “takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality,” 40 C.F.R. § 130.7(c)(1); and accounts for both point and nonpoint sources, 40 C.F.R. § 130.2(i). These TMDLs must also be developed with full public participation. 40 C.F.R. § 130.7(c)(ii). Crucially, the TMDL must be coupled with an implementation plan which, at a minimum, provides “reasonable assurances” that the nonpoint source load allocations established by the TMDLs will in fact be achieved. New Policies, page 5. The state should be thinking ahead to these issues as it develops the section 303(d) list.

To emphasize a few important points noted above, we reiterate:

• Waters that are likely to be impaired within the next two years must be listed;
• All sources of data such as any use impairments – e.g. fish advisories, shellfish restrictions, beach closures – and any water quality problems identified by any person – e.g. pollution spills, fish kills, visible algae blooms or noticeable odors, stream bed or bank alterations – must be used in developing the lists;
• Waters impaired or threatened primarily or solely by runoff sources, such as agriculture, timber or development, or atmospheric deposition or heat must be listed;
• The lists must identify the specific pollutants causing the impairment or threat and the specific source of the pollutant to the greatest extent possible;
• The lists must accurately identify the waterbody segment through a GIS system or other equally precise means; and
• The state must fully include the public in the listing process by, among other things, actively soliciting their information and holding hearings.

We look forward to working with you to make sure that the April 2002 list of impaired and threatened waters is as comprehensive and accurate as possible. Please send your responses to the inquiries in this letter (including all meeting notices, draft lists, and any other information) to the address listed below.

Sincerely,

[INSERT YOUR NAME, ORGANIZATION, ADDRESS]