Executive Summary

Of a Report By

Chesapeake Bay Foundation

Virginia Office

October 1996

{1}Federal law requires all states to periodically report to the Environmental Protection Agency (EPA) on the water quality of their rivers, lakes and streams and provide EPA with a listing of polluted waters. Virginia has recently prepared two reports for 1996 and boasts that only 5 percent of the Commonwealth's rivers are polluted. Under closer inspection, this information is found to be extremely misleading due to a number of serious gaps and flaws within Virginia's water quality monitoring program and its methods of data reporting and evaluation.

{2}When Virginia states that only 5 percent of the waters it monitors fail to meet water quality standards, it is misleading the public by concluding that Virginia's waters are in great shape. Such a conclusion ignores the fact that compliance with a water quality standard is but one of may indices of the health of a waterbody. The absence of underwater grasses; the level of polluting nutrients; the presence of toxics in fish tissue or sediments B each of these is also an indicator of water quality conditions.

{3}When we consider all the evidence available, the Chesapeake Bay Foundation (CBF) concludes that many of Virginia's waters are still at risk. In fact, according to Virginia's own evidence, 65 percent of the river miles monitored fail to fully support the Clean Water Act's goals of Afishable@ and Aswimmable@ waters. These waters display exceedences of water quality standards; biological impairment; metal or organic contamination in fish tissue or sediment; and/or fish consumption bans or advisories. (See illustration)

{4}This critique by CBF shows that Virginia's waters are not nearly as clean as the state would lead us to believe and offers specific recommendations for ways the Commonwealth can ensure the health of our waters through aggressive protection mechanisms.

Background

{5}The Clean Water Act requires each state to do the following:

• Prepare a biennial report, called the 305(b) report, containing an assessment of the water quality of all navigable waters in the state. Virginia uses monitoring data (derived from water sampling, fish tissue and sediment analyses, and biological surveys) and evaluative findings (drawn from agency staff's visual observation of water segments) to determine whether its waters fully support, partially support, do not support, or threaten achievement of the Clean Water Act's fishable and swimmable goals.

• Analyze the extent to which the state has achieved pollution control and water quality goals. If the goals are not met, the state must develop recommendations for achieving those goals, estimating the environmental impact, economic and social costs, and anticipated dates of achievement.

• Prioritize the state's most polluted waters in a list called the 303(d) list. All waters identified in the 305(b) report as not meeting the fishable and swimmable goals of the Clean Water Act should be included (i.e., those described as partially supporting, not supporting, or threatened).

{6}Virginia's draft 1996 305(b) report states that Virginia has monitored or evaluated over 31,958 river miles in Virginia. The report concludes that 28, 122 miles are fully supporting, 2,016 are either partially supporting or not supporting and 1,820 are threatened. In its 1996 draft 303(d) list, Virginia cites only 5 percent of monitored Virginia river miles as polluted.

• Virginia has very little in-stream data on toxics.

• Virginia's 305(b) reported data reflects consistent monitoring for only four very basic pollution parameters (and this occurs for only 40 percent of the state's river miles).

• Virginia does not include in the 303(d) list of Aimpaired@ waters those rivers polluted by substances for which there are no water quality standards; this includes many toxics.

• Actual monitoring occurs on only 60 percent of Virginia's river miles.

Waters at Risk: Problems with Pollution

{8}Specific examples of instances where Virginia's own data indicate that many of the state's waters remain polluted include:

• 65 percent of the river waterbodies monitored by Virginia contain at least one wtaer segment that is classified as not supporting, partially supporting or threatened.

• Between 1994 and 1996, the number of river miles identified by the Department of Environmental Quality (DEQ) as Aimpaired@ increased by 669 miles, or 85 percent.

• Over half of the Elizabeth River monitoring stations sampled by Old Dominion University exceeded the Virginia Water Quality Standard for tributyltin (TBT), an extremely toxic anti-fouling marine paint used to prevent growth on boat hulls.

• The Virginia Department of Health has condemned 95,768 acres of productive shellfishing areas, and seasonally condemned an additional 1,194 acres.

• 53 percent of the acres of lakes monitored for toxics were found to be impacted by metals, pesticides, or organics.

• Toxic residues in fish tissue exceeded certain EPA human health risk values at every one of Virginia's twelve fish tissue monitoring stations.

• 80 percent of watersheds monitored for nonpoint source pollution reported total nitrogen or total phosphorus levels that were classified as fair, poor or severe.

Problems with Virginia's Water Quality Monitoring Program

• Despite the Clean Water Act's command for states to report on the quality of all its navigable waters, between 1993 and 1995 Virginia only monitored 60 percent of its river miles; it evaluated an additional 5 percent. (In contrast, North Carolina reports monitoring and evaluating 92 percent of its river miles while New York reports 100 percent.

• The inadequacies of Virginia's monitoring program prevent Virginia from addressing one of Congress' most critical instructions to states: to estimate the date of expected achievement of water quality objectives, the corrective actions necessary, and the associated costs, benefits, and environmental impacts of achieving Clean Water Act goals.

• Virginia claims to have monitored over 29,000 river miles primarily for four basic parameters: pH, temperature, dissolved oxygen, and fecal coliform bacteria. In fact, Virginia's 305(b) reported data indicates only approximately 40 percent of Virginia's rivers were actually monitored for all four of these very basic parameters; the 305(b) data indicates 20 percent are monitored for fewer than the four parameters; and 40 percent go entirely unmonitored.

Specific Problems Relating to Toxics

{9}The 305(b) report acknowledges that Virginia has Avery little water column data on toxics@; the report adds that Virginia has no current metals data from in-stream monitoring stations. The ramifications of this toxics data gap are significant. For a river to be classified as impaired due to toxic contamination under Virginia's existing system, there must be actual in-stream toxics data and a violation of an existing water quality standard. When Virginia claims that only 5 percent of its monitored river miles violate water quality standards, it ignores the fact that there are often no violations because there is no in-stream data.

{10}To make matters worse, Virginia recently rescinded the existing Toxics Management Regulation and has announced that the Department of Environmental Quality (DEQ) will no longer prepare an annual Toxics Release Inventory report. The state also has proposed to make the standard for the highly toxic chemical tributyltin (TBT) less restrictive and to eliminate the ban on halogen disinfection in waters containing endangered species. Finally, the continued absence of a state-owned mobile lab prevents Virginia from independently evaluating the toxicity of discharger effluents.

Problems with Virginia's Data Reporting and Evaluation

{11}In addition to the inadequacies and incompleteness of Virginia's water quality monitoring program, problems exist with the ways Virginia evaluates the data it collects. Some examples include:

• Virginia's 1996 report uses a different, more complex statistical analysis to classify its waters than it has used in previous years. The result is that some waters previously classified as not supporting are now classified as fully supporting. These changes in classification in no way reflect an improvement in water quality; the report simply changes the criteria for designating a body of water as polluted.

• An unknown number of river miles, represented by 72 individual monitoring stations, meet Virginia's criteria for not supporting or partially supporting, but are inexplicably not classified as impaired. In addition, Virginia recently added several river segments to its impaired waters list, correcting an error which arose from a Acomputer glitch.@

• Virginia considers many waters that are condemned for shellfishing to be fully supporting of the Clean Water Act's fishable goal because the shellfish can be harvested and then relayed to another location for cleansing before being sold.

• Although Section 303(d) of the Clean Water Act clearly requires all states to determine the maximum pollutant loads that a waterbody can handle, Virginia has yet to adopt total maximum daily loads (TMDLs) for any impaired waters in the state.

• Virginia redetermines the location and length of impaired water segments each reporting period; it does not consistently define the water segments as specific locations from one year to the next. Therefore, it is impossible to get a clear reading on the long term health of these rivers.

Conclusions and Recommendations for Improving Virginia's Waters

{12}CBF's analysis of the 305(b) report and the 303(d) list, as presented in this critique, establishes the need for new, aggressive measures to insure the protection of Virginia's waters. In order to address many of the problems noted in this critique, CBF submits the following recommendations:

• Comprehensively revamp Virginia's monitoring, evaluation and toxics programs: a) increase the budgetary commitment to monitoring, evaluation and toxics programs; b) develop and implement consistent site and monitoring techniques to insure reliability and to determine trends; c) expand the number of river miles monitored; d) insure the monitoring of all four conventional pollutants at all stations; e) begin metal and other toxic chemical water quality monitoring; f) reinstate the toxics mobile lab, with a commitment to one at each regional office within three years; g) increase DEQ staffing for monitoring, evaluation, and toxics programs, including one person per region with responsibility for the 305(b) reporting requirements. Virginia should establish a three year plan to substantially improve and expand its monitoring, evaluation, and toxics programs.

• Develop and incorporate in the 305(b) report a long term strategy for achieving the Clean Water Act Afishable and swimmable@ goals for all Virginia waters. This is a DEQ responsibility under the mandate of the Clean Water Act. The strategy should include specific time frames, measurable goals, and estimated funding needs.

• Establish a Citizens Right to Know program which: a) creates a Citizen's Liaison Office within DEQ which provides citizen access to information on toxics, toxic discharges, polluted waters, etc., in Virginia; b) requires DEQ to prepare summaries of all industrial toxics use reduction plans and annual toxics use reports; c) establishes an A800" number for the Citizen's Liaison Office; d) requires industry to report any spill of a toxic substance not only to DEQ but also to local newspapers and adjacent landowners; e) requires the posting of all waters that contain shellfish bed contamination, fishing bands or advisories; g) reinstates funds for creation and publication of Virginia's Toxic Release Inventory Report. Virginia's Citizen's Right to Know program should be established in 1997 through legislation, regulation, or executive order as necessary.

• Alter the current preparation process for the 305(b) report and 303(d) list so that these documents are either prepared by or reviewed by independent academic scientists at Virginia universities. Virginia should insure thorough and objective preparation of or peer review of any conclusions on the quality of its waters. Budget amendments to provide for this should be adopted in parallel with the due dates of the reports.

• Reconcile inconsistencies within and between the 305(b) report and the 303(d) list so that all waters with pollution problems are recognized and properly identified. Virginia should insure that fish tissue test results, nutrient enrichment problems, and all other data are incorporated in determining the quality of its waters. This includes reinstituting use of information such as losses of underwater grasses and zero exceedences of the fecal coliform water quality standard for a Afully supporting@ designation. This is a DEQ responsibility that it should correct immediately.

• All industries located on toxic impacted waters should develop and implement a toxics use reduction plan for their facilities as a condition of issuance or reissuance of a state discharge permit. This should occur prior to the next listing of impaired waters. The Department of Environmental Quality should identify the facilities contributing to toxic contamination in impaired waters and target those facilities as a high priority for development of TUR plans. Virginia should immediately institute this recommendation through legislation, regulations, or administrative directive as necessary.

• Require all industries to submit to the Department of Environmental Quality (DEQ) an annual report disclosing the amount of toxics used, produced, and/ or released as a condition of issuance or reissuance of a discharge permit. Virginia should establish this reporting requirement beginning in 1997.

• Adopt Total Maximum Daily Loads (TMDLs) for impacted rivers and reopen permits for dischargers on the impacted rivers for review and development of new permit limits consistent with the TMDL. This is long overdue. Virginia should accelerate any actions currently being taken on the adoption of TMDLs and begin the reopening and reviewing of discharge permits in 1997.

October 1996

For a complete copy of this report, contact CBF's Virginia Office:

Chesapeake Bay Foundation

1001 E. Main Street, Suite 710

Richmond, Virginia 23219

(804) 780-1392