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Chapter 2 - Legal Authority
The Clean Water Act (Federal Water Pollution Control Act of 1972, Clean Water Act of 1977, and the Water Quality Act of 1987) directs States to develop criteria based on biological assessements of natural ecosystems. Sections 303 and 304 provide the basis for development of biological criteria.
A.
SECTION 303
Under Section 303(c) of the Clean Water Act, States are required to
have water quality standards that consist of uses, criteria and antidegradation.
States are to review these standards every three years and to revise them
as needed.
Section 303(c)(2)(B) enacted in 1987, requires States to adopt numeric criteria for toxic pollutants for which EPA has published 304(a)(1) criteria; such pollutants interfere with, or may be expected to interfere with, attainment of designated uses. The section further requires that, where numeric 304(a) criteria are not available, States should adopt criteria based on biological assessment and monitoring methods, consistent with informaiton published by EPA under 304(a)(8).
These specific directives do not serve to restrict the use of biological criteria in other settings where they may be helpful. Accordingly, this guidance document provides assistance in implementing various sections of the Act, not just 303(c)(2)(B).
B.
SECTION 304
Section 304(a)(8) directs EPA to develop and publish information on
methods for establishing and measuring water quality criteria for toxic
pollutants on bases other than pollutant-by-pollutant, including biological
monitoring and assessment methods which assess:
- the effects of pollutants on aquatic community components ("...plankton, fish, shellfish, wildlife, plant life...") and community attributes ("...biological community diversity, productivity, and stability...");
- factors necessary "...to restore and maintain the chemical, physical, and biological integrity of all navigable waters..." for "...the protection of shellfish, fish, and wildlife for classes and categories of receiving waters..."
- appropriate "...methods for establishing and measuring water quality criteria for toxic pollutants on other bases than pollutant-by-pollutant criteria, including biological monitoring and assessment methods."
C.
POTENTIAL APPLICATIONS UNDER THE ACT
Development and use of biological criteria will help States to meet
other requirements of the Act including:
- setting planning and management priorities for waterbodies most in need of controls [Sec. 303(d)];
- determining impacts from non-point sources [i.e., Section 304(f) "(1) guidelines for identifying and evaluating the nature and extent of nonpoint sources of pollutants, and (2) processes, procedures, and methods to control pollution..."].
- developing lists of waters unable to support "balanced population(s) of shellfish, fish and wildlife..." [(304(l)];
- biennial reports on the extent to which waters support balanced biological communities, [Sec. 305(b)];
- assessment of lake trophic status and trends, [Sec. 314];
- lists of waters that cannot attain designated uses without non-point source controls, [Sec. 319];
- development of management plans and conducting monitoring in estuaries of national significance [Sec. 320];
- issuing permits for ocean discharges and monitoring ecological effects [Sec. 403(c) and 301(h)(3)];
- determination of acceptable sites for disposal of dredge and fill material [Sec. 404];
D.
POTENTIAL APPLICATIONS UNDER OTHER LEGISLATION
Several legislative acts require an assessment of risk to the environment
(including resident aquatic communities), to determine the need for regulatory
action. Biological criteria can be used in this context to support EPA
assessments under:
- Toxic Substances Control Act (TSCA) of 1976
- Resource and Conservation and Recovery Act (RCRA), * Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA),
- Superfund Amendments and Reauthorization Act of 1986 (SARA), * Federal Insecticide, Fungicide and Rodenticide Act (FIFRA); * National Environmental Policy Act (NEPA);
- Federal Lands Policy and Management Act (FLPMA).
- The Fish and Wildlife Conservation Act of 1980
- Marine Protection, Research and Sanctuaries Act
- Coastal Zone Management Act
- Wild and Scenic Rivers Act
- Fish and Wildlife Coordination Act, as Amended in 1965
A summary of the applicability of these Acts for assessing ecological impairments may be found in Risk Assessement Guidance for Superfund-Environmental Evaluation Maunual (Interim Final) 1989.
Other federal and State agencies can benefit from the use of biological criteria to determine the biological integrity of surface waters within their jurisdiction and for assessments of the effects of specific practices on surface water quality. Agencies that could benefit include:
- Department of the Interior (U.S. Fish and Wildlife Service, U.S. Geologic Survey, Bureau of Mines and Reclamation, Bureau of Indian Affairs, Bureau of Land Management, and National Park Service),
- Department of Commerce (National Oceanic and Atmospheric Administration, National Marine Fisheries Service),
- Department of Transportation (Federal Highway Administration),
- Department of Agriculture (U.S. Forest Service, Soil Conservation Service)
- Department of Defense,
- Department of Energy,
- Army Corps of Engineers,
- Tennessee Valley Authority