ENVIRONMENTAL LAW INSTITUTE The Role of Aquatic Invasive Species in State Listing of Impaired Waters and the TMDL Program: Seven Case Studies Environmental Law Institute May 2008 The Role of Aquatic Invasive Species in State Listing of Impaired Waters and the TMDL Program Seven Case Studies The Environmental Law Institute® May 2008 The Role of Aquatic Invasive Species in State Listing of Impaired Waters and the TMDL Program i Acknowledgments This report was prepared by the Environmental Law Institute, with funding from the U.S. Environmental Protection Agency under Assessment and Watershed Protection Program Grant Cooperative Agreement AW-8324340-1-0. The report was written by Adam P. Schempp and James McElfish, with additional research by Kathryn Mengerink and assistance from Michael Dudkin and Anne Davis. We gratefully acknowledge the information provided by Christine Ruf and U.S. EPA Watershed Branch staff, as well as Jason Baker, Kim Bogenschutz, Susan Braley, Chad Brown, Jeff DeShon, Coby Dolan, Naomi Feger, Dorena Goding, Kathy Hamel, Arthur Johnson, Darryl Joyner, Joe Karkoski, Ken Koch, Richard McVoy, Trinka Mount, Jeff Myers, John Navarro, John Olsen, Steven Sanford, Don Schmitz, Craig J. Wilson, and Chris O. Yoder. U.S. EPA commented on drafts of the report; however, the views expressed in the report are solely those of the Environmental Law Institute, and no Agency endorsement should be inferred. About ELI Publications— ELI publishes Research Reports that present the analysis and conclusions of the policy studies ELI undertakes to improve environmental law and policy. In addition, ELI publishes several journals and reporters—including the Environmental Law Reporter, The Environmental Forum, and the National Wetlands Newsletter—and books, which contribute to educa- tion of the profession and disseminate diverse points of view and opinions to stimulate a robust and creative exchange of ideas. Those publications, which express opinions of the authors and not necessarily those of the Institute, its Board of Directors, or funding organizations, exemplify ELI’s commitment to dialogue with all sectors. ELI welcomes sugges- tions for article and book topics and encourages the submission of draft manuscripts and book proposals. The Role of Aquatic Invasive Species in State Listing of Impaired Waters and the TMDL Program: Seven Case Studies Copyright © 2008 Environmental Law Institute®, Washington, D.C. All rights reserved. ISBN: 978-1-58576-144-9, ELI Project No. 0511-01. 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[Note: ELI Terms of Use will apply and are available on site.] (Environmental Law Institute®, The Environmental Forum®, and ELR® — The Environmental Law Reporter® are registered trademarks of the Environmental Law Institute.) ii Environmental Law Institute Table of Contents Summary of Findings Introduction . 1 The Invasive Species Problem . 1 Research . 2 Water Quality Standards. 3 Impairment of Water Quality. 5 Listing for Aquatic Invasive Species Impairment. 5 TMDLs Addressing Aquatic Invasive Species Impairment. 8 Other Aquatic Invasive Species Programs. 9 Conclusion. 10 Chart: Clean Water Act Framework. .………12 Appendix: Case Study Reports California. ………15 Florida . ………20 Iowa. ………24 Massachusetts . ………28 New York . ………32 Ohio . ………36 Washington. ………40 The Role of Aquatic Invasive Species in State Listing of Impaired Waters and the TMDL Program iii Summary of Findings Summary of Findings Introduction has recognized aquatic invasive species as a cause of impairment at some time. Five case study states There is much debate over whether and how to have listed water segments as impaired by invasive address the effects of aquatic invasive species in species on at least one of their periodic 303(d) the Clean Water Act’s Total Maximum Daily Load lists. Presently, two case study states (California 1 (TMDL) program, but regardless of one’s stance and Ohio) list waters as impaired by invasive spe- on that issue, these species have influenced and cies on their respective 303(d) lists, and four continue to affect state assessments of water qual- include such impairments in Category 4c, caused ity and the administration of TMDL programs. Many by a non-pollutant. When waters are placed on a aquatic invasive species degrade water quality by 303(d) list for impairment by a pollutant, states are changing the natural characteristics of the water, required to develop a TMDL. No case study state reducing the abundance and diversity of native has yet submitted a TMDL for invasive species to aquatic life, or impeding human uses of the water. the U.S. EPA for approval. However, four case study The Environmental Law Institute (ELI), with funding states have developed TMDLs for other causes of from and in cooperation with the U.S. Environmental impairment that address invasive species, and two Protection Agency (U.S. EPA), conducted research others have such TMDLs forthcoming. While states on seven states representing a range of geography, with a great number of invasive species tend to number of aquatic invasive species present, water have more comprehensive invasive species manage- quality standards, 303(d) listings for invasive species, ment programs apart from their Clean Water Act and aquatic invasive species management programs. programs, there is no correlation between exis- The states selected for the study were California, tence of invasive species management programs Florida, Iowa, Massachusetts, New York, Ohio, and and the state’s approach to invasive species under 2 Washington. ELI examined how the adverse effects the TMDL program. While the TMDL program has of aquatic invasive species have influenced water not yet proven to be an ideal means of addressing quality listings and TMDL development and whether aquatic invasive species, it has proven capable of the TMDL program may affect other invasive species considering this cause of impairment. programs operated by the states. ELI research indicates that the effects of aquatic The Invasive Species Problem invasive species appear in state water quality Advancements in transportation and growth in assessments. These effects may amount to a viola- domestic and international commerce have led to tion of state water quality standards and may lead the introduction of numerous species into new envi- to the identification of waters as impaired under ronments. Some species arrive intentionally as live Section 303(d) of the Clean Water Act. All seven produce, household plants or pets, or to serve a more case study states have water quality standards that utilitarian function such as preventing bank erosion could be violated by the effects of invasive species, or as a biocontrol for an invasive species. Others and several of these states have found specific des- arrive more covertly, stored in ballast tanks of ves- ignated uses impaired by invasive species in certain sels, on or among commercial goods, or even in the instances. Every case study state except Florida packaging of those goods. Many species are unable to adapt to the conditions of the new environment and do not survive. Fewer still truly thrive. However, a non-native species can cause substantial ecological 1. The term “Total Maximum Daily Load” is defined in the EPA and economic damage where conditions are favorable Clean Water Act regulations as “The sum of the individual [waste- for its proliferation. load allocations] for point sources and [load allocations] for non- point sources and natural background.” 40 C.F.R. § 130.2(i). TMDL Every state in the United States has some species in listing and program regulations are at C.F.R. § 130.7; detailed TMDL program information can be found at http://www.epa.gov/owow/ its waters that are not native to the state. The number tmdl/. of such identified species in any state varies from 2. Detailed reports of ELI’s findings for each of the case study approximately 25 in Alaska to over 450 in California, states are attached as an appendix to this document. The Role of Aquatic Invasive Species in State Listing of Impaired Waters and the TMDL Program 1 SUMMARY OF FINDINGS with a median number of non-native aquatic species Wyoming,10 can increase nutrient loading, affect the at roughly 90.3 Some non-native species have had such integrity of aquatic communities, inhibit recreational significant effects on their new surroundings that uses, and degrade visual aesthetics.11 Zebra mussels, they have caused harm to the environment, economy, present in nearly half of the states,12 have been found or human health. These species often are referred to to cause low dissolved oxygen in rivers during sum- as “invasive species.”4 They adapt well to their new mer months on account of their respiratory activity, environment, spreading unchecked due to a lack of the decomposition of their waste products, and the natural predators or other environmental controls. decay of dead mussels.13 Additionally, the phosphate They often cause biological and economic harm by and ammonia that zebra mussels excrete increases out-competing native species, shifting the balance in the levels of both of these compounds in the water.14 the local ecology, and interfering with human use of In Saginaw Bay and Lake Erie, zebra and quagga water resources. Zebra mussels alone have cost the mussels even have been shown to promote and main- Great Lakes region approximately $3 billion over the tain blooms of potentially toxic blue-green algae, last 10 years just to mitigate the damage that they Microcystis, by consuming competing algal strains, have caused by clogging water intake pipes, fouling spitting the Microcystis back into the water, and beaches, sinking navigation buoys, and creating simi- fertilizing the Microcystis with phosphate and ammo- lar nuisances.5 nia.15 Since many aquatic invasive species have no natural predators and easily move or are inadvertently Invasive species can have direct and substantial transported between bodies of water, these water effects on water quality.