Great Lakes Water Quality: Current Issues

Claudia Copeland

Specialist in Environmental Policy
Environment and Natural Resources Policy Division

May 17, 1996

96-442 ENR

The Great Lakes Resource

The Great Lakes are a unique national and global resource, containing 20% of the earth's surface fresh water and supporting within the watershed 38 million people, 25% of the U.S. and Canadian populations. It provides resources to support millions of jobs, including tourism and about $4 billion per year each for the fishery and boating industries. It sustains nearly 11% of the total employment and 15% of the manufacturing employment for the United States and Canada.

Part of the unique nature of the Great Lakes stems from the nearly closed nature of the system. Lakes Superior, Michigan, and Huron have especially long water retention times, making them particularly susceptible to pollutant buildup. On the average, water that enters Lake Superior takes 182 years to be flushed out again, compared with 106 years for Lake Michigan, and just 2.7 years for Lake Erie.

Inevitably, conflicts have arisen over use of the Great Lakes, and these conflicts have impacted the quality of the resource. Problems have been, and still are, diverse, ranging from eutrophication (excessive biological productivity due to nutrient enrichment) to toxic substances. In the most recent assessment of water quality, states and EPA found that 97% of shoreline waters do not fully support designated uses overall due to problems of persistent toxic pollutants. Fish consumption advisories have been posted in all of the lakes. Aquatic life impacts include toxic pollutant burden in birds, habitat degradation and destruction, and competition by nonnative species such as the zebra mussel and sea lamprey.(l)

According to analyses by Canadian and U.S. officials, all of the lakes show substantial improvement compared to their conditions 30 years ago. Overall, however, the health of the Great Lakes ecosystem is variable and conditions are rated as mixed and unstable. Concentrations of nutrients and most toxic contaminants are decreasing, but substances that bioaccumulate to a high degree continue to cause problems. Aquatic habitat and wetlands were judged to be poor overall because of losses and degradation, in quality as well as quantity.(2)

Management of the Great Lakes

Management of the Great Lakes has a long history of international cooperation, dating to the establishment of the International Joint Commission (IJC) in 1909 and its designation as the vehicle for resolving disputes over the shared boundary waters. This cooperation led to the signing of a U.S.-Canadian Great Lakes Water Quality Agreement in 1972, followed by a more comprehensive agreement in 1978 and amendments in 1987. The 1972 agreement focused largely on controlling severe oxygen depletion due to excess nutrient loadings (especially phosphorus), algae growth and decay. Efforts to correct this problem have been successful but are continuing. Since 1970, phosphorus detergent restrictions, municipal sewage treatment plant construction and upgrades, and agricultural practices that reduce runoff have cut the annual phosphorus load into the Great Lakes in half.

The 1978 agreement and 1987 amendments address problems that were not considered by the original agreement. Scientists recognized that many areas of the lakes were heavily contaminated with PCBs, heavy metals, and other chemicals and that important sources of pollutants to the lakes had been overlooked including airborne toxic substances, contaminated groundwater, and polluted sediments. The agreement now focuses on a commitment to "virtually eliminate" the release of persistent toxic pollutants into the Great Lakes ecosystem to protect human and environmental health. The IJC has identified 42 Areas of Concern, sites where biological communities are affected by contaminants. The eight Great Lakes states and the province of Ontario agreed in 1985 to prepare Remedial Action Plans (RAPs) for each site aimed at restoring beneficial uses and environmental integrity. Based on preliminary costs estimates, it is apparent that tens of billions of dollars from both private and public sources will be required for implementation of the RAPs.

Institutionally, achieving consensus for managing the Great Lakes ecosystem is complex, because different components of the basin watershed are administered by different agencies and levels of government. The IJC has pressed the two governments to adopt specific timetables for phasing out persistent toxic substances, such as many chlorine-containing compounds, but the IJC has no regulatory or enforcement authority and is permitted only to advise and recommend actions to the United States and Canada.

EPA's Great Lakes Water Quality Guidance

The Great Lakes states agreed in 1989 to work with the Environmental Protection Agency (EPA) to develop uniform pollution limits to protect the lakes and implement the Clean Water Act (CWA). The goal was to set limits on a coordinated basis that would prevent further buildup of toxic pollutants in fish and wildlife. In the Great Lakes Critical Programs Act of 1990 (P.L.101-596, which amended the CWA), Congress endorsed the process of establishing coordinated pollutant limits and specified a number of deadlines for the process.

In March 1995s EPA issued final water quality guidance for the Great Lakes system, known as the Great Lakes Water Quality Initiative (GLI).(3) The guidance is required under section 118 of the CWA and was first proposed in 1993. Although classified as guidance, it is a regulation, one of the most complex ever issued by EPA. (The guidance itself is not enforceable, but it becomes enforceable through amended state water quality standards.) Under the CWA, the Great Lakes states have two years to implement this guidance, or EPA will promulgate standards for them.

What the Guidance Provides, What It Requires

The guidance establishes water quality criteria for 29 pollutants, with a particular focus on persistent bioaccumulative toxics (that is, tend to occur in higher concentration in aquatic biota than in open waters). The criteria are intended to protect human health, aquatic life, and wildlife and include the first-ever EPA wildlife criteria to protect birds and mammals from long-term exposure to mercury, DDT, PCBs, and dioxin. The guidance also includes implementation procedures, methodologies to develop criteria for additional pollutants, and anti-degradation provisions (procedures to ensure that once water quality goals are attained, additional pollution will not be allowed to lessen or degrade water quality).

The Great Lakes states are required to revise their water quality management programs and water quality standards consistent with the guidance. State water quality standards are the basis for establishing discharge limits in permits issued to industries and municipalities, making it likely that dischargers throughout the basin will be subject to more stringent control requirements in the future.

The primary purpose of the guidance is to provide a consistent level of protection for people and wildlife who may be exposed to toxic pollutants from the lakes. Using three case study analyses,(4) EPA said that benefits to the basin's economy would include: improvements in human health, especially for sport anglers and those who eat fish due to economic need; improvements in recreational fishing; improvements in the quality of waterbased recreation; and an increase in the commercial fishery harvest. Economic benefits to the three studied communities range from $0.3 million to $5.9 million each year, with a midpoint of $2.8 million.

Controversies

EPA attempted to respond to many criticisms of the 1993 draft guidance, and Administrator Carol Browner said that a cost-benefit analysis concluded that the benefits of the final guidance outweigh the price tag. Still, controversies persist.

Cost. Cost of implementation is the major concern of industry, states, and cities. Based on the 1993 proposal, industry groups, led by the Great Lakes Water Quality Coalition, and others estimated costs to the region ranging from $2.2 billion to $5 billion per year, with significant impact on regional economic growth and major loss of employment. EPA's estimates of the 1993 draft differed greatly from those of industry and state groups: from $80 million to $500 million per year. The final guidance reflects significant changes from the 1993 proposal which will reduce the annual implementation costs to a range of $60 million to $380 million, according to EPA. The agency believes the actual costs will be around $100 million per year. The wide range of annualized costs, according to EPA, will depend upon how states choose to implement the guidance.

Some of the cost controversy subsided earlier this year after release of a study that had been commissioned by the Council of Great Lakes Governors and conducted by DRI/McGraw Hill (DRI) which predicted that the costs of the guidance will be far lower than previous industry estimates and are likely to be commensurate with EPA's projections. Nonetheless, DRI concluded that elements of the guidance are overly detailed and excessively restrictive. The DRI analysis generally approves of flexibility included by EPA in the final guidance, but many analysts caution that no one will know the actual costs until the guidance is implemented.

Precedent for other water quality programs. Industries outside the region fear that the guidance will be a precedent for similar criteria and methods elsewhere. Concerns include expansion of water quality criteria (more stringent criteria; new criteria to protect wildlife, sediments, or other non-chemical measures) and whether EPA may compel industry nationwide to meet human health and wildlife criteria based on data from the Great Lakes basin (based, for example, on native Great Lakes fish) that are not suitable elsewhere and will be costly to implement.

EPA oversight. Great Lakes governors initially were strong supporters and active participants in the GLI process. However, following issuance of the guidance in 1995, only the governors of Indiana and Minnesota fully supported the rule; the other six governors reserved judgment on the Initiative, at least for now. Most of these states contended that EPA had underestimated the costs and overstepped its authority by issuing regulations. Some governors fear that EPA will use the Initiative as a club to shape state water quality regulations, rather than as a means to ensure that regulations are consistent and protective.

EPA officials say that the final guidance improves on the 1993 draft by providing states with great flexibility to tailor solutions to local conditions that are environmentally protective yet cost-effective (although this leads to difficulty in making precise cost estimates). For example, a state may choose to improve water quality by reducing air emissions or cleaning up contaminated sediments, rather than imposing additional requirements on wastewater dischargers. Likewise, a state may utilize site-specific criteria where conditions differ from the rest of the lakes.

Science questions. The guidance breaks new regulatory ground with its treatment of uncertainty, bioaccumulation, and the inclusion of water quality standards to protect wildlife. Thus, while EPA says the guidance provides a scientifically sound basis for regulation, the science itself has been controversial. For example, the guidance specifies different methodologies to evaluate available scientific data. For pollutants for which data are abundant (called Tier 1), criteria would be generated using current, scientifically established methods for calculation. For pollutants for which data are extremely limited, yet controls are deemed necessary because of the substances' presence in the lakes, (called Tier 2), criteria will be developed using alternative methodologies with added safety factors that intentionally produce more conservative criteria. Critics say these criteria will be overprotective and unnecessarily expensive.

Calculation of water quality criteria to account for chemicals that bioaccumulate is a well known practice. The guidance incorporates a factor, the food chain multiplier (FCM), to account for the tendency of some compounds to bioaccumulate at greater rates in organisms higher in the food chain. In dealing with a class of compounds that accumulate in fish at very high levels, called bioaccumulative chemicals of concern (BCCs), the guidance also uses the FCM to calculate criteria more stringent than for other compounds. The guidance specifically focuses on 22 of the BCCs (for example, DDT, dieldrin, PCBs and mercury). Researchers believe that long-term exposure to these chemicals increases the risk of cancer, birth defects, genetic mutations, and reproductive problems. But because adequate field data are lacking to derive water quality criteria for the BCCs, the guidance uses bioaccumulation as a surrogate measure to determine the potential for toxic effects. Again, critics say the results are overprotective.

Environmentalists' criticisms. Many environmentalists say that while the guidance is a step forward in eliminating toxic pollution from the Great Lakes, the final rule is weaker than the proposal in terms of protecting wildlife, controlling toxic metal discharges, and encouraging pollution prevention. They are critical that the guidance does not call for zero discharge of bioaccumulative toxics, which is already reflected in the Great Lakes Water Quality Agreement and the CWA.

Other interest groups join environmentalists in criticizing the guidance for giving inadequate attention to diffuse sources of pollution (i.e., runoff from farm lands, city streets and storm sewers, as well as atmospheric deposition). According to industry's view, the rule focuses on the wrong target, because industrial discharges in particular and municipalities are already highly regulated. Continuing problems of diffuse sources and contaminated sediments are not directly addressed in the guidance. EPA officials say it is not the intention of the guidance to focus solely on traditional point sources. The ambient water criteria contained in the guidance set a lakes-wide goal of controlling bioaccumulative chemicals, and EPA expects that states will adopt broad-based approaches to achieving the goal through point source limits, nonpoint source management practices, sediment cleanup, or air emissions limits.

Status of the Issue and Congressional Response

States are in the midst of their 2-year implementation of the guidance. Legal challenges were filed, but lawsuits do not delay implementation deadlines.

Continuing criticism has led so far to two legislative responses from Congress. First, H.R. 961, the CWA reauthorization bill passed by the House in May 1995, includes a provision specifying that states' water quality standards, policies, and procedures shall be considered consistent with the EPA guidance if based on scientifically defensible judgements which provide an overall level of protection comparable to that in the guidance. This provision was a compromise between those who wanted to make compliance entirely voluntary (that is, states may but are not required to follow the guidance) and those who wanted to retain current law which requires compliance by states. Considering controversies that arose over this issue during House debate (some Members from Great Lakes states favored retaining current law, while others did not), the legislative outcome in connection with reauthorization is uncertain. The Senate has not yet acted on H.R. 961 and has no schedule for reauthorizing the Clean Water Act.

Second, the House also addressed the guidance by including a legislative rider to FY1996 appropriations for EPA barring implementation of the GLI for this year or until the CWA is reauthorized. However, when full-year funding for EPA was finally enacted April 26, 1996 (P.L. 104-137), the bill did not include a legislative rider concerning the Great Lakes water quality guidance.

Other Issues

While implementation of the GLI has been the focus of most attention, other related issues exist. One is when and how EPA and states will address diffuse sources of toxic pollutants that are believed to contribute a greater portion of toxic loadings to the lakes than comes from point sources. The CWA does not require control programs for nonpoint sources like those for point sources, and the process of translating water quality criteria and standards into effective measures for controlling runoff from farms or city streets is complex. EPA hopes to follow the guidance with a toxics reduction program specifically focused on nonpoint sources and is sponsoring research to address the significance of point versus diffuse sources of pollution. It is unclear when specific steps will be proposed.

Another issue is how to protect water quality in those lakes, especially Lake Superior, where overall conditions are relatively good today. In 1991, the IJC recommended that Lake Superior be designated as a demonstration area where point source discharges of persistent toxic substances would be banned, consistent with the "virtual elimination" goal of the Great Lakes Water Quality Agreement. Environmental groups have pressed to designate the lake as an Outstanding National Resource Water under provisions of the CWA to recognize waters of exceptional ecological and recreational significance. This designation would prohibit new or increased loadings of toxics but would not directly affect existing loadings. At issue is how such broader goals for the lakes will be implemented in near and long-term water quality management decisions.

Endnotes

1. U.S. Environmental Protection Agency. Office of Water. National Water Quality Inventory, 1994 Report to Congress. EPA841-R-95-005. December 1995. pp. 314-320.

2. Environment Canada and U.S. Environmental Protection Agency. State of the Great Lakes 1996, report prepared for the State of the Lakes Ecosystem Conference 1994. Available on the Internet at http://www.cciw.ca/glimr/data/sogl-final-report/intro.html#ExecSumm3. "Final Water Quality Guidance for the Great Lakes System. Federal Register, Mar. 23, 1995, vol. 60, no. 56, p. 15365-15424.

4. The case studies were of these three regions: the Fox River near Green Bay, Wisconsin; the Saginaw River near Bay City, Michigan; and the Black River near Cleveland, Ohio.