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The Department of Environmental Protection Did Not Submit Reports on Surface Water Quality Data or Make These Data Available Online.

Audit finds that DEP is not providing EPA and the public with the information necessary to determine if watersheds are safe.

Table of Contents

Overview

At the time of our audit, the Department of Environmental Protection (DEP) had not filed a 2018 Integrated List of Waters Report with the United States Environmental Protection Agency (EPA), which was originally due April 1, 2018. The Integrated List of Waters Report assesses whether surface waters across the Commonwealth were impaired or were available for their designated uses. Also, DEP’s 2016 Integrated List of Waters Report, originally due in April 2016, was not finalized until December 2019 or approved by EPA until January 2020.

Additionally, DEP did not make available, through either its Integrated List of Waters Report or the Water Quality Exchange on EPA’s website, water quality testing data it gathered from 2015 onward.

As a result, DEP is not providing EPA and the public with the information necessary to determine whether Massachusetts watersheds are impaired or are safe for their designated uses.

Authoritative Guidance

Section 305(b) of the Clean Water Act (CWA) requires each state to report to EPA, every two years, a description of its water quality, an analysis of the status of its waters for their designated uses, and the extent to which pollutants need to be eliminated so that water is suitable for its designated use.

Also every two years, Section 303(d) of the CWA requires each state to identify water bodies that are impaired by pollutants and report this information to EPA. For each water body identified, the state must determine the total maximum daily load of a pollutant that may enter a water body without violating water quality standards for the water’s intended use.

States are required to submit the above information in their Integrated Reports.

Additionally, Section 106 of the CWA details water monitoring requirements that the states must meet in order to receive grant funding from EPA for their water monitoring and assessment programs. Specifically, Section 106(e) of the CWA requires states to annually update water quality information related to water bodies that was used to fulfill the Integrated Report requirements of Section 305(b) of the CWA.

Reasons for Issue

DEP officials told us that the agency could not conduct timely quality control in order to file reports on time or publish data because it sometimes experienced delays in obtaining results from its laboratory to review and validate. They also stated that the manual processes of using hard copies to record data and accurately report them in the computer system resulted in slow processing of water quality data after results were received. Also, a key quality assurance position at DEP was left unfilled for approximately four years (from June 2015 through March 2019), which affected the completion of reports and publication of data.

Additionally, DEP officials told us that delays in reporting updated water quality data were caused in part by DEP’s implementation of a new database to report surface water quality data, which is still in process.

Recommendations

  1. DEP should reevaluate its data collection and processing methods to reduce time taken in performing manual processes, particularly data entry.
  2. DEP should work to validate surface water quality information, use the information to compile the Integrated List of Waters Report and submit it to EPA on time, and upload the data within required timeframes, even in periods of employee turnover and changes in information systems.
  3. DEP should consider using sources other than state-run laboratory services to test data samples.
  4. DEP should consider using information from external sources that has been collected and reported in a valid manner.
  5. DEP should finish implementing its new surface water quality database.

Auditee’s Response

The finding is inaccurate as written, as MassDEP does complete and submit all required reports of water quality data to EPA and makes the validated data available online. As detailed below, MassDEP’s efforts to ensure that data are fully validated in accordance with federal regulations and reports are scientifically accurate and useful has resulted in reporting delays. Accordingly, like many other states, Massachusetts has not met the Clean Water Act (“CWA”) deadlines for reporting, a fact that is well known to MassDEP, stakeholders who use water quality data, and EPA. Consistent with EPA’s guidance, MassDEP has clearly communicated to EPA its intent to combine the 2018 Integrated Report (IR) with the 2020 Integrated Report to re-align with the two-year reporting schedule as set forth in the statute. . . .

Ensuring that our submission of Integrated Reports (“IRs”) to EPA under CWA Sections 303(d) and 305(b) is accomplished in a timely and efficient manner while not compromising our obligations to provide the public with scientifically sound, accurate, and useful information on the status of the Commonwealth’s waters has been and continues to be a high priority of MassDEP Watershed Planning Program (WPP). Last September, MassDEP established a plan, entitled Plan to Eliminate WPP’s Data Validation Backlog (2016–2019 Water Quality Data) (“Plan”), which sets forth the steps MassDEP is taking and an estimated schedule for eliminating WPP’s data validation backlog for water quality data. MassDEP’s goal is to complete data validation for all 2017 and 2018 datasets by June 2020, and for 2019 data by Fall 2020. WPP is currently on track to meet these timelines. The Auditor’s recommendations are generally consistent with the Plan and MassDEP will consider whether those recommendations make additional updates to the Plan appropriate.

Many factors contributed to MassDEP’s delay in finalizing its 2016 IR:

  • Following the completion of the 2014 reporting cycle, MassDEP made a policy decision in response to EPA Region 1 and stakeholder input to utilize available data to complete comprehensive statewide (i.e., all watersheds) assessments of the shellfish harvesting, primary and secondary contact recreation, and aesthetics uses, as well as the assessments of the aquatic life use for 15 watersheds for the 2016 reporting cycle. This represented the largest scope of assessments ever undertaken by MassDEP in any previous reporting cycle, and as a result took longer to complete.
  • At the same time, MassDEP made substantial improvements to specific processes by which water body assessment decisions are made. Each of these improvements required a significant investment of human resources. Improvements include:
  • Compliance with a new EPA mandate to transition to its new Assessment Total Maximum Daily Load (TMDL) Tracking and Implementation System (ATTAINS) database for the 2016 assessment and listing cycle. This required MassDEP to reassign its WPP staff from other duties to assist with the complete transfer of all of MassDEP’s assessment and listing decisions from the Assessment Database (ADB) to ATTAINS.
  • Commencing with the 2016 IR, MassDEP vastly expanded the amount of data it relies on to include water quality data collected by outside groups (e.g., quality-assured volunteer monitoring data) rather than rely solely on WPP-collected data. Extensive reviews of non-WPP data, including a significant volume of new data submitted during the public comment period, were conducted by WPP staff to determine data validity and potential usefulness of these data for 2016 IR decisions.
  • MassDEP undertook the first major revision to the Massachusetts Consolidated Assessment and Listing Methodology (CALM) Guidance Manual. The CALM describes the procedures by which MassDEP analyzes data and makes assessment decisions. The 2016 CALM provided for the documentation and submittal to MassDEP of external data from nongovernmental sources that sought to have their data considered for use in assessing and listing waters, amongst other things.
  • Due to the number of use assessments conducted and Category 5 de-listings proposed for the 2016 IR, the review and approval process was prolonged. The draft 2016 IR was submitted for public review and comment in August 2017 (with an extended 60-day comment period instead of 30 days). MassDEP received 16 significant public comment letter submittals (many including submitted data to support the comments), as well as substantive comments from EPA on the proposed de-listings (from Category 5 requiring a TMDL to another category). Because the listing and de-listing process takes into consideration multiple lines of evidence that lend themselves to differing conclusions, MassDEP needed to devote significant resources to respond to each of the comments, and it worked closely with EPA in the process.
  • Furthermore, during the review process, there were staffing changes at EPA that contributed to a delay in completing the review process. Based on submitted comments, MassDEP made changes to the assessment decisions and ATTAINS where appropriate and generated the Response to Comments (RTC) document. MassDEP worked closely with EPA for an extended period of time to resolve its concerns and incorporate the final decisions into the RTC.

On balance, MassDEP concluded that, while we seek to complete the reports as expeditiously as possible, the extra time we took on the 2016 IR was important to providing the public with scientifically sound and accurate information on the status of the Commonwealth’s waters. MassDEP’s own review of the factors leading to delays in the 2016 IR resulted in the September 2019 Plan, which MassDEP expects will resolve the data backlog on the schedule set out in the Plan, as updated.

Auditor’s Reply

As noted above, the Office of the State Auditor (OSA) found problems with DEP's communication/reporting of water quality information during the audit period, including not filing a 2018 Integrated List of Waters Report with EPA; not finalizing its 2016 Integrated List of Waters Report, originally due in April 2016, until December 2019; and not making available through either its Integrated List of Waters Report or the Water Quality Exchange on EPA's website, water quality data it gathered from 2015 onward. These facts are not disputed by DEP in its response; thus the information in this audit finding is accurate.

OSA agrees with DEP that providing the public with scientifically sound, accurate, and useful information on the status of the Commonwealth’s waters should be a high priority for DEP. We also acknowledge that DEP encountered significant obstacles in collecting the data necessary to produce and file reports within the established timelines. Further, we are aware that DEP communicated to EPA its intent to combine the 2018 Integrated List of Waters Report with the 2020 Integrated List of Waters Report and to realign with EPA’s two-year reporting schedule. Although we believe it was prudent of DEP to work with EPA on these matters, we do not think this mitigates the fact that there were opportunities, as reflected in our audit recommendations, for DEP to manage this process more effectively and produce these reports in a timelier manner. We believe it is important for DEP to ensure that the water quality information that it collects and submits to EPA and publishes on its website is accurate. In order for this information to be as useful as possible, it is equally important that the collection and communication of this information be current and timely.

Based on its response, DEP is taking measures to address the issues OSA identified by developing a plan to eliminate its data validation backlog, which will allow DEP to file its Integrated List of Waters Reports on time. We again urge DEP to consider integrating all of our recommendations into its plan, as we believe they will allow DEP to manage this process more effectively and efficiently.

Date published: June 15, 2020
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