Hello Neila and "Tree Hugger",

There is a reasonable (not perfect) summary of the controlling law regarding
Susan West's question on pages 4,5, and 6 ("Background" Section) of the UAA
Recreational Assessment Protocol approved earlier in 2008.
http://www.iowadnr.com/water/standards/files/uaaa_noia.pdf

The UAA process is a construct by EPA to implement the "wherever attainable"
phrase in the Clean Water Act 101(a)(2) "fishable/swimmable"goal:

"*It is the national goal that wherever attainable, an interim goal of water
quality which provides for the protection and propagation of fish, shellfish
and wildlife and provides for recreation in and on the water be achieved by
July 1, 1983*."


The 500+ page responsiveness summary to the UAA public comments has been
posted at:
http://www.iowadnr.com/water/uaa.html  The links are near the bottom of that
page.

We have numerous problems with the UAA process, and I won't go into all of
them now, but one of the most frustrating has been DNR's refusal to publish
in writing (and therefore debate) the actual decision-making metrics being
used to determine whether a stream should be downgraded.  In the case of
recreational use designations, specific metrics were stripped from the Rec
protocol linked above so that the document could not be construed as
"changing Iowa's water quality standards", which would have required EPA
approval.  We believe that the language was stripped out at the suggestion
of EPA so they would not have to formally rule on some controversial issues
regarding whether the use of flow or depth can be used to downgrade the
recreational uses.  If you look at the UAA's posted at
http://programs.iowadnr.gov/uaa/search.aspx  you will see that depth and
flow were generally the ONLY reason DNR gave for deciding that primary
contact activities were not "attainable".

Most of what I'm about to say you will not find in writing.  Some is alluded
to in the Rec protocol, but not expressed in determinative fashion (then it
would be a "standard" and require EPA approvall).  To determine if an A1 use
*could occur*, they have chosen a depth of 19" (average) or 38" (frequent
pools) as their metric.  Also, the pools have to be "permanent" and
"natural", so deep spots near bridge supports don't count, and deep spots at
beaver dams don't count. To determine that an A1 use *is occurring*, they
must either see it occurring during their site visit, or the evidence they
have must meet two tests: 1) They must have documented evidence of some sort
of human activity at the sites they visited, when they visited them
(graffiti on bridge pilings, discarded towels or play toys, foot prints in
the sand, et cetera) AND... 2) They must have written testimony, specific as
to location, claiming that an A1 activity has occurred, or in the case of
children's play (A3 designation), that it occurs frequently.

Note some of the problems with their approach:

1) First, they require that the depth criteria of 19" (or 38" for frequent
pools) must be met at times of "summertime base flow".  This language refers
to flows that are greater than the once-in-seven-year low flows, but are not
representative of greater flows and depths that often occur during the
legally defined recreational season  (March 15 to November 15).  In fact,
DNR has gone so far as to reject in this responsiveness summary, testimony
that swimming and other A1 uses occurred if they conclude that the
activities must have been occurring at flow regimes above the summertime
base flow.  (For the technical among you, this position of DNR's is very
disturbing, because the main EPA document they seem to be using to allow
depth as a determining factor - which we dispute - clearly states that the *
range* of flows and depths throughout the recreational season should be
considered in applying a depth criteria. They are ignoring that caveat.)

2) Second, it would seem that no amount of evidence observed during their
site visits (exclusive of actually seeing people swimming) is sufficient to
prove an A1 use if the water depth is less than 19"/38" during their visit.


3) Testimony they receive specifying A1 uses is often being discounted
unless DNR has evidence obtained during their site visit of "human
activity".  This means that not only do people have to use the water for A1
activities, they also have to be slobs about it and leave behind garbage or
graffiti.

4) When testimony is received regarding kid's "swimming and playing", they
seem to be reviewing it primarily from the perspective of an A3 "kid's play"
designation, which adds the extra burden that it must be proven to be
"common".  This is incorrect.  Kid's are people too, and an A1 designation,
which only requires that the activity occurred and/or is occurring, should
be considered first.  The A3 designation is meant to apply to small streams
(even intermittent and ephemeral streams) in urban areas.  I know, I was one
of several people who advocated for this designation several years ago in
response to the College Creek fiasco in Ames.  Any perennial stream where A1
activities occur should receive an A1 designation.

The problem we face is that the EPC has allowed this chess game to proceed
literally to the final moves without stepping in and forcing the issue on
key points related to the determinative factors being used by DNR.  Instead
they have largely left those challenges to the last minute. In fairness,
several commissioners have requested that the first rule-package be limited
to 50 streams, so that these issues could be worked out, but those requests
have been ignored by DNR management.

So far I've just talked about the "recreational use" downgrades.  DNR is
proposing to downgrade virtually all assessed stream miles from an aquatic
life designation B(WW1) to B(WW2).  There appears to be testimony and
evidence of fishing that is NOT being used as proof that the B(WW1)
presumptive designation should be maintained.   DNR staff are quick to
respond that a WW2 designation is just as protective of aquatic life as a
WW1 designation, but they never complete the sentence... WW1 designations
presume the harvest of fish for consumption, so automatically trigger an
additional designation called HH, which protects for human health by
requiring that bioaccumulative toxins in the water also be identified and
regulated.  With the WW2 designation, the presumption is that people do not
harvest fish, so there is not even a requirement to test the water for these
additional pollutants.

I could go on and on, but this e-mail is already too long.


Steve Veysey, Conservation Co-chair
Iowa Chapter of the Sierra Club

>  ------------------------------
> Date: Fri, 21 Mar 2008 22:32:06 -0500
> From: [log in to unmask]
> Subject: Re: DNR received 2000 WQ public comments
> To: [log in to unmask]
>
> Does anyone know *where in the Clean Water Act it "points out that the
> presumption that all perennial streams be fishable and swimmable is not
> always appropriate"?  It's a large document(200+ pages) and I can't tell by
> the Chapter titles where to look for when "fishable and swimmable"
>  designation would not be appropriate.   For those of us who are hoping to
> get a platform plank approved to include all waters of the state, it would
> be helpful to know just exactly why they aren't already included.*
> Susan West,  a.k.a. Tree Hugger
>
>
>  On Mar 20, 2008, at 12:38 PM, Neila Seaman wrote:
>
>
>
> *DNR TO PRESENT WATER QUALITY STANDARDS AFTER RECEIVING 2,000 PUBLIC
> COMMENTS*
> * *
> *MEDIA CONTACT: Adam Schnieders at (515) 281-7409 or
> [log in to unmask] or Lori McDaniel at (515) 281-8094 or
> [log in to unmask]*
>
>
> DES MOINES — After receiving more than 2,000 comments from the public, the
> DNR plans to present its water quality standards recommendations to the
> Environmental Protection Commission for final approval in April.
>
>
> Based on information from the public the DNR is giving additional levels
> of protection to 47 segments of Iowa rivers and streams.  Most of the
> comments were focused on about 20 river and stream segments.
>
>
> "We were very pleased with the large public response and having Iowans
> engaged in this process. Their comments led us to make these changes," said
> Richard Leopold, DNR Director. "Iowans care about protecting their rivers
> and streams, and we're glad to partner with them in this effort."
>
>
> Since July 2006, a small number of DNR staff has logged more than 30,000
> hours working on water quality standards, including 3,000 hours reviewing
> public comments. Staff also completed almost 6,300 assessments of streams at
> more than 3,000 locations.
>
>
> Water quality standards protect fish and other aquatic life in streams, as
> well as the people who play in or on the water. Based on the physical
> characteristics of streams and how are used, they receive different levels
> of protection, or "designations." The DNR asked how the public used certain
> streams.
>
>
> "In Iowa, we have large rivers like the Mississippi, but many smaller
> perennial streams that can be as wide as a doorway and as deep as a coffee
> cup," said the DNR's Adam Schnieders. "There are different types of aquatic
> life in these streams and different types of recreation possible. So
> different levels of protection are warranted, based on the types of uses
> these rivers and streams could support."
>
>
> Prior to 2006, these smaller streams received limited protection for
> aquatic life and no protection for recreation. While waterskiing may not be
> possible in these small streams, they may be used for other recreation like
> trapping and minnow seining, which pose a significantly smaller chance of
> ingesting measurable amounts of water that could pose a health risk. Because
> of the varied types of recreation possible, larger streams and rivers are
> afforded different protection than smaller streams.
>
>
> To improve the amount of protection on Iowa streams, the DNR followed
> federal Clean Water Act requirements, presuming that all perennial streams
> are "fishable and swimmable." However, the Clean Water Act points out that
> this presumption will not be appropriate for all waters. For those streams,
> a process called a Use Attainability Analysis can help determine what
> protections a stream should receive based on what it is capable of
> supporting. The DNR used this process, along with public comments, to
> determine what these streams are capable of supporting and what level of
> protection they need.
>
>
> *Writer: Jessie Brown*
>
>
> # # #
> - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - To
> unsubsribe from the IOWA-TOPICS list, send any message to:
> [log in to unmask] Check out our Listserv
> Lists support site for more information:
> http://www.sierraclub.org/lists/faq.asp To view the Sierra Club List Terms
> & Conditions, see: http://www.sierraclub.org/lists/terms.asp
>
>
> - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - To
> unsubsribe from the IOWA-TOPICS list, send any message to:
> [log in to unmask] Check out our Listserv
> Lists support site for more information:
> http://www.sierraclub.org/lists/faq.asp Sign up to receive Sierra Club
> Insider, the flagship e-newsletter. Sent out twice a month, it features the
> Club's latest news and activities. Subscribe and view recent editions at
> http://www.sierraclub.org/insider/
>
>

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
To unsubscribe from the IOWA-TOPICS list, send any message to:
[log in to unmask]

Check out our Listserv Lists support site for more information:
http://www.sierraclub.org/lists/faq.asp