April 27, 2004
Leo J. Alderman, Director
Water, Wetlands and Pesticides Division (WWPDIO)
U.S. EPA Region 7
901 N. Fifth Street
Kansas City, KS 66101
Re: Iowa DNR's Implementation of Clean Water Act
Dear Mr. Alderman:
We represent organizations with members who are concerned with implementation of the Clean Water Act in Iowa. Our members drink Iowa water and many of them fish, swim, enjoy nature or otherwise engage in activities dependant on maintenance and restoration of the chemical, physical, and biological health of Iowa waters. Representatives of our organizations participate actively in efforts to improve Iowa water quality and to ensure enforcement of the Clean Water Act in Iowa.
We are writing now to request a meeting with you and appropriate members of your staff to discuss the continuing failure of Iowa Department of Natural Resources (IDNR) to take the minimum steps required by federal law to maintain and protect Iowa waters. Many of our complaints concerning the Iowa program will not come as news to Region 7. Since at least 1997, Region 7 has been raising many of the same issues with IDNR, but over six years later these issues have not been addressed. IDNR continues to permit pollution that is clearly prohibited by the Clean Water Act.
Despite numerous warnings and standards change disapprovals by Region 7 and our organizations' efforts to correct deficiencies in the Iowa program, IDNR:
- has failed to establish antidegradation implementation rules or other necessary components of the federally required antidegradation policy,
- has established an illegal water classification system for “general use” waters that deliberately fails to protect the vast majority of Iowa's stream miles from chronic or acute toxicity,
- utilizes permitting rules regarding “protected flow” that, in violation of 40 CFR 122.44(d), clearly allow NPDES permits to be written that allow discharges that cause or contribute to violations of the water quality standards Iowa does have,
- has failed to adopt necessary numeric water quality standards,
- has misclassified numerous waters with uses less than “fishable/swimmable” without the use attainability analysis required by 40 CFR 131.10,
- improperly allows individuals using many Iowa waters to be exposed to unhealthful pathogens, and
- fails to enforce those limitations it has established in Iowa NPDES permits.
IDNR's actions and failures to act have resulted in great and irreparable damage to Iowa waters and the health of Iowa residents and wildlife. U.S. EPA must act. As Region 7 has itself noted in correspondence to IDNR, U.S. EPA has authority to establish numeric water quality standards for Iowa water under Section 303(c) of the Clean Water Act, 33 U.S. C. §1313(c). (U.G. Hutton to D. McAllister Sept. 4, 1997) U.S. EPA clearly should have exercised this authority years ago. Moreover, approval of Iowa's NPDES program could and probably should have been withdrawn under Section 402(c)(3) of the Act, 33 U.S.C. § 1342(c)(3). Certainly, IDNR is not going to be able to correct the deficiencies in its program without strong leadership from Region 7.
A. Three major issues should be addressed immediately.
We would like to explore with you the potential for bringing Iowa into compliance with the Clean Water Act and discuss with you how most quickly to address the deficiencies in Iowa water programs. This discussion should address, as an initial matter, at least the following three major problems:
1. Iowa now fails to protect most of its streams from chronic and acute toxicity.
Region 7 has long recognized that Iowa’s use of its “general use” classification is not consistent with the Clean Water Act. (See U.G. Hutton to D. McAllister Sept. 4, 1997; U.G. Hutton to P.W. Johnson July 1, 1999; C.A. Crisler to J. Riessen, Oct. 5, 1999; Leo J. Alderman to Jack Riessen December 4, 2002.) Nonetheless, IDNR still classifies a large percentage—over 80% of its stream miles—as "general use" and under Iowa standards does not even purport to protect these waters from chronic toxicity to aquatic life. Actually, these waters are not protected even from acutely toxic conditions.
Under Iowa’s water quality standards, general use waters are not protected against chronic toxicity. Aquatic life existing in these waters are only protected “during elevated flows” against “acutely toxic” conditions. IAC 61.3(1)(a). Region 7 has recognized that only protecting aquatic life during elevated flows is not consistent with the CWA. (U.G. Hutton to D. McAllister Sept. 4, 1997) But actually things are even worse than they appear on the surface of the regulation because IDNR does not apply the numeric water quality standards designed to protect against acute toxicity to general waters. Instead, IDNR claims to implement this “acutely toxic” condition as a narrative standard that it implements by applying a numeric standard developed entirely using research on fathead minnows. In other words, general use waters are basically only protected against conditions that are acutely toxic to fathead minnows during elevated flows.
Even if IDNR’s “general use” classification were limited to waters that typically flow only after short periods of time following precipitation events, it would be illegal. It is plain that existing uses must always be protected in all waters subject to the Clean Water Act. “Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.” 40 CFR §131.12(a)(1). Section 4.42 of the U.S. EPA Water Quality Standards Handbook (Second Ed. 1994, “Handbook”) explains:
Non-aberrational resident species must be protected, even if not prevalent in number or importance. Water quality should be such that it results in no mortality and no significant growth or reproductive impairment of resident species. Any lowering of water quality below this full level of protection is not allowed. (p. 4-5)
Unfortunately, however, IDNR does not limit its use of the “general use” classification to streams that typically only flow after precipitation events. First, streams are also classified as “general” in its published standards that flow as a result of discharges from wastewater treatment facilities. IAC 61.3(1)(a). “This provision is inconsistent with federal regulations at 40 CFR 131.10(g)(2) regarding the designation and maintenance of uses under effluent dominated conditions.” (U.G. Hutton to D. McAllister Sept. 4, 1997.
But again, as to what is classified as “general use,” IDNR practices are actually worse than study of Iowa water quality standards reveals. In fact, Iowa classifies many perennial streams and lakes as “general” although they clearly can and do have a rich aquatic environment. Referencing data in the Iowa 305B report, IDNR water resources officials state in several documents that 83% of Iowa’s river and stream miles are classified as “general”. See Chris Spoelstra to DNR sub-Technical Advisory Committee, August 22, 2003; IOWATER Newsletter 2004-1, Winter 2004. They further state that 54% of all perennial river and stream miles are classified as “general”. This is in direct conflict with Iowa’s own water quality standards.
How is it that so many waters that do not fit into the regulatory definition of “general use” waters are actually classified as such by IDNR? Much of the answer lies in an implementation document titled “Methods for Review of Use Designations of Warmwater Streams in Iowa” (Methods for Review), issued by IDNR in June 1991 and revised in August 1992. The Methods for Review has been exclusively used to evaluate and classify or designate warm water rivers and streams in Iowa. Although purportedly based upon EPA’s Rapid Bioassessment Protocol (Plafkin et al 1989), the authors of the Methods for Review actually acknowledge in their introduction that the Methods for Review is a highly compromised version of the Rapid Bioassessment Protocol.
In fact, the Methods for Review document is seriously flawed in several critical areas. The document includes a use-designation point-count worksheet that actually deducts points if wastewater treatment plants are determined to be degrading the water quality. The document purports to define “aquatic communities of significance” in terms of fish, benthic macroinvertebrates, and aquatic plants, but then bases the biological assessment only upon the presence or absence of fish. Finally, the Methods for Review merges the definitions of intermittent and perennial into one definition, thereby allowing perennial streams to be classified as “general”, in direct contradiction to Iowa’s water quality standards. This Methods for Review document is not a rule-referenced document, and to the best of our knowledge, has never been reviewed or approved by the Iowa Environmental Protection Commission, or the U.S. EPA.
2. Iowa issues permits that fail to protect waters during low flow conditions.
Even the water segments that IDNR purports to protect are not really protected. A casual reading of IAC 61.2(5) suggests that IDNR will write permits with limits designed to protect waters from chronic and acute toxicity during critical low flow conditions. In fact, however, Iowa has arbitrarily adopted rules that set permit limits that are only sufficient to protect waters at “protected flows” that are well above the critical low flows (7q10) for which waters must be protected. Region 7 is aware of this practice to some extent and has noted that “Iowa’s use of ‘minimum flows’ or ‘protected flows’ has not been shown to adequately protect aquatic life” (C.A. Crisler to J. Riessen, Oct. 5, 1999, p.5.) IDNR’s use of “protected flows” instead of 1q10 and 7 q10 low flows is most certainly not protective. Almost 400 of Iowa’s B(LR) and B(WW) designated streams have been assigned “protected flows” for the purpose of calculating discharge permit waste load allocations. This represents 55% of all B(LR) waters and 14% of all B(WW) waters! Even though EPA has questioned Iowa’s use of “protected flows” and has listed this as an important element of this triennial review, IDNR has just added an additional group of waters to the protected flow list in defiance of EPA’s stated concerns.
3. Iowa must develop proper antidegradation implementation rules and use them to prevent unnecessary new pollution.
The antidegradation policy that IDNR has is clearly defective because it does not afford tier I or tier II protections to most of the state’s waters. Further, there is no provision in the rules for designating Outstanding National Resource Waters (ONRWs) with tier III protections. Still further, IDNR has failed to establish antidegradation implementation rules.
As explained above, the huge number of waters classified as “general” do not even get the protection of existing uses required by the CWA for all waters. The Iowa waters designated as Class B are supposed to receive this minimal protection of existing uses (as to their “protected flow”), IAC 61.2(2)(f), but levels of water quality higher than those necessary for protection of aquatic life and recreation do not receive the tier II protections against unnecessary degradation required by 40 CFR 131.12(a)(2) even in Class B waters. Only levels of water quality in the small fraction of Iowa waters classified as “high quality waters” under 61.2(2)(b) (HQ) are given basic tier II protections against pollution that is not necessary to accommodate important social or economic activity. Probably because tier II protections are so limited in Iowa, we have been unable to find examples of a tier II review being performed as part of any NPDES permit application.
We believe strongly that all Iowa waters should receive tier II protections against unnecessary degradation on a pollutant-by-pollutant basis. Certainly, however, IDNR cannot legally deny tier II protections to any waters that it has not both listed as impaired on its 303(d) list and shown not to have levels of high quality. See Ohio Valley Environmental Coalition v. Horinko, 279 F. Supp. 2d 732 (S.D. W.Va. 2003). IDNR’s current practice of affording tier II protections only to a small fraction of its waters is clearly improper.
Although there has apparently been some confusion on this point in the past, see C.A. Crisler to J. Riessen, Oct. 5, 1999, Iowa does not have anything like a category of waters protected by the protections for Outstanding National Resources Waters as discussed in 40 CFR 131.12(a)(3). Such a classification is legally required of states, Ray Proffitt Foundation v. Browner, 930 F. Supp. 1088 (E.D. Pa. 1996) and, thus, in yet another way, Iowa’s water quality standards are inconsistent with the minimum requirements of federal law.
B. Additional critical deficiencies in the Iowa water program must be addressed.
All of the deficiencies in the Iowa programs cannot be addressed adequately in one meeting. We want, however, to make clear at the outset that there are numerous problems that must be addressed promptly unless U.S. EPA intends to establish water quality standards for Iowa and withdraw approval of Iowa’s NPDES program. Among these additional deficiencies in the Iowa program that must be addressed to protect Iowa water quality and human health are:
1. IDNR downgrades use designations without performing proper use attainability analyses
Iowa has designated numerous streams as non-swimable without even purporting to do the use attainability analysis required for such designations under 40 CFR § 131.10 The most notable fact regarding listings of recreational uses under Iowa’s classification system is that very few Iowa waters are listed as having recreational uses. (see www.state.ia.us/dnr/organiza/epd/wtresrce/ wquality/files2/swc.pdf ) Huge numbers of Iowa waters are not protected for fish consumption, secondary contact or children’s recreation although no use attainability analysis has been done considering those possible uses. In a number of such cases the waters are not protected for such uses although it is well known that the waters are actually being used for the purposes for which they should be protected.
2. A number of Iowa numeric standards are not protective.
It appears that many of Iowa’s numeric standards are not protective or are substantially weaker than the corresponding U.S. EPA recommended criteria. Iowa’s current human health standard for mercury, 0.05µg/L, appears to be based on the old minimum detection limits. Other standards that should be reviewed are those for aluminum, toxaphene, dieldrin and cadmium.
Of course, it is also critical that Iowa develop proper nutrient standards adequate to protect Iowa water and waters downstream.
3. Iowa is not properly enforcing conditions in NPDES permits
It is readily apparent that Iowa DNR is not meaningfully enforcing even the weak limits that appear in Iowa NPDES permits. During the period from Jan 01, 2000 thru Dec 31, 2003, the average number of facilities with numeric violations (code E90) was 727, yet only four non-compliance enforcement actions per year typically result in monetary penalties, with the average fine being $3,000.
Moreover, as you know, we also have serious concerns with Iowa’s water quality assessment methods and failure to implement Section 303(d) properly.
We simply cannot wait for IDNR and the Technical Advisory Committee IDNR has established to address any of these issues. Except for improving the use classification system for recreational uses, the TAC has focused its work almost entirely on developing ways to weaken protections for Iowa waters rather than improving protections.
We would like to set up a meeting as soon as possible in order to prevent the issuance of more improper permits and still more damage to the environment. Although a number of the people interested in discussing this issue with you would be unable to come to Region 7 headquarters, several of us are nonetheless willing to come to Kansas City so that you can most easily assemble the proper members of your staff.
We look forward to meeting you.
Jane R. Clark, Chair
Iowa Chapter, Sierra Club
Albert F. Ettinger, Senior Staff Attorney
Environmental Law & Policy Center and Counsel for Sierra Club
Jerry Anderson, President and Managing Attorney
Midwest Environmental Justice Advocates
Richard Leopold, Executive Director
Iowa Environmental Council
Steve Veysey, Fisheries and Environment Protection Coordinator
Hawkeye Fly Fishing Association
CC: Jeff Vonk, Director, Iowa Department of Natural Resources
Chuck Corell, Water Quality Bureau Chief, Iowa Department of Natural Resources