Minutes of Nutrient Criteria Stakeholders meeting

1/24/06

Participants:

Greg Anderson, MDNR; Bob Bacon, Environmental Resources Coalition; Dorris Bender, City of Independence; Georganne Bowman, MDNR; Robert Brundage, Newman, Comley & Ruth, P.C.; David Cosaletto, Table Rock Water Quality, Inc.; Cindy DiStefano, MDC; Dan Engeman, MO Dept of Agriculture; James Helgason, MDNR; Wabiporn Intarapapong, FAPRI; Rebecca Landewe, EPA; Candi Lordo, Lakes of Missouri Volunteer Program; Dan Obrecht, UMC; Mark Osborn, MDNR; John Reece, Little Blue Valley Sewer District; Chris Riggert, MDC; Buffy Santel, St. Louis MSD; Phil Schroeder, MDNR; Don Scott, MDNR; Steve Stewart, Upper White River Basin Foundation; Tony Thorpe, UMC; John Waitman, City of Springfield; Tracey Winter, MDNR; Betty Wyse, Environmental Resources Coalition.

Mark distributed a list of lakes and reservoirs that were identified as eutrophic and hyper-eutrophic by the 2004 305(b) report, and requested feedback from the stakeholders on the accuracy of the list.

Drinking Water Lakes

Don Scott, of the Public Drinking Water Program (PDWP), gave some remarks about drinking water lakes:

There are approximately 79 drinking water lakes in the state, including a few closed and emergency lakes. From the list that Mark provided, almost half of these lakes are listed as eutrophic. They include Fellows Lake, which serves Springfield, Lamar Lake, which serves Lamar, and Spring Fork Lake, which is a source for Sedalia. (Note: Fellows Lake is on public notice for delisting.)

The mean of the lake’s size is about 1,000 acres, but that is a misleading figure, because a handful of the lakes are about 6,000-7,000 acres. The median drinking water lake size is about 60 acres. Most are in northern and western Missouri where good reliable groundwater is generally not available. Most of these lakes serve small towns, many of which utilize two or three lakes. Often there is a progression in age as lakes fill in with sediment.

About 20 of these systems have source water protection plans. These are voluntary plans that water systems or communities produce, often with guidance from PDWP. There are about 2,500,000 people in the state that drink surface water. If you exclude the big cities, which draw their drinking water mainly from the Missouri and Mississippi rivers, that leaves about 1,000,000 that draw their drinking water from lakes and reservoirs. Springfield is probably one of the largest communities using lake water. There is growth in the number of districts using Mark Twain Lake.

The state does test for nitrate, but not for total nitrogen or total phosphorus. Plant managers may do some testing to optimize their operations, but that is not necessarily reported to the department. Other parameters being tested as regulations from the Safe Drinking Water Act become more stringent include total organic carbon, residual chlorine, and disinfection by-products. Nutrients are not necessarily removed in the treatment process. The main problem associated with nutrients is taste and odor problems stemming from algae concentrations. Even when there are other issues involved, such as Atrazine, local customers always come back to the issue of taste and odor.

In response to questions, Don reported that usually taste and odor is an issue somewhere in the state, and DNR staff at the regional offices would be more familiar with any current issues. The only data required by the department is for finished water, not supply water. In reply to a question, Don agreed that there could be a time when supply water would need to be tested. It could be a result of decisions by this group.

There is no water system that is out of compliance. There is no regulation governing taste and odor issues, action by the department is strictly complaint driven. There is no database for these problems except what is in the heads of regional office staff.

In reply to another question, Don reported that the average depth for drinking water reservoirs is about 5 feet.

Ox-bow lakes

Georganne then gave a presentation on ox-bow lakes. Ox-bow lakes naturally have short life spans, and now that they have been cut off from flooding due to manipulation of the river, they may even be shorter-lived. They have high wildlife and recreational value. Lewis and Clark recorded viewing many ox-bow lakes during their journey, and Creve Coeur Lake has many Indian artifacts in the vicinity. Ox-bows will never be pristine lakes, and to maintain them for uses such as swimming could be cost prohibitive. They are mainly used for boating, fishing, and hunting waterfowl. So the question remains can we accept oxbows with higher nutrient values, should they be treated as wetlands, or is some type of treatment necessary?

In reply to a question, she reported that complaints come on ox-bows because they need to be dredged, and Creve Coeur Lake is a prime example, and Dalton and Big River Lakes are drying up. The biggest complaint is there is not enough water, and it has to be pumped in from the river. There were a number of articles on this from the St. Joseph News-Press. MoDOT paid $10,000,000 to dredge Creve Coeur to 10 feet depth.

The issue of the dispute with western states over the flow of the Missouri River was mentioned, and how that might affect management of the ox-bow lakes. Georganne suggested that we have to develop nutrient criteria based on the current status.

Another question raised was that, with levees blocking of the river, most of the recharging of ox-bow lakes is due to runoff from agricultural fields, and urban areas in some situations. Shouldn’t these be treated as other lakes affected by these sources? It was pointed out that the watersheds for these lakes are hard to define. Since many of the lakes are very shallow, less than a meter in depth, hyper-eutrophication may be very difficult to control. In the case of Creve Coeur, since it has been deepened, it may not behave like an ox-bow anymore, and should perhaps be classified in a different manner.

Another question raised the issue of what uses we are trying to protect. Most of the lakes are not suitable for swimming, and often the dissolved oxygen level is low. The aquatic community is accustomed to harsh conditions.

In reply to another question, Georganne reported that most of the ox-bow lakes are in agriculture areas, and one ( Dalton) is owned and managed by a levy district.

Nutrient Impairment Definition

Mark introduced a proposed definition for nutrient impairment: “Nutrient impairment is when the nutrient levels in a lake/reservoir are high enough to lead to the production of algal biomass that is sufficient enough to limit designated use.” Dan Obrecht had proposed this definition as a starting point.

Phil raised the question of what limit to designated use means, and that the meaning of partially or entirely unattainable need to be clarified. The impairment is limiting only to uses that are in Tables G and H. The use of general criteria would protect uses not designated. Those would be the existing uses, which are applicable to all water bodies, including those waterbodies that are not listed in Table H, or not classified. Robert asked whether we were working on criteria, rather than a designated use. Phil interpreted the question as to whether DNR has the authority to protect uses not designated, and he opined that it does. There have been a number of cases, in which unclassified waters were identified as needing protection, even though specific designated uses, such as aquatic life protection, were not identified. Best professional judgment was applied in those situations.

In an attempt to clarify the intentions of the Clean Water Act, Rebecca quoted from 40CFR 131.1, concluding that water quality standards are to protect the public health and welfare. Existing and designated uses may be interpreted as the same thing. This was followed by further debate on the meaning of designated and existing uses, with use attainability analysis for swimming used as the prime example. Other issues brought into the discussion included protection of waters through anti-degradation measures (e.g. Table Rock Lake), the fact that people swim in the Missouri River, even though it does not require clarity, and in an ideal world, the agency would be protecting all waters, not just classified waters.

Further questions were raised about designation of waters of the state for specific uses. Dan indicated that what he had in mind in defining nutrient impairment was applicable mainly to the classified lakes, as that indicates a significant chunk to deal with for the time being.

Further discussion centered on attainability, partial attainability, and non-attainability. Hypothetical cases involving local impairment within a larger water body were mentioned, and was “unattainable” accurate to describe such a situation. Phil pointed out that, in EPA guidance for development of the 303(d) list, “attainable” and “unattainable” were terms that were constantly used, it is terminology that is commonly shared between those who write policy and those who write guidance and rules.

Approach to Criteria Development

Mark referred to the poster on display, and put up some numbers for total phosphorus values that would correspond to keeping chlorophyll A values at the required amount to allow Secchi at 1.2 meters.

Timeline for Rulemaking Process

Phil: I have to try to decide at what point do we take this issue to the Clean Water Commission and try to get it on the train with all the other rulemakings we are going to be involved in the next year. So I put together this and it contains two things. This handout contains a list of the various rulemaking efforts DNR will involve stakeholders in this summer. There are a lot of very difficult issues in addition just to the nutrient criteria that we are trying to tackle. Because the department can only make changes to the rules at one time, it is important to have all of the issues bundled up in one package. Then we could draft some new standards and some new criteria. So you can kind of just peruse through that top first list, I am not going to talk about those; I just wanted you to get a sense of all the issues we are trying to address. The second part is probably more important to you all and that is a rulemaking schedule. This is a very preliminary draft, it is my best guess as to what the department is probably going to want to see in terms of progress on some of these rulemaking issues. To think that we could take this group and come to some conclusion and present some draft rules to the commission by July, 2006. It sounds pretty aggressive, but we have a number of issues up on the top and I think we might be able to get to that point. So I think at that point, that is where we are going to start questioning ourselves, are we ready, can we take something to the Clean Water Commission so I have set that out as being the start point for the rest of the dates that follow. If we get something to the commission by July 2006, we can likely file something with the Secretary of State’s office by July 2007. Next would be public hearings on the rule in April 2007 and final approval by the commission in May 2007. And an effective rule sometime about September 2007. As you can see, there is a lot of time involved in just getting the rulemaking done itself. Over the next several months, I am going to be talking to Mark and asking him that question again, how are we doing, are we close, are we getting further behind or is this schedule still realistic. I am just soliciting your help to understand that we do have schedules and we are going to be challenging Mark to help us along at bringing these issues to closure at some point. So take what you will from it, these schedules are likely to change over time but this is one we have for now.

Questions:

Q: How draft can these rules be for the commission?

A: When we present something to the Clean Water Commission, how many of you are going to jump and scream and holler and say I object. I have never seen a point where everyone is at a consensus on the issues, but there is a point you get to that you feel like we have the support of the majority on this and now it is time to move forward and before we lose the ideas and the background and what is supporting our decisions.