Division of Surface Water Response to Comments

Transcription

1 Division of Surface Water Rule: Water Quality Standards Beneficial Use Designation Rules OAC Chapter Agency Contact for this Package Division Contact: Dan Dudley Division of Surface Water Ohio EPA held an interested party comment period from July 22, 2016 to August 23, 2016 regarding five Water Quality Standards beneficial use designation rules. This document summarizes the comments and questions received during the associated comment period. Ohio EPA reviewed and considered all comments received during the public comment period. By law, Ohio EPA has authority to consider specific issues related to protection of the environment and public health. In an effort to help you review this document, the questions are grouped by topic and organized in a consistent format. The name of the commenter follows the comment in parentheses. General Comments Comment 1: Response 1: Several segments in the Sandusky and Maumee river basins have been proposed to be designated as modified warmwater habitat (MWH) because of poor habitat as a result of channelization or county ditch maintenance. At 21 of these segments (identified in the attached spreadsheet), surveys found fish or macroinvertebrate communities that would be considered as attaining the warmwater habitat (WWH) use based on the IBI or ICI biocriteria for the applicable ecoregion. EPA s understanding is that the state typically designates a stream as WWH if either the fish or macroinvertebrate community meets the WWH biocriteria, regardless of the results of the habitat assessment. Please explain why Ohio decided to designate these segments as MWH in light of the observed biological communities. (U.S. EPA Region 5) Two of the segments in question were recommended for the MWH use designation in lieu of the current WWH designation because of impounded conditions, as opposed to channel modification. These segments include:

2 October 2016 Page 2 of 6 Auglaize River Blanchard River (RM 26.2) to the Defiance Power dam (RM 5.8) Tiffin River US Route 24 (RM 1.3) to the mouth As represented in the data below, the impounded segment of the Auglaize River exhibits a very poor macroinvertebrate community that falls far short of WWH ecoregional expectations (ICI = 34) at all three sites that were sampled within the impounded zone, and stands in sharp contrast to the ICI measured immediately upstream and downstream of the impounded zone. The dam is connected to the operation of a hydroelectric plant and is thus considered to be a permanent feature along with the resulting impoundment. The lack of flow and depressed habitat conditions preclude attainment of the WWH biocriteria. The MWH-I designation represents the attainable conditions given these habitat features. Similarly, a small portion of the Tiffin River is impounded by the Independence lowhead dam located on the Maumee River at river mile 60, producing conditions that preclude attainment of the WWH biocriteria by backing up the water in the lower 1.3 miles of the Tiffin River, which enters the Maumee River at RM Note that this is at the upper end of the Independence dam pool of the Maumee River which extends from RM 60.0 upstream to the Tiffin River confluence at RM This segment of the Maumee River is presently designated MWH due to the impoundment resulting from the Independence dam. As seen in the attainment table for the Tiffin River (see Table 2 of the Tiffin River TSD), the ICI score for the impounded segment was only 18, while ICI at the two most immediate upstream stations sampled from there where the river is free-flowing scored ICIs ranging from The remaining 19 water bodies identified in the comment were recommended MWH due to impacts on stream habitat as a result of channel modification. Ohio EPA has re-reviewed the information on these 19 streams and a number of additional streams slated for the MWH designation. The conclusions reached are described below. Designation Deferred due to Partial Data Set Two of the remaining nineteen streams EPA commented on (Brights Ditch and Hydraulic Ditch) were recommended MWH based only on qualitative macroinvertebrate data. Ohio EPA is deferring the designation of MWH for

3 October 2016 Page 3 of 6 these two water bodies and a number of other water bodies as listed below until such time as a complete set of data (fish, macroinvertebrates, and habitat) is available in order to document and support the designation decision. Stream Hydraulic Ditch Brights Ditch Rickenbach Ditch Cartwright Run Miller City Cutoff Buckrun Creek Tiro Creek Celery Creek Unnamed Sycamore Cr RM 0.85 Designation Status Remains unverified WWH Remains unverified WWH Remains verified WWH Remains unverified WWH Designations Deferred for other Reasons Upon further review, the MWH designation for The Outlet (lower) at Blanchard River RM and for Broken Sword Creek from the headwaters to Eaton Road (RM 21.4) is deferred. The Outlet is a rather unique stream that drains an area of peat soil. This landscape feature is rather unique in Ohio and appears to result in a higher contribution of shallow ground water to the stream flow and may explain the contrasting attainment status of the fish and macroinvertebrate communities. We believe that additional sampling and evaluation of the data is warranted before pursuing a redesignation of its current unverified WWH status. Broken Sword Creek has demonstrated a significant increase in habitat quality as measured by the QHEI at several locations within the headwaters zone when comparing assessments performed in 2001 and We have also observed a modest increase in the IBI scores at three of these locations over the same intervening period, but not much positive response of the macroinvertebrate community. Given the positive habitat trend though, retention of the current verified WWH as presently listed in the rule until another round of assessment can be done would be prudent to determine if the macroinvertebrate community will respond to the improved habitat given some additional time. Adjustments to Draft MWH Designation Ohio EPA believes the MWH use in the draft rules is sound for the following water bodies, but have adjusted the MWH segment delineation as described below based on additional analysis. The downstream reaches of these streams retain a number of attributes conducive to supporting WWH goals such as wider wooded riparian corridors and sinuous channels. a The warmwater habitat chemical criteria apply to undesignated water bodies.

4 October 2016 Page 4 of 6 Upstream of these reaches though, these features are largely absent with channel morphology consistent with the biological and habitat data supporting the MWH designation. As such, the following streams are delineated as follows: Moffitt Ditch Retain the unverified WWH designation for the segment from the unnamed tributary entering at RM 0.37 to the mouth, with the MWH recommendation applicable upstream from RM Van Meter Creek Retain the unverified WWH from Infirmary Road (RM 1.7) to the mouth, with the MWH applicable upstream. Bear Creek Retain the unverified WWH from the unnamed tributary at RM 3.63 to the mouth, with the MWH designation applicable upstream. Deer Creek Retain the unverified WWH designation from State Route 115 (RM 1.57) to the mouth, with the MWH designation applicable upstream. Upper Prairie Creek - Retain the unverified WWH from Middle Creek (RM 0.33) to the mouth, with the MWH applicable upstream. Retain Original Draft MWH Designation Ohio EPA has retained the original MWH recommendation for the streams and stream segments as listed below. These water bodies have one or more of the following characteristics that preclude attainment of the WWH biocriteria: low gradient, entrenchment, urbanization, lack of sinuosity, lack of riparian corridor, small drainage area, under routine channel maintenance. The Agency acknowledges that partial WWH attainment b was measured, that alone does not necessarily signal confidence that the WWH goal is attainable in the stream, especially considering some of the factors mentioned above. Both Ohio EPA and U.S. EPA consider partial attainment to be the equivalent of nonattainment. Therefore, attainment potential must be based on the ability of the habitat to support all of the applicable biological criteria, not just a part of them. Cranberry Creek headwaters to Little Cranberry Creek (RM 17.05) Honey Creek Scott Road (RM 37.3) to State Route 4 (RM 28.3) Zink Ditch Flatrock Creek headwaters to Kings Church Road (RM 51.68) Middle Creek Rattlesnake Creek Hill Ditch Sycamore Creek headwaters to State Route 19 (RM 17.8) Sugar Creek - headwaters to downstream Stewart Road (RM 20.0) Plum Creek confluence of Sycamore Creek and unnamed tributary at Plum Creek RM 15.8 to Township Road 14L (RM 5.2) b Partial attainment means that one or more of the applicable biological indices fails to meet the applicable biocriteria. Full attainment means that all of the applicable indices meet the biocriteria. Non-attainment means that none of the applicable indices meet the biocriteria or one of the organism groups reflects poor or very poor performance.

5 October 2016 Page 5 of 6 Comment 2: Response 2: Comment 3: Response 3: Comment 4: Response 4: Comment 5: A modified agricultural water supply use ( irrigation only ) with an applicable fluoride criterion of 15 mg/l is proposed for Dicks Creek in the Great Miami River basin. As justification for modification of the use, the report submitted by AK Steel cites land use classifications within ¼ mile of Dicks Creek and records of well locations on or near Dicks Creek. As far as EPA can determine, the land use classifications used in the report reflect current land uses. Is the state aware of any land use changes near Dicks Creek that would indicate presence of livestock farms located near Dicks Creek at any time since November 28, 1975? Similarly, are there any inactive wells not included in Figure 3 that would indicate a historic livestock watering use? (U.S. EPA Region 5) A map of land use produced by the regional water quality planning agency indicates that the same pattern of land use seen today existed in Planning agency staff were in contact with Butler County NRCS personnel and found no indication there have been any livestock facilities along lower Dicks Creek. The water withdrawal records in the AK Steel report (Figure 3) include all records (active and inactive) of groundwater and surface water withdrawals contained in the Ohio DNR data base for the Dicks Creek watershed. The report, Biological and Water Quality Study of the Middle Great Miami River and Principal Tributaries, 2009 recommends and the fact sheet for this rulemaking indicates the designation of both coldwater habitat (CWH) and exceptional warmwater habitat (EWH) for Pleasant Run on the segment from Elizabeth Road (RM 0.85) to the mouth in the Great Miami River basin. However, the draft rule only includes a EWH designation for Pleasant Run. Has the state re-considered a dual designation and, if so, what information is it relying on to support that re-consideration? (U.S. EPA Region 5) This was an oversight in marking up the draft rules and has been corrected in the proposed rules to reflect the EWH and CWH use designations. In reviewing the proposed revisions for the North Fork of Skin Creek, EPA noted that although multiple coldwater macroinvertebrate species were found, only one coldwater fish species was identified. Based on these results Ohio EPA did not propose a CWH use for this water. Based on these results, Ohio may wish to revise its existing definition of coldwater habitat, native fauna at (B)(1)(f)(ii) to recognize that coldwater fish species may not be present in all waters capable of supporting populations of native coldwater vertebrate and invertebrate organisms and plants. (U.S. EPA Region 5) Ohio will take this comment under consideration in any potential future revisions to the CWH definition. Prior to approving any water quality standards revisions, EPA must consult with USFWS when federally-listed threatened or endangered species or listed critical habitat are located within the area affected by EPA s approval action. In reviewing the draft revisions, EPA evaluated whether listed species or habitat are present in the waters affected by the draft revisions. Based on our analysis,

6 October 2016 Page 6 of 6 it appears that many of the segments proposed to be designated as MWH or LRW either flow directly into or are within ten miles upstream of a water body containing federally-listed mussels. Based on our preliminary assessment, we urge Ohio EPA to discuss these draft revisions to Ohio s beneficial designated uses with the US Fish and Wildlife Service to ensure that any threatened or endangered mussels located in or downstream of these segments are sufficiently protected. We would be happy to share our assessment with Ohio EPA or to discuss this issue further. (U.S. EPA Region 5) Response 5: Ohio EPA understands the responsibility U.S EPA has with the USFWS for ESA Section 7 consultation as part of its review and approval process. We note that Ohio EPA did not receive any comments from USFWS during the comment period regarding federally-listed mussels. Ohio has initiated its WQS triennial review. As part of its review, Ohio EPA expects to update its aquatic life criteria for ammonia such they are consistent with federal criteria guidance. Finally, we remind U.S. EPA of the fact that water quality criteria applicable to waters downstream of those water bodies affected by this rulemaking remain in force. End of