Minnesota Center for Environmental Advocacy 26 East Exchange Street Suite 206 Saint Paul, MN

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1 Minnesota Center for Environmental Advocacy 26 East Exchange Street Suite 206 Saint Paul, MN September 30, 2016 Miranda Nichols Minnesota Pollution Control Agency 520 Lafayette Road North St. Paul, MN Linda Holst Water Quality Branch (WQ-16J) Water Division, Region 5 U.S. Environmental Protection Agency 77 West Jackson Blvd Chicago, Illinois VIA ELECTRONIC MAIL Re: Draft 2016 Impaired Waters List (303(d) List) Comments of Minnesota Center for Environmental Advocacy Thank you for the opportunity to submit these comments on behalf of the Minnesota Center for Environmental Advocacy (MCEA) on Minnesota s draft 2016 impaired waters list and MPCA s Guidance Manual for Assessing the Quality of Minnesota Surface Waters for Determination of Impairment, 305(b) Report and 303(d) List, 2016 Assessment and Listing Cycle ( Assessment Guidance ). MCEA is a Minnesota non-profit environmental organization whose mission is to use law, science and research to preserve and protect Minnesota s wildlife, natural resources and the health of its people. MCEA has statewide membership. MCEA has been concerned about impairment of Minnesota s waters from point and nonpoint source discharges for a number of years, has made impaired waters a significant component of its work, and has participated in a number of related policy and legal matters. MCEA is concerned that the draft 303(d) list does not include 1) rivers and streams that exceed Minnesota s river eutrophication standards; 2) lakes and rivers that exceed Minnesota s narrative water quality standards due to nitrate caused aquatic toxicity; and 3) waters that exceed the state s sulfate water quality standard. In addition the draft guidance rewrites the EPA approved river eutrophication standards with less stringent numeric thresholds for the Southern Nutrient Region, a longer-term averaging period, and an improper assumption that if sestonic chlorophyll-a is not known to be a problem in a river or stream, separate water quality standards are attained.. Finally, the data minimums established in the Assessment Guidance are nearly unattainable under Minnesota s current monitoring strategy and thwart implementation of the state standards. 1

2 To rectify these concerns MPCA must revise its Assessment Guidance, draft impaired waters list, and if necessary its monitoring strategy, to ensure that all rivers and streams that exceed the EPA approved river eutrophication standards as a summer average, regardless of whether sestonic chlorophyll-a has been documented, are included on the state s 2016 impaired waters list. In addition, MPCA must, at a minimum, include the waters MCEA has identified in Appendices A-C on its 2016 impaired waters list because these waters clearly exceed state water quality standards: Appendix A includes waters that exceed state standards for phosphorus and one or more response variable and meet MPCA s current data minimum requirements; Appendix B includes waters that exceed state standards for phosphorus and one or more response variables based on 8-11 samples (these waters meet the data minimums MPCA has established for assessing the compliance with lake eutrophication standards); 1 and Appendix C includes waters that exceed Minnesota s draft numeric nitrate standards and should be included on the state s 303(d) impaired waters list as impaired for aquatic toxicity. MPCA Must List Waters That Exceed the EPA-Approved River Eutrophication Standards The Clean Water Act requires Minnesota to collect and use water quality data to determine whether the state s newly adopted river eutrophication standards are met, and when they are not met, to identify such waters as impaired. 2 Critical to meeting this requirement is the proper interpretation of the water quality standards that must be attained. However, MPCA s Assessment Guidance has identified the wrong thresholds for the meeting river eutrophication standards in the Southern Nutrient Region. In addition, contrary to the EPA-approved standards, MPCA s 303(d) list does not include waters that exceed the river eutrophication standards unless MPCA has also linked the exceedance to sestonic algae growth. Finally, MPCA has improperly excluded from its 303(d) impaired waters list those waters that exceed the river eutrophication standard in some summers but not as a long-term average. The EPA-Approved River Eutrophication Standards for the Southern Nutrient Region Must Be Used for Assessment Purposes MPCA must assess rivers and streams in the Southern Nutrient Region for compliance with the EPA-approved River eutrophication standards - 35 ug/l chlorophyll-a, 4.5 Diel Dissolved Oxygen (DO) Flux, and 3.0 Biological Oxygen Demand (BOD). 3 However, MPCA s Assessment Guidance incorrectly identifies the standards for the Southern Nutrient Region as 40 ug/l chlorophyll-a, 5.0 mg/l Diel DO Flux, and 3.5 mg/l BOD. 4 MPCA must revise the Assessment Guidance to reflect the correct standards for the Southern River Nutrient Region, as approved by EPA, and must determine whether the 1 Assessment Guidance, at U.S.C. 1313(d); 40 C.F.R C.F.R (c)-(d); January 23, 2015 Letter from Tinka Hyde, EPA, to John Linc Stine, MPCA ( EPA Approval Letter ), attached as Exhibit A; January 23, 2015 Basis for EPA Approval of Minnesota s New or Revised Eutrophication and Total Suspended Solids Criteria in Accordance with Section 303(c) of the Clean Water Act ( EPA Basis for Approval ), attached as Exhibit B. 4 Assessment Guidance at 21. 2

3 waters exceed the EPA-approved standards when developing the state s 303(d) impaired waters list. 5 MPCA Must Include Waters that Exceed the River Eutrophication Standards on the State s 303(d) Impaired Waters List Regardless of Whether the Exceedance is Linked to Documented Sestonic Algae Growth Rivers and streams that exceed the total phosphorus standard and any one or more of the river eutrophication response thresholds for chlorophyll-a, BOD5, Diel DO flux, or ph do not meet Minnesota s River eutrophication standards. 6 However, MPCA is only including waters that exceed the phosphorus river eutrophication standard on its 303(d) impaired waters list if it also has evidence of sestonic algae growth, regardless of whether those waters also exceed one or more of the response standards. MPCA was clear when it sought EPA approval (pursuant to 40 C.F.R ) of its river eutrophication standards: the standards are not met in streams/rivers where [phosphorus] is exceeded and any one or more of the response variables is exceeded. 7 As EPA noted, the river eutrophication standards amount to four distinct dual-pollutant criteria: phosphorus and chlorophyll-a, phosphorus and BOD, phosphorus and Diel DO Flux, and phosphorus and ph. 8 MPCA must list waters as impaired that exceed any of these dual pollutant criteria. 9 Neither the plain language of the state standard, nor EPA s approval, indicate that rivers and streams meet the river eutrophication standards if they exceed the standards but are not growing sestonic algae. Yet MPCA s Assessment Guidance directly contradicts the plain language of its regulations and the EPA approved river eutrophication standards. According to the guidance, MPCA does not consider a river or stream that exceeds the phosphorus threshold to exceed the river eutrophication standard unless 1) the agency has two years of data showing chlorophyll-a levels exceed the standard or 2) BOD or Diel DO Flux levels exceed the standard AND there is evidence that the exceedance is tied to sestonic algae. 10 MPCA must include on its 303(d) impaired waters list all rivers and streams that exceed the phosphorus threshold and exceed BOD, Diel Do Flux, or ph thresholds regardless of whether the chlorophyll-a threshold is met or MPCA has documented evidence of sestonic algae growth. 11 MPCA Must List As Impaired Rivers and Streams That Exceed River Eutrophication Standards as A Summer Average 5 40 C.F.R (c)-(d). 6 Minn. R , Subp. 2b, 3b, 4b. 7 See EPA Approval Letter; November 5, 2014 Letter from Rebecca Flood, Assistant Commissioner, MPCA, to Tinka Hyde, US EPA Region 5, attached as Exhibit C. 8 EPA Approval Letter at 2, EPA Basis for Approval, at U.S.C. 1313(d); 40 C.F.R Assessment Guidance, at 22, This not only violates the clear language of the EPA River eutrophication standards but, because sestonic algae is less likely to grow in wadeable streams, also virtually guarantees that wadeable streams suffering from the impact of high phosphorus loading will not be listed as impaired. 3

4 Rivers and streams that exceed the river eutrophication standards during any summer exceed the standard and must be included on the state s 303(d) impaired waters list. 12 MPCA correctly identifies river and streams as impaired if the average of all summer data collected during the last 10 years exceeds the standard. However, MPCA does not include rivers and streams that exceed the standard during any given summer, but not as a multi-summer average, on the state s 303(d) impaired waters list. River eutrophication standards are compared to summer-average data. 13 A summer average is the average of data taken over one summer. 14 However, under the Assessment Guidance waters that exceed the standards in any given summer are not considered impaired unless all the data collected during the past 10 years, when averaged, also exceed the standards. A few examples illustrate that unless MPCA considers summeraverage data (as defined in state regulations) in addition to long-term average data, the agency will fail to identify waters that exceed river eutrophication standards: The Le Sueur River, AUID , is clearly exhibiting a response to high phosphorus levels and exceeds the chlorophyll-a threshold in four of the seven summers with data. However, MPCA did not identify the water as impaired because the long-term ambient chlorophyll-a concentration (37.5 ug/l) does not exceed the standard (35 ug/l) by enough. In the North Fork Crow River, AUID , chlorophyll-a concentrations exceeded the threshold in one of the two years for which data was collected. However, MPCA did not identify this reach as impaired because the average of all chlorophyll-a data for this reach is equal to the standard. Minnesota s river eutrophication standards are clear MPCA must include waters that exceed river eutrophication standards as a one-summer average on its 303(d) impaired waters list. MPCA s failure to include rivers and streams that exceed the standard in any given summer on the state s 303(d) impaired waters list conflicts with the clear requirements of law and the plain language of the state standards. MPCA s Minimum Data Requirements and Monitoring Strategy Prevent the Agency from Identifying Waters that Exceed River Eutrophication Standards Under the Clean Water Act, states must assess whether waterbodies are meeting designated uses and identify those waters that are not meeting designated uses. 33 U.S.C. 1313, However, the minimum data requirements established in MPCA s Assessment Guidance, along with a badly mismatched monitoring program have, crippled the state s ability to assess compliance with the state s river eutrophication standards. As a result, many waters that do not meet designated uses will not be listed, 12 MCEA agrees that any waters that exceed the standards as a long-term average should be included on the state s 303(d) impaired waters list. 13 Minn. R , Subp. 2b, 3b, 4b. 14 Minn. R , Subp. 4, DD. 4

5 and MPCA has identified the vast majority of waters in the state as having insufficient data to determine use support or impairment. MPCA will not use phosphorus, chlorophyll-a, BOD, or ph data to assess whether a river or stream meets river eutrophication standards unless the agency has collected at least 12 paired samples of phosphorus and a response variable over 2 summers (June- September). 15 However, Minnesota s monitoring and assessment approach will rarely result in data sufficient to meet these arduous data minimum requirements because: Samples are collected too infrequently: the agency only conducts intensive watershed monitoring in each major watershed every 10 years for example, MPCA conducted intensive watershed monitoring in the Kettle River watershed in 2006 and again in Intensive watershed monitoring does not meet MPCA s data minimums: during a summer of intensive watershed monitoring MPCA only collects 10 water chemistry samples in major tributary streams and a single water chemistry sample in minor watersheds. 17 Relevant data is not collected: the monitoring strategy does not provide for the collection of data on BOD, Diel DO Flux, and periphyton pollutants critical to determining whether high phosphorus levels in a wadeable stream are causing eutrophic conditions. 18 In addition, MPCA will not identify a river or stream as impaired if available data confirm an exceedance of the river eutrophication standards in one summer, but the agency has not collected data on the same parameter(s) in any other summers. 19 For example, the Elk River, AUID , clearly exhibits a negative response to high phosphorus levels (only nine of 51 samples collected in this segment of the river MEET the chlorophyll-a standard), but MPCA did not include Elk River on its 303(d) impaired waters list because all of the chlorophyll-a data points were collected during one summer season. MPCA is simply not collecting enough data to meet its own requirements and even when it does perform intensive watershed monitoring, the agency is failing to collect the right data to assess compliance with river eutrophication standards. After 8 years of intensive watershed monitoring, MPCA has collected some phosphorus data in about 3200 river and stream segments (AUIDS). 20 However, MPCA has collected enough phosphorus data to meet its minimum data requirements in only 1178 stream and river segments and has 15 Assessment Guidance at 62; MPCA Presentation, 2016 Impaired Waters List Special meeting on river nutrient assessments, July 26, 2016, Slide 8). 16 Minnesota Water Quality Monitoring Strategy , MPCA, September 2011, at Approach to Condition Monitoring and Assessment, MPCA, August 2008, at 4; 18 Minnesota River Nutrient Criteria Development MPCA January 2013, at 45, 50; 19 Assessment Guidance, at Across the state there are over 8000 individual AUIDs for river and stream segments. 5

6 collected enough data to meet its data minimums for one or more response parameters (chlorophyll-a, BOD, Diel DO flux, or ph) in just 437 streams and river segments. 21 Finally, MPCA has not followed through on its commitment to collect sufficient data in the thousands of river and stream segments for which it has not met its own data requirements. When it sought approval of the river eutrophication standards, MPCA assured EPA that it would develop a study list that included rivers and streams that exceed the phosphorus threshold but for which the agency had not yet evaluated compliance with the response thresholds, chlorophyll-a, Diel DO Flux, BOD5, and ph. 22 For waters on the study list, MPCA pledged to collect the data necessary to assess compliance with those thresholds. 23 However MPCA has provided no such study list, or timeline for collecting the necessary data, and its Assessment Guidance suggests a different strategy: where the agency lacks 12 phosphorus samples over two summers, a river or stream is only prioritized for follow-up monitoring if response data both 1) meet minimum requirements; AND 2) exceed thresholds. 24 Of the thousands of river and stream segments with fewer than 12 phosphorus samples, only 8 (0.6%) would be prioritized for follow-up monitoring because they have 12 or more samples of a response variable and that response data shows that thresholds are exceeded (three ph and five Diel DO flux). 25 There is no indication in the Assessment Guidance that MPCA intends to collect additional data in the remaining 99.4 percent of these rivers and streams until the next round of intensive watershed monitoring is performed 10 years later. Further, there is no indication that MPCA will collect any more comprehensive, or sufficient, data next time it conducts intensive watershed monitoring than it did the first time. MPCA must revise its minimum data requirements and monitoring strategies so as not to create a 303(d) list that consists primarily of waters with insufficient information to assess compliance with river eutrophication standards, and to ensure that all waters that exceed standards are included in the state s 303(d) list. In addition, MPCA must commit to collecting sufficient data on those waters for which it has partial data indicating phosphorus and/or response variables that exceed criteria. MPCA Has Not Collected Enough Data To Determine Whether Any Rivers and Streams Exceed the Statewide Periphyton Standard. MPCA established an independent periphyton water quality standard that may not be exceeded in any Class 2 rivers and streams more than 1 in 10 years a measure that is particularly helpful in assessing the impact of excess phosphorus in wadeable streams that are more likely to grow periphyton algae than sestonic algae. 26 Yet, MPCA has not collected sufficient data on any river or stream segments to assess whether the water 21 MPCA Presentation, 2016 Impaired Waters List Special meeting on river nutrient assessments, July 26, 2016, Slide Letter from Flood to Hyde, at Id. 24 Assessment Guidance, at 69 (Appendix G). 25 Exhibit D includes a list of these waters. 26 See Minn. R , Subp. 2b, 3b, 4b, and the Statement of Need and Reasonableness Supporting Promulgation of those sections. 6

7 exceeds the standard in more than one in ten years. In fact, MPCA has collected periphyton data in only 7 streams and for only one year in each stream. 27 Federal law requires that MPCA identify all waters that do not meet any applicable water quality standard. 28 MPCA may not establish water quality standards and then simply refuse to determine whether waters meet or exceed the standards. MPCA Must List As Impaired Those Waters that Exceed Narrative Standards Due to Elevated Nitrate Levels MPCA must include waters that exceed the state s draft nitrate water quality standards on the state s 303(d) impaired waters list because those waters exceed Minnesota s narrative water quality standards and do not support designated uses. The Federal Clean Water Act requires that MPCA identify waters that exceed either numeric or narrative water quality standards or designated uses. 29 However MPCA has failed to include waters that exceed the state s water quality standards due to nitrate-caused aquatic toxicity on the state s 303(d) list. In Minnesota, Class 2A waters shall be of a quality as to permit the propagation and maintenance of a healthy community of cold water sport or commercial fish and associated aquatic life, and their habitats. 30 Class 2B waters shall be of a quality as to permit the propagation and maintenance of a healthy community of cool or warm water sport or commercial fish and associated aquatic life, and their habitats. 31 Minnesota also has narrative and draft numeric water quality standards for nitrate to protect aquatic life for all Class 2 waters. The narrative standard provides: the aquatic habitat, which includes the waters of the state and stream bed, shall not be degraded in any material manner, there shall be no material increase in undesirable slime growth or aquatic plants, including algae, nor shall there be any significant increase in harmful pesticide or other residues in the waters, sediments, and aquatic flora and fauna; the normal fishery and lower aquatic biota upon which it is dependent and the use thereof shall not be seriously impaired or endangered, the species composition shall not be altered materially, and the propagation or migration of the fish and other biota normally present shall not be prevented or hindered by the discharge of any sewage, industrial waste, or other wastes in the waters See Exhibit E U.S.C (d), 40 C.F.R (b)(3) C.F.R (b)(3). 30 Minn. R , Subp Minn. R , Subp Minn. R , Subp. 7. A; See also , Subp. no sewage, industrial, or other wastes from point or nonpoint sources shall be discharged into any [Class 2 waters] so as to cause any material change in any other substances, characteristics, or pollutants which may impair the quality of the waters of the state or the aquatic biota of any [Class 2 waters] or in any manner render them unsuitable or objectionable for fishing, fish culture, or recreational uses... 7

8 In 2010, MPCA published draft numeric aquatic life criteria to prevent chronic nitrate toxicity: 3.1 mg/l for cold water streams and 4.9 mg/l for warm water streams. 33 MPCA must include waters that exceed its draft numeric nitrate standards identified by MCEA in Appendix C on its 303(d) impaired waters list as impaired for aquatic life. MPCA Must List Waters That Exceed the EPA Approved Sulfate Standard on the State s 303(d) Impaired Waters List Every two years MPCA must submit to EPA a list of impaired waters that includes waters failing to meet water quality standards adopted by the state and approved by EPA. 34 Minnesota adopted, and EPA approved, a sulfate standard of 10 mg/l for Class 4A waters to protect the designated use of wild rice growing. 35 MCEA is concerned that the draft 303(d) list does not include impairments of wild rice waters for sulfate where existing data indicate levels that impact aquatic life. MCEA shared this concern in its 2012 comments on the state s draft 303(d) list and was told that MPCA would include wild rice waters on the 2014 list. 36 Two years later, MPCA did not include the waters on its draft 2014 list, but indicated that it would identify waters impaired for sulfate in a separate impaired waters submittal to allow time to 1) develop factors to identify waters used for production of wild rice, identify wild rice waters, and assess the status of those waters, and 2) review the draft wild rice sulfate assessment methodology in light of new data and analysis from the Wild Rice Sulfate Standard study. 37 Further delay is unwarranted and MPCA must include on its (d) impaired waters list all waters that fail to meet the applicable sulfate standard. Conclusion MPCA must revise its 303(d) impaired waters list to include those waters specifically identified by MCEA in Appendix A (waters that exceed state standards for phosphorus and one or more response variable and meet MPCA s current data minimum requirements), Appendix B (waters that exceed state standards for phosphorus and one or more response variable based on 8-11 samples), and Appendix C (waters that exceed Minnesota s draft numeric nitrate standards). In addition, MPCA must revise its Assessment Guidance and listing protocol to ensure all waters that exceed the state s river eutrophication standards are identified as impaired. Specifically, MPCA must list as impaired 1) waters that exceed the EPA approved water quality standards for the Southern Nutrient Region; 2) waters that exceed the phosphorus standard and any one or more response thresholds, regardless of whether sestonic algae growth has been documented; and 3) waters that exceed the river 33 Developing Surface Water Nitrate Standards and Strategies for Reducing Nitrogen Loading, MPCA (December 2010); See also Aquatic Life Water Quality Standards Technical Support Document for Nitrate Triennial Water Quality Standard Amendments to Minn. R. chs and 7052, DRAFT For External Review, MPCA (November 12, 2010) C.F.R ; (d). 35 Minn. R MPCA Responses to the draft 2012 Total Maximum Daily Load List 30-Day Public Notice Comments, September 7, MPCA Responses to the draft 2014 Impaired Waters List 30-Day Public Notice Comments, April 1,

9 eutrophication standards in any summer. MPCA must also revise its arduous data minimum requirements to ensure its listing methodology does not thwart implementation of its river eutrophication standards. Further, MPCA must revise its monitoring approach to ensure adequate water quality data is collected to assess whether rivers and streams are meeting river eutrophication standards. Finally MPCA must include waters that exceed its EPA approved sulfate water quality standard on the state s 303(d) impaired waters list. Sincerely. Kris Sigford Water Quality Director Betsy Lawton Water Quality Associate 9