More work needed on Illinois Nutrient Assessment and Reduction Plans - We filed the following informal comment with IEPA.

To: Joey Logan-Pugh, Darin LeCrone, Brant Fleming

From: Albert Ettinger, Mila Marshall, Rob Michaels

Re: Informal comments on nutrient assessment and reductions plans (NARPs) that have been submitted to IEPA August 16, 2024

I. Introduction and Recommendations

We have reviewed the nutrient assessment and reduction plans (NARPs) and related documents (the Chicago Area Waterways phosphorus assessment and reduction plan (PARP), nutrient implementation plans (NIPs) and Fox River Study Group reports) that appear on the IEPA website at https://epa.illinois.gov/topics/water-quality/watershed- management/narps.html.

We believe that many of these NARP documents contain important data. In some cases, some very useful analysis was performed. Also, without regard to the NARPs, we know much useful work has also been done relating to nutrient pollution and cultural eutrophication with regard to sewage treatment plan upgrades and dam removal.

However, understandably given the novelty of the task, the lack of existing data, the need to address PFAS, chloride and other pollutants, and the Covid 19 pandemic that occurred during much of the time in which the NARPs were to be prepared, none of the NARPs that have been submitted fulfill the requirements of the permit conditions of NPDES permits requiring the preparation of NARPs.

In addition, we oppose relying on the current NARP documents to write NPDES permits due to the lack of community outreach and stakeholder engagement as to almost all of the NARPs. It is unacceptable for decisions regarding implementation of projects that impact the quality of surface water and resources of surrounding and downstream communities to wastewater treatment facilities. This kind of top-down approach only serves to alienate and disenfranchise the very people who should have a say in shaping their shared environments. We ask that proper consultation and engagement be conducted before NARPS are accepted. We further urge IEPA to explicitly interpret meaningful stakeholder engagement using the documents we have provided and finally provide an updated calendar for NARP public outreach opportunities.

Although the permit language varied somewhat among the two or three dozen NPDES permits requiring the preparation of NARPs, all of the NARP conditions required essentially that the permittee was to:

- With stakeholders,
- determine a “target value” for phosphorus (P) in the water body or bodies
which it affects that will eliminate the P impairment or “risk of eutrophication,”
and
- develop a plan for getting P levels in the water body or bodies down to the
target value or lower.i

Unfortunately, most of the permittees and their consultants did not involve stakeholders despite efforts by the Sierra Club to help them do so. Further, with the exception of the NARPs developed by the Conservation Foundation, Tetratech and Midwest Biodiversity Institute (“CF/Tetra/MBI”) that will be discussed further below, the NARPs set no target criteria for ambient phosphorus levels. Without a target, those NARPs necessarily developed at most vague plans to reduce P loadings and contain no analysis of how to get phosphorus levels down in rivers and streams to where they do not present risk of eutrophication.

To cut to the chase, we believe that the Agency should reject all of the NARPs that have been submitted and give all of the permittees with NARP requirements until the end of 2025 to fulfill the NARP requirements.ii This should allow the work to be completed with the benefit of science and data that can be developed over the coming year. The agency appears to have already begun moving in that direction as shown by the draft NPDES permit for the Village of Deerfield.

As to almost all the NARPs, community outreach and engagement experiences were either not completed or poorly reported and represented. IEPA should give direction and take affirmative steps to support collaboration and development of watershed groups for NARP holders to work together.

Further, we believe that each permittee with NARP requirements should be required to present a draft revised NARP to stakeholders in their watershed no later than several months before they are due to be sent to the Agency. They should involve stakeholders, including our organizations, well before that.

II. Some General Problems

Some of us have already commented on specific NARPs (see attached comments) but we would like to point out general problems that we have seen in a number of the NARPs.

Stakeholder process

While we do not wish to belabor the past, we believe that a greater effort must be made in the future to bring community, environmental, agricultural and business interests into the NARP process up front. Without doing this, it is impossible to formulate a reduction plan that has any level of detail or that will work.

We recognize that it is not possible to force non-permittees to come to the table but both local organizations and state organizations that may be in a position to give input regarding NARPs should be clearly invited to participate. It is not acceptable for those writing NARPs to keep the process as something between the permittee and its consultant until it is sent to IEPA, perhaps after being flashed by a local committee. Also, promises to involve stakeholders in the future do not satisfy the requirement to involve stakeholders in the development of the NARPs.

Target Levels

As mentioned above, except for the CF/Tetra/MBI NIPs, none of the NARPs identify specific water quality targets for the affected rivers and streams and, thus, they necessarily fail to provide specific steps to reach such targets. Indeed, these NARPs fail to provide details for any reductions beyond the reduction to 0.5 mg/L total phosphorus (TP) in sewage treatment plant effluent, to which sewage treatment plants are already committed.

Under the NARP special permit conditions, a proper NARP must identify the numeric phosphorus per liter target for the water body that will prevent eutrophication. Modeling based on uncalibrated or inadequate data will not set an ambient target for point and nonpoint sources.iii

Further, NARP targets cannot rest solely on consideration of the proper effluent levels of sewage treatment plants, although, of course, selecting acceptable treatment plant phosphorus effluent levels will be very important in developing a plan to get TP levels down to the NARP target and to making the necessary case for a variance to the Illinois Pollution Control Board under 35 Ill. Adm. Code 104 subpart E.

It is probably easiest and most correct to use the science-based Wisconsin target of 0.1 mg/L.

Further, we must caution that it is highly improbable that a proper target level can be set much above 0.1 mg/L total phosphorus. That was the level adopted in Wisconsin after much study of the waters of that neighboring state. See also Dodds, Jones and Welch, Suggested Classification of Stream Trophic State: Distribution of Temperate Stream Types for Chlorophyll, Total Nitrogen and Phosphorus, Wat. Res. Vol 32 No.5 (1998) p. 1457 (streams with over .075 mg/L TP eutrophic.

A study that looked at numerous Illinois waters found that there was a close correlation between phosphorus levels and sestonic algae levels at sites with sufficient sunlight up to a level of 0.2 mg/L but that there was no relationship above .2 mg/L. Royer, T., Gentry, L., Mitchell, C., Starks, K., Heatherly II, T. and Whiles, M., Assessment of Chlorophyll a as a Criterion for Establishing Nutrient Standards in the Stream and Rivers of Illinois, Journal of Environmental Quality, Vol. 37 March-April 2008 p. 440-41. In other words, above 0.2 mg/L Illinois water bodies are essentially phosphorus saturated.

We should not expect, then, to see a difference in unnatural plant or algal growth between waters with 0.3 mg/L and 0.6 mg/L or expect that models will predict substantial differences in dissolved oxygen levels or unnatural plant or algal growth if they do not consider ambient levels of phosphorus well below 0.2 mg/L TP. A protective standard will limit pollution at levels well below the level at which it does not matter anymore.

For impounded waters, it is likely that the protective level for phosphorus will be far below 0.2 mg/L TP. The Illinois lake phosphorus standard is 0.05 mg/L and recently developed U.S. EPA criteria guidelines suggest still lower numbers for lakes.iv For this reason, dam removal may be an important component of a NARP.

The NARPs that were prepared by the DuPage River Salt Creek Workgroup and the Lower Des Plaines do attempt to set a target level.v However, as further explained in attached comments, these CF/Tetra/MBI NIPs:

- Do not address dissolved oxygen levels or unnatural plant or algal growth, which are underlying water quality standards at issue,vi but instead attempt to relate phosphorus levels to the health of the aquatic community,vii
- Protection of aquatic life is certainly an important goal but these NARPs are not in fact protective of aquatic life because the criteria set for TP, 0.28 mg/L, is set well above the level at which damage to aquatic life is evident assuming the validity of the CF/Tetra/MBI study.
Although the line drawn for protection of aquatic life is far higher than anything that could be called “protective,” we have no reason to challenge the validity of the data collected or the relation between phosphorus levels and the health of certain aquatic life. A properly chosen number based on this CF/Tetra/MBI work should place a ceiling on the phosphorus water quality criteria necessary to protect aquatic life for at least Northeast Illinois rivers and streams.viii

Reduction Plans

A NARP “shall identify phosphorus input reductions from point sources and non-point sources in addition to other measures necessary to remove the risk of eutrophication characteristics that will cause or may cause violation of a water quality standard.”ix This requires at a minimum a real plan as to how to achieve the target value. If, for example, it is found that DO violations caused by phosphorus or unnatural plant or algal growth may occur if total phosphorus levels are greater than 0.08 mg/L, a plan should be developed by stakeholders as to how to reduce phosphorus loadings from all sources in order to reach that level.

Obviously, in watershed in which the vast bulk of the phosphorus comes from non-point sources, it will not be possible to reach the target level simply by tightening permit limits. However, as the permit language makes clear, even in the case of watersheds where most phosphorus comes from non-point sources, NARPs must include a detailed plan as to how to get P levels in affected water bodies down to target levels.

In this regard, we note that animal feeding operations (AFOs) have been found to be a major source of phosphorus in some areas. Phosphorus from AFOs may be point source pollution and, in any case, a NARP should attempt to identify situations where AFOs are a significant source of phosphorus in the watershed.

Whatever the sources the phosphorus pollution, it may well take time, money and effort to implement a proper NARP. Indeed, it may be necessary to obtain, through evidence presented to the Illinois Pollution Control Board, a variance, pursuant to 40 CFR 131.14 and 35 Ill. Adm. Code 104 subpart E, based on the scientific and economic factors that have been identified by the U.S. Environmental Protection Agency, IEPA and the IPCB.

The agency cannot know if a variance is necessary if the NARP does not set a proper target, identify the highest attainable use for waters affected by phosphorus pollution, and develop a detailed plan for attaining the target as soon as it is attainable. A NARP or a variance that delays meeting the target for years or decades must be supported by economic studies showing that earlier compliance is not attainable. 40 CFR 131.14(b)

In any event, we look forward to working with the Agency and other Illinois residents who seek to restore and maintain Illinois waters to eliminate impairments and cultural eutrophication to the extent possible.

Notes

i For example, SPECIAL CONDITION 20 of the NPDES permit for Pontiac states.

The Agency has determined that the Permittee’s treatment plant effluent is located upstream of a waterbody or stream segment that has been determined to be at risk of eutrophication due to phosphorus levels in the waterbody. This determination was made upon reviewing available information concerning the characteristics of the relevant waterbody/segment and the relevant facility (such as quantity of discharge flow and nutrient load relative to the stream flow).

A waterbody or segment is at risk of eutrophication if there is available information that plant, algal or cyanobacterial growth is causing or will cause violation of a water quality standard.

The Permittee shall develop, or be a part of a watershed group that develops, a Nutrient Assessment Reduction Plan (NARP) that will meet the following requirements:

The NARP shall be developed and submitted to the Agency by December 31, 2024. This requirement can be accomplished by the Permittee, by participation in an existing watershed group or by creating a new group. The NARP shall be supported by data and sound scientific rationale. Annual progress reports shall be submitted by March 31 each year.
The Permittee shall cooperate with and work with other stakeholders in the watershed to determine the most cost-effective means to address the risk of eutrophication. If other stakeholders in the watershed will not cooperate in developing the NARP, the Permittee shall develop its own NARP for submittal to the Agency to comply with this condition.
In determining the target levels of various parameters necessary to address the risk of eutrophication, the NARP shall either utilize the recommendations by the Nutrient Science Advisory Committee or develop its own watershed-specific target levels.
The NARP shall identify phosphorus input reductions from point sources and non-point sources in addition to other measures necessary to remove the risk of eutrophication characteristics that will cause or may cause violation of a water quality standard. The NARP may determine, based on an assessment of relevant data, that the watershed does not have a risk of eutrophication related to phosphorus, in which case phosphorus input reductions or other measures would not be necessary. Alternatively, the NARP could determine that phosphorus input reductions from point sources are not necessary, or that phosphorus input reductions from both point and nonpoint sources are necessary, or that phosphorus input reductions are not necessary and that other measures, besides phosphorus input reductions, are necessary.
NARP shall include a schedule for the implementation of the phosphorus input reductions and other measures. The NARP schedule shall be implemented as soon as possible and shall identify specific timelines applicable to the permittee.
The NARP can include provisions for water quality trading to address the phosphorus related risk of eutrophication characteristics in the watershed. Phosphorus/Nutrient trading cannot result in violations of water quality standards or applicable antidegradation requirements.
The Permittee shall request modification of the permit within 90 days after the NARP has been completed to include necessary phosphorus input reductions identified within the NARP. The Agency will modify the permit if necessary.
If the Permittee does not develop or assist in developing the NARP and such a NARP is developed for the watershed, the Permittee will become subject to effluent limitations necessary to address the risk of eutrophication. The Agency shall calculate these effluent limits by using the NARP and any applicable data. If no NARP has been developed, the effluent limits shall be determined for the Permittee on a case-by-case basis, so as to ensure that the Permittee’s discharge will not

cause or contribute to violations of the dissolved oxygen or narrative offensive condition water quality standards.

ii Further extensions might be granted by IEPA to permittees that collect new data shown necessary to complete their NARP.iii More discussion of this problem is provided in the attached comments on the Chicago Area Waterways PARP, the FRSG report and the Upper Des Plaines River NARP.iv https://www.epa.gov/nutrientpollution/ambient-water-quality-criteria-address-nutrient-pollution-lakes- and-reservoirsv It is our understanding that the model for the Lower Des Plaines is being developed further.

vi Specifically, the relevant DRSC permits state, “The Permittee shall submit electronically to EPA.PrmtSpecCondtns@illinois.gov with “IL0028380 Special Condition 17.H” as the subject of the email and post to the DRSCWs website by December 31, 2023 a Nutrient Implementation Plan (NIP) for the DRSCW watersheds that identifies phosphorus input reductions by point source discharges, non-point source discharges and other measures necessary to remove DO and offensive condition impairments and meet the applicable dissolved oxygen criteria in 35 Ill. Adm. Code 302.206 and the narrative offensive aquatic algae criteria in 35 Ill. Adm. Code 302.203.”

vii Because unnatural plant and algal growth can cause problems in addition to harm to aquatic life, aquatic life cannot be the exclusive focus. Such unnatural plant and algal growth can also render water bodies less suitable for recreation and as a source of drinking water.viii The concentration to prevent unnatural plant or algal growth might be much lower than 0.1 mg/L but we do not know because no one apparently has looked.

ix See note I above.