What is that in the Water?

by Ken Midkiff, Chapter Conservation Chair

Another dreary meeting in a large conference room at Jefferson City’s Capitol Plaza Hotel. All chairs were occupied. All attention was directed to six commissioners appointed by Governors Holden and Blunt.

Months of work on the Water Quality Standards culminated in a meeting of the Missouri Clean Water Commission on Wednesday, September 7. The issue was whether or not streams would be designated for “Whole Body Contact.” While this sounds mundane and esoteric, the federal Clean Water Act directed that ALL waterbodies in the United States be capable of supporting aquatic life (fishable) and supportive of recreation in and on the water (swimmable) by 1983.
1983 was a long time ago—22 years to be exact. For those 22 years, Missouri avoided complying with the Clean Water Act. The state would have likely done so for an additional 22 years were it not for a lawsuit brought by the Missouri Coalition for the Environment against the U.S. Environmental Protection Agency (EPA). The suit contained a number of points, but all of these points were based on one thing: The U.S. EPA had failed to cause Missouri to comply with the Clean Water Act.

Bear Creek was to be removed / exempted from the “Whole Body Contact” list, even though it is used for swimming, flows through the city limits of Columbia, the city’s Greenbelt hiking/biking trail parallels it and it runs through a low-income community of color. Thanks to Sierra Club alerts asking residents who used this streams for swimming to write letters to the Clean Water Commission, it is now protected for Whole Body Contact. P hoto by Ken Midkiff

There was one caveat in the “swimmable, fishable” standard. That caveat is that standards for these designated uses are to be achieved “where attainable.” This was added almost as an afterthought by the U.S. Congress, but Sewage Treatment Districts and MDNR’s Water Protection Program promptly grabbed onto this caveat and drove a honey wagon through the loophole. (These folks had no problem with the “fishable” standard, because that involves temperature, dissolved oxygen, and other compounds that are either not released or that Sewage Treatment Plants don’t impact).

The standard for “whole body contact” is based on bacteria levels. These must be such that contacting the water is not harmful to human health. Akin to most Water Quality Standards, there are Numeric Standards and the numbers for bacteria are based on E Coli. The protective minimal standard is 126 Colony Forming Units per 100 milliliter – written as 126CFU100ml. Anything above that level can cause infections, diarrhea and vomiting, and really high levels (such as those in the floodwaters of New Orleans) are fatal.

But, Sewage Treatment Districts wanted to keep doing what they had been doing: discharging germ-laden wastewater into our state’s streams, rivers, and lakes. To do this, they had to do a “Use Attainability Analysis” (UAA) that demonstrated that no one ever had, was not now, and would likely not in the future engage in activities that resulted in whole body contact.

There was, however, one stick in this spoke: The UAA had to be sent out for public comment. Most of the analyses were conducted by alleged* environmental consulting firms, and, while most of them did a fairly good job of assessing the creeks for physical features (depth, stream banks, surrounding lands, etc.), they did a fairly lousy job of interviewing people who used the creek for something other than germ-laden discharges.

Since the Missouri Department of Natural Resources (MDNR) was not particularly interested in obtaining citizen comments that might dispute the UAA’s, that task fell by default upon the Sierra Club to get the word out that re-designation was being considered. MDNR did appoint review committees to make decisions about which streams to keep or to remove from the designation of Whole Body Contact. But, not until it was pointed out that it was required by federal law that the UAA’s be subjected to public comment did MDNR consent to accept such.

At the September 7 meeting of the Missouri Clean Water Commission, the efforts of the Sierra Club came to fruition. The Clean Water Commission added back 31 streams that the UAA’s had shown were not subject to whole body contact. Those 31 streams — all “receiving waterbodies” of Sewage Treatment Plants — were added due to CITIZEN COMMENTS. The Clean Water Commission listened and acted.

What Did the Sierra Club Do?
Well, we didn’t file the lawsuit. But once the Consent Decree and Settlement Agreement were in place, we set to work to ensure that Missouri’s rules met the federal requirements. Angel Kruzen, myself, and many, many others wrote press releases, placed OpEds in several newspapers, alerted Stream Teams, alerted citizens who live downstream, assisted with Letters to Editors of regional newspapers and gave presentations to persons and groups concerned that Sewage Treatment Plants would continue to foul the streams in which whole body contact occurred.

Angel and I have also participated in MDNR Water Quality Working Groups (we’re on one now that addresses Wet Weather Discharges and Combined Sewer Overflows), participated in Water Quality Forums, and addressed the Clean Water Commission on at least two occasions. We submitted voluminous comments on the new Water Quality Standards, submitted general comments on the UAA process and on specific UAA’s. Thanks to the efforts of the Sierra Club, concerned citizens throughout this state submitted comments on the UAA that dealt with “their” creek.
Our Continuing Concerns

The Clean Water Commission, while it did listen to these concerned citizens, adopted Water Quality Standards that complied at least partially with the concerns of the EPA as stated in a letter of September 2000, and that were memorialized in the Consent Decree and Settlement Agreement of more recent vintage.

Paddy Creek (Texas County) was afforded NO protection in the past, even though its watershed is totally contained with the federally-designated Paddy Creek Wilderness Area and it flows through a picnic area and campground. Ken Midkiff gave a presentation to the Clean Water Commission several months ago, with slides showing swimming in Paddy Creek. The stream is now fully protected for Whole Body Contact. Photo by Ken Midkiff

One area, for example, that we can support is the absolute prohibition of new discharges into the Ozark National Scenic Riverways “or any drainages thereto.” This simple statement means that there can be no mine de-watering (with toxic heavy metals and other contaminants) into the Jacks Fork, Current or Eleven Point rivers. We insisted that the only way to prevent pollution was through outright prohibition.

Not so with Outstanding State Resource Waters. In some ways, there was a weakening of protective standards. The Ozark Chapter of the Sierra Club believes, for example, that in-stream sand-and-gravel mining causes significant harm to Ozark streams (there is no such mining outside of the Ozarks) and that such operations should be prohibited in Outstanding State Resource Waters. Right now, there is a harmful operation on Spring Creek, which feeds into the North Fork of the White, and which is causing considerable harm. Yet the Land Reclamation Program of MDNR issued a permit to this operation, and the operator is violating even the minimal conditions of this permit. We will continue to document violations of this and other sand-and-gravel operations. It is our intent to present such evidence and information to the Land Reclamation Commission.

Other Issues of Concern

• Several streams were designated for “Secondary Contact Recreation,” which involves water sports — canoeing, kayaking, wading, and fishing — where contact with the water is “incidental.” It is our belief that the federal Clean Water Act does not address INTENT. It doesn’t matter if you intend or not to take a dip; what matters is what happens.
• There are significant bodies of water in St. Louis City and County that, by action of the Commission, were removed or exempted from the designation of Whole Body Contact. Our primary concerns are the Mississippi River below Lock and Dam 127 (the Chain of Rocks Canal) and the River Des Peres.
• The State of Missouri continues to apply Water Quality Standards only to those streams that are “classified.” Unbelievably, Brush Creek, which flows through The Plaza in Kansas City, is unclassified and therefore has NO “beneficial and designated” use assigned. It is unprotected.
• There is a two-mile limit imposed on germ-laden discharges to waters designated as Whole Body Contact. For instance, it is okay to discharge germ-laden sewage into Brush Creek as long as that is done more than two miles from the confluence with the Blue River. While two miles may be protective of Whole Body Contact, this should not be a hard and fast rule. If there is, for example, a large volume of germ-laden wastewater into a small stream, two miles is not nearly far enough.
• Another area in which the Clean Water Commission refused to make changes was in the area of “losing streams.” These are so designated when surface water in the stream drains into underground conduits and becomes groundwater (i.e., the stream loses water). We had asserted that ALL streams in areas of karst topography be considered as “losing” and the water should have bacterial standards applied that make this water safe for drinking from private residential wells.

There are several other items of concern. We will continue to advocate for these, to the EPA, to MDNR and to the Clean Water Commission, and we will continue to be the watchdog over state and federal water protection agencies.

Our motto is “Pollution Prevention, Not Polluter Protection.”

*“Alleged” because in most cases, Environmental Consulting Firms are engaged in efforts to assist their clients in avoiding environmental laws and regulations.