Division of Surface Water Response to...

Division of Surface Water Response to Comments

Rule: Water Quality Standards Program: OAC Chapter 3745-1-13: Central Ohio tributaries drainage basin. Agency Contact for this Package: Division Contact: Dan Dudley

Division of Surface Water 614-644-2876 [email protected]

Comments from Trent Dougherty on behalf of Ohio Environmental Council (OEC)

and John Stark on behalf of The Nature Conservancy in Ohio (TNC)

Comment: [Summarized] Both organizations commended the Agency for its work and expressed support for the proposed aquatic life use designations of streams in the assessed watersheds. The importance of protecting these aquatic resources was stressed, particularly in watersheds containing eastern hellbender habitat and other state or federally listed species.

Response: Ohio EPA appreciates the strong support that both OEC and TNC have expressed in their comments. The Agency has not made any revisions based on these comments.

Comments from Megan Hunter on behalf of FreshWater Accountability Project

Grassy Run, Longs Run, and Little McIntyre Creek Comment: [Summarized] The Agency should retain the Coldwater Habitat (CWH) designation.

Ohio EPA held a proposed rule comment period from December 21, 2016 to February 16, 2017 regarding the beneficial use designations in one drainage basin. 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 response to comments regarding designation of Coldwater Habitat streams the Agency placed the rule in to be re-filed status with JCARR on March 3, 2017. Ohio EPA is now re-filing rule 3745-1-13 with JCARR with no action taken on CWH designations.

The original comments letters received during the proposed rule comment period are attached. The following text provides a summary of the comments, the principle issues that have been raised and the Agency’s response. A set of tables provides information on what use designation action is being take on each stream.

mailto:[email protected]

Rule Package: OAC Rule 3745-1-13 Response to Comments April 2017 of 13

FreshWater Accountability Project (FWAP) questions the legality of designating these streams warmwater habitat (WWH). FWAP presents three arguments for retaining the CWH:

• Trout stocking – These streams were designated CWH in 1978, purportedly because of an Ohio DNR trout stocking program.

• Prior existing use status – If the CWH use was in fact attained, then state and federal regulations on antidegradation policy prohibits the removal of an existing use attained after 1975.

• Capable of supporting – Documenting the presence of coldwater fish is unnecessary because the rule states “these are waters capable of supporting populations of native coldwater fish.”

Response:

After placing this rule in the to-be-refiled status on March 3, 2017 the Agency re-assessed two comments on CWH discussed below on pages 3 and 4. That re-assessment prompted the Agency to temporarily place a hold on all proposed changes involving the CWH use designation. Thus, the proposed rule has for the time being retained the previously assigned CWH designations for the three streams referred to in this comment. In response to your specific comments the Agency responds as follows.

Trout stocking - The following text is from the 2010 study plan. Ohio EPA has no other record to confirm trout stocking occurred.

“In addition, the entire Cross Creek basin upstream from McIntyre Creek received a Coldwater Habitat designation (*C) in the original WQS based on ODNR trout stocking activity.”

Prior existing use status – The CWH use includes “inland trout streams” and a narrowly defined set criteria must be satisfied for the use to apply. The Agency has contacted the Division of Wildlife, Ohio DNR to confirm that the trout stocking programs in this area of the state do not meet the criteria set out in rule (see Attachment 1). Native coldwater fish have not been collected from these streams per Ohio EPA fish collection records dating back to 1978. Therefore, there is a lack of evidence to document that CWH was an existing use attained in these streams after 1975.

Capable of supporting – The Agency samples stream and rivers using fish and macroinvertebrates for the purposes of assessing water quality conditions and assigning appropriate aquatic life uses. Although the rule does include the phrase “capable of supporting”, as a matter of operational policy, it is the Agency’s practice to designate streams CWH upon showing that coldwater fish and macroinvertebrates are inhabiting the stream on an annual basis.

Duck Creek tributaries Comment: [Summarized] The unnamed tributaries at East Fork (RM 5.73) and West Fork Duck Creek (RM 2.30 and RM 3.05) should be designated WWH. FWAP objects to the proposed rule that would assign the Limited Resource Water (LRW) and Modified Warmwater Habitat (MWH) designations because it is counter to the CWA's stated objective of restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters.

Response: The Agency appreciates and understands the general position expressed by FWAP. However, based on the information currently available to the Agency we believe the proposed


use designations for these three streams are supported by the data. The entire Duck Creek watershed is scheduled for biological and water quality sampling in 2020. The data collected on stream quality and the information gathered regarding past and ongoing watershed restoration efforts will allow a re-assessment of these aquatic life designations. The CWA requires a review of waters with a less than goal use designation every three years.

Comments from Stephen Samuels on behalf of Ohio Valley Coal Company and American Energy Corporation (referred to as ‘the Companies’)

The Companies directed their comments at the aquatic life use designations proposed for three streams located in Belmont County: Piney Creek, Bend Fork and McMahon Creek. The Companies have several facilities under permit along these streams. Their comments critique the water quality data collected by Ohio EPA used to support the proposed use designations. Broadly speaking the Companies claim the following:

1. The proposed rule could “result in significant economic impact to the Companies”. 2. The data collected by the Agency fall short of requirements found in the WQS rules,

associated method manuals referenced in rule and Agency protocols. 3. The Agency erred in its technical interpretation of data that led to improper conclusions

on aquatic life use designations.

The first point is discussed below in a general context as the Companies offered no specific details on which facilities, outfalls or treatment processes might be impacted. Each comment alleging an absence of required data or technical errors has been summarized and a response provided.

Potential for economic impacts Costs associated with changes in WQS at specific locales can vary widely due to site specific factors. The Agency did not receive any comments from the Companies on the Business Impact Analysis (BIA) when it was made available to the public.

To answer question 14 on the BIA form, the Agency researched NPDES permit files. There are fifteen NPDES permits where the change in use designation imposes more restrictive dissolved oxygen and ammonia criteria. In each case, ammonia limits in current permit limits are believed to be protective of the proposed designation. The proposed use changes on two streams would impose more restrictive criteria for dissolved oxygen, ammonia, plus heavy metals and other toxic chemicals. NPDES permits for the facilities on these streams1 can comply with the ammonia criteria and are not significant sources of metals or other toxic chemicals. If a revision to any permittee’s effluent limitations is necessary upon permit renewal due to the revision in stream use designation, the Agency will include a schedule of compliance in the permit to allow the permittee the time to plan and construct any necessary treatment.

Piney Creek Comment: (regarding Issue 2 - missed requirement) Coldwater indicator species do not “predominate” the stream community.

1 St. Clairsville West WWTP (0PA00099), Granatir Apartments (0PW00011).


The Companies claim that the numbers of coldwater fish and macroinvertebrates collected in Piney Creek fall short of “a showing of predominance, not mere presence in the community”2.

Comment: (regarding Issue 2 - missed requirement) Ohio EPA did not do any analysis of the plants in Piney Creek.

The Companies claim the Ohio EPA must determine that “the stream is capable of supporting native cold water fish and associated plants. No such showing has been made.”

Response: After placing this rule in the to-be-refiled status on March 3, 2017 the Agency re-assessed these two comments and has decided to defer all proposed changes in CWH use designations. The comments set forth arguments concerning the need to acquire and evaluate information about vertebrates and plants in addition to fish and macro invertebrates under CWH [OAC 3745-1-07(B)(1)(f)]. The Agency will evaluate this matter and is considering convening an expert panel to review the current CWH rule language and the data necessary to assign that use to a specific stream. In the meantime, we believe the rule should be re-filed promptly so that other use designations changes can go into effect. See the tables at the end of this document for information on how the re-filed rule impacts specific streams.

Comment: (regarding issue 3 - data interpretation) Qualitative vs. quantitative data. The Companies claim data on macroinvertebrates is flawed because qualitative data collection methods were used instead of quantitative methods, and no ICI data is available.

Response: The absence of quantitative data and the resulting ICI score is not pertinent to the assignment of the CWH designation. Ohio EPA method manuals describe two different standardized macroinvertebrate data collection methods. Both methods can characterize the overall condition of the macroinvertebrate community, determine the number of coldwater taxa and provide an indication of their relative abundance. Comment: (regarding issue 3 - data interpretation) Collection of data at only 1 location in 1 year. The Companies claim that a Use Attainability Analysis (UAA) is required by federal regulations and that the sampling done by Ohio EPA on Piney Creek lacks “the rigorous scientific assessment envisioned in a UAA”.

Response: First, States are not required to conduct a UAA when designating waters that support the goals of the CWA as CWH does. Second, Ohio EPA as a matter of policy, does collect the appropriate biological, habitat and chemical/physical data when proposing aquatic life use designation changes in OAC 3745-1. The fact that one sampling station was sampled near the mouth of Piney Creek during one year is typical of the survey design used for streams of this size (drainage area of 10 sq. mi.). By sampling and analyzing the condition of aquatic communities that live year-round in Ohio streams the Agency is effectively assessing the cumulative effects of all environmental variables.

Bend Fork Comment: (regarding Issue 3 - data interpretation) Inadequate number of sites sampled. The Companies claim proposing to change the use from WWH to EWH for nine miles of stream (RM 13.0 to RM 4.0) is not supported by the data collected at a single site, RM 8.4. Companies

2 See the description Establishing Aquatic Life Use Designations, CWH, page 8-5 in Biological Criteria for the Protection of Aquatic Life: Volume II: Users Manual for Biological Field Assessment of Ohio Surface Waters. (1988)


allege there are significant differences is stream features such as flow, gradient and cover along this stretch of stream, but no specific documentation was submitted.

Response: Ohio EPA field crews are trained to select sampling sites that are representative of the stream reach under evaluation and to make note of any significant changes in aquatic habitat features that could affect the biology of the stream. The objective of evaluating aquatic life use along the entire length of Bend Fork relies upon the combined look at all sampling sites and the general quality of stream features along its length. The Agency believes that sampling sites and data collected at RM 8.4, RM 3.6 and RM 0.3 support the EWH designation for the full 13 miles of Bend Fork.

Comment: (regarding Issue 3 - data interpretation) No results reported for MIwb. The Companies point to the lack of a calculated fish community score for Modified Index of well-being (MIwb) as one reason why the EWH designation is not supported.

Response: Fish were sampled at these sites using the headwater method. MIwb calculations are not applicable at headwater sites (see Attachment 3).

Comment: (regarding Issue 3 - data interpretation) Qualitative vs. quantitative data. The Companies claim data on macroinvertebrates is flawed because qualitative data collection methods were used instead of quantitative methods and no ICI data are available.

Response: Ohio EPA method manuals describe two different standardized macroinvertebrate data collection methods. Both methods can characterize the overall condition of the macroinvertebrate community, determine the number of taxa and the presence and relative numbers of species that are indicative of EWH performance.

Comment: (regarding Issue 3 - data interpretation) Stream habitat quality. The Companies claim stream habitat data (QHEI) at RM 8.4 was rated “merely fair” and question the validity of the EWH recommendation since macroinvertebrate densities at this site were described as low.

Response: Table 12 in the Agency’s support document categorizes the overall stream habitat quality at RM 8.4 as good. The presence of bedrock was noted which might account for the observation of low macroinvertebrate densities at this location. The Agency has concluded the EWH designation for Bend Fork is supported by the preponderance of biological and habitat data. McMahon Creek Comment: (regarding Issue 3 - data interpretation) Biocriteria metrics and QHEI scores do not support the EWH designation for a segment of McMahon Creek. The Companies claim their assessment of data collected by Ohio EPA shows the WWH use designation is more appropriate.

Response: The Agency finds the Companies assessment flawed in several ways including:

1) Incorrectly interpreting biocriteria scores in the nonsignificant departure range.

2) Improperly grouping results from multiple stations.

3) Discounting fish and macroinvertebrate data demonstrating full EWH attainment because of lower than anticipated QHEI scores.

The EWH designation is supported by the preponderance of data as reported in the Agency’s support document.


List of stream use designation changes that are being retained and those that are being deferred in the re-file of rule OAC 3745-1-13

Seven (7) existing CWH streams are retained*

pg# Water Body Segment Current Uses Effect of refiled rule 19 Longs Run CWH, AWS, IWS, PCR Retain CWH

Defer WWH in lieu of CWH 19 Little McIntyre Creek –

Friendship Park Lake (RM 0.5) to the mouth

CWH, AWS, IWS, PCR Retain CWH Defer WWH in lieu of CWH

19 Clay Lick Creek CWH, AWS, IWS, PCR Designate EWH and retain CWH 19 Grassy Run CWH, AWS, IWS, PCR Retain CWH

Defer WWH in lieu of CWH 21 Nancy Run CWH, AWS, IWS, PCR Designate EWH and retain CWH 23 Center Fork CWH, AWS, IWS, PCR Designate EWH in lieu of CWH 23 Trail Run

CWH, AWS, IWS, PCR Designate EWH and retain CWH

* There are ten (10) additional CWH stream designations in the effective rule. These designations are not impacted by the proposed or re-filed rule. Twenty-nine (29) proposed CWH streams are deferred; the remaining proposed changes are retained

pg# Water Body Segment Current Uses Effect of refiled rule 5 Little Eightmile Creek None Designate EWH, AWS, IWS, PCR

(defer CWH) 5 Mill Fork None Designate EWH, AWS, IWS, PCR

(defer CWH) 5 Deans Fork WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 6 Irish Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 6 Wilson Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 6 Witten Run EWH, AWS, IWS, PCR (defer CWH) 7 Oldcamp Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 7 Straight Fork WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 7 Biglick Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 7 Trail Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 7 Little Trail Run None Designate EWH, AWS, IWS, PCR

(defer CWH) 7 Dogskin Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH)


pg# Water Body Segment Current Uses Effect of refiled rule 7 Wildcat Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 7 Dismal Creek WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 8 Millers Fork WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 8 Woods Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 8 Rich Fork – headwaters to

Town Fork (RM 1.36) WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

(defer CWH) 10 Opossum Creek –

headwaters to unnamed tributary at 3.16

WWH, AWS, IWS, PCR Designate EWH in lieu of WWH (defer CWH)

13 Crabapple Creek WWH, AWS, IWS, PWS, PCR

Designate EWH in lieu of WWH (defer CWH)

13 Jakes Run WWH, AWS, IWS, PWS, PCR

Designate EWH in lieu of WWH (defer CWH)

19 Cedar Lick creek WWH, AWS, IWS, SCR Designate EWH in lieu of WWH (defer CWH)

21 Rose Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH (defer CWH)

21 Brush Creek – Rose Run (RM 6.32) to the mouth


21 Dennis Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH (defer CWH)

22 Keyhole Run (Town Fork RM 2.35)

None Designate EWH, AWS, IWS, PCR (defer CWH)

22 Long Run – Hildebrand Run (RM 2.48) to the mouth


22 Ralston Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH (defer CWH)

22 Upper North Fork – Hump Run (RM 1.43) to the mouth


22 Hump Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH (defer CWH)


Forty-two (42) proposed CWH streams are deferred; the current uses are retained on34 streams; 8 unlisted streams are assigned water supply and recreation uses

pg# Water Body Segment Current Uses Effect of refiled rule 3 Road Fork - headwaters to

Flag Run (RM 1.38) LWH, AWS, IWS, PCR Defer CWH

3 Wolfpen Run* LWH, AWS, IWS, PCR Defer CWH 5 Sycamore Fork WWH, AWS, IWS, PCR Defer CWH 5 Hog Run WWH, AWS, IWS, PCR Defer CWH 6 Archers Fork – confluence

of Jackson Run and Irish Run (RM 7.46) to Cady Run (RM 4.94)

WWH, AWS, IWS, PCR Defer CWH

6 Little Indian Run None Defer CWH; Designate AWS, IWS, PCR

7 Browns Run WWH, AWS, IWS, PCR Defer CWH 7 Witten Fork – headwaters

to Millers Fork (RM 7.12) WWH, AWS, IWS, PCR Defer CWH

7 Alum Run WWH, AWS, IWS, PCR Defer CWH 8 Buhrs Run WWH, AWS, IWS, PCR Defer CWH 8 Wolfpen Run WWH, AWS, IWS, PCR Defer CWH 8 Brister Fork WWH, AWS, IWS, PCR Defer CWH 8 Left Prong WWH, AWS, IWS, PCR Defer CWH 8 Willison Run None Defer CWH

Designate AWS, IWS, PCR 8 Laurel Run None Defer CWH

Designate AWS, IWS, PCR 8 Unnamed tributary at

Cranenest Fork RM 7.27 None Defer CWH

Designate AWS, IWS, PCR 10 Unnamed tributary at

Opossum Creek RM 4.05 None Defer CWH

Designate AWS, IWS, PCR 12 Joy Fork WWH, AWS, IWS,

PWS, PCR Defer CWH

13 Piney Creek WWH, AWS, IWS, PWS, PCR

Defer CWH

18 Dry Fork – headwaters to unnamed tributary at RM 0.5


18 Dry Fork – Unnamed tributary at RM 0.5 to the mouth

LRW-AMD, AWS, IWS, PCR

Defer CWH

20 Wills Creek WWH, AWS, IWS, PCR Defer CWH 20 Croxton Run WWH, AWS, IWS, PCR Defer 20 Carter Run WWH, AWS, IWS, PCR Defer CWH


pg# Water Body Segment Current Uses Effect of refiled rule 20 Hollow Rock Run WWH, AWS, IWS, PCR Defer CWH 20 Tarburner Run WWH, AWS, IWS, PCR Defer CWH 21 Salt Run – headwaters to

RM 0.3 in Irondale WWH, AWS, IWS, PCR, PWS

Defer CWH

21 Salisbury Run LRW, AWS, IWS, PCR Defer CWH 21 Riley Run – Unnamed

tributary at RM 3.75 to the mouth

WWH, AWS, IWS, PWS, PCR

Defer CWH

21 Unnamed tributary at Riley Run RM 3.75

None Defer CWH Designate AWS, IWS, PCR

21 Town Fork – headwaters to Jefferson Lake (RM 9.0)


22 Carroll Run WWH, AWS, IWS, PCR Defer CWH 22 Hazel Run WWH, AWS, IWS, PCR Defer CWH 23 Elkhorn Creek –

headwaters to Center Fork (RM 5.35)

EWH, AWS, IWS, PCR Defer CWH

23 Strawcamp Run – headwaters to Chase Road (RM 1.2)

EWH, AWS, IWS, PCR Defer CWH

23 Frog Run EWH, AWS, IWS, PCR Defer CWH 23 Wolf Run (aka Wolf Creek) LRW-AMD, AWS, IWS,

PCR Defer CWH

23 Goose Creek WWH, AWS, IWS, PCR Defer CWH 23 Unnamed tributary at

Yellow Creek RM 30.22 None Defer CWH

Designate AWS, IWS, PCR 23 Elk Fork WWH, AWS, IWS, PCR Defer CWH 23 Elk Lick WWH, AWS, IWS, PCR Defer CWH 24 Jethroe Run None Defer CWH

Designate AWS, IWS, PCR


Seventy-nine (79) streams do not involve CWH; the proposed changes are retained in the re-filed rule.

pg# Water Body Segment Current Uses Proposed changes retained in the

re-filed rule 2 East Fork Duck Creek LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 2 Unnamed tributary at Paw

Paw Creek RM 0.73 None Designate EWH, AWS, IWS, PCR

2 Unnamed tributary at Paw Paw Creek RM 5.63

None Designate EWH, AWS, IWS, PCR





2 Unnamed tributary at East Fork Duck Creek RM 4.15

None Designate WWH, AWS, IWS, PCR

2 Unnamed tributary at East Fork Duck Creek RM 5.73

None Designate LRW-AMD, AWS, IWS, PCR

2 Otterslide Run LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 2 Mare Run LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 3 Camp Run* LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 3 Rocky Run* LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 3 Creighton Run LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 3 Road Fork - Flag Run (RM

1.38) to the mouth LWH, AWS, IWS, PCR Designate WWH in lieu of LWH

3 Flag Run LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 3 Schwab Run LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 3 Elk Fork LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 3 Greasy Run LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 3 McBride Run* LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 3 Barnes Run LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 3 West Fork of East Fork

Duck Creek – headwaters to unnamed tributary at RM 1.34

LWH, AWS, IWS, PCR Designate MWH-MA in lieu of LWH

3 West Fork of East Fork Duck Creek – unnamed tributary at RM 1.34 to the mouth

LWH, AWS, IWS, PCR Designate WWH in lieu of LWH

3 Unnamed tributary to West Fork Duck Cr at RM 2.30

None Designate MWH-MA, AWS, IWS, PCR

3 Unnamed tributary to West Fork Duck Cr at RM 3.05

None Designate MWH-MA, AWS, IWS, PCR


pg# Water Body Segment Current Uses Proposed changes retained in the re-filed rule

3 Nelots Creek (West Fork Duck Creek RM 5.57)


4 Macksburg Run (West Fork Duck Creek RM 9.35)


4 Buffalo Run LRW-AMD, AWS, IWS, PCR

Designate WWH in lieu of LRW-AMD

4 Warren Run LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 4 Dog Run – at RM 1.35 WWH, AWS, IWS, PCR Specify PWS is for the Village of

Caldwell 4 Wolf Run – at RM 0.7 WWH, AWS, IWS, PCR Specify PWS is for the Village of

Caldwell 4 Horse Run (West Fork

Duck Creek RM 29.49) None Designate WWH, AWS, IWS, PCR

4 South Branch Horse Run (Horse Run RM 2.31)


4 Johnny Woods River LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 4 Coal Run (West Fork Duck

Creek RM 33.22) None Designate WWH, AWS, IWS, PCR

4 Patty Creek - headwaters to unnamed tributary at RM 1.1


4 Patty Creek - unnamed tributary at RM 1.1 to the mouth


5 Eightmile Creek WWH, AWS, IWS, PCR Designate EWH in lieu of WWH 5 Fifteenmile Creek WWH, AWS, IWS, PCR Designate EWH in lieu of WWH 5 Goss Fork WWH, AWS, IWS, PCR Designate EWH in lieu of WWH 5 Bear Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH 6 Archers Fork – Cady Run

(RM 4.94) to the mouth WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

6 Rias Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH 7 Witten Fork – Millers Fork

(RM 7.12) to the mouth WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

7 Walnutcamp Run WWH, AWS, IWS, PCR Designate EWH in lieu of WWH 8 Town Fork WWH, AWS, IWS, PCR Designate EWH in lieu of WWH 8 Cranenest Fork WWH, AWS, IWS, PCR Designate EWH in lieu of WWH 8 Wolfpen Run None Designate EWH, AWS, IWS, PCR 9 Leith Run EWH, AWS, IWS, PCR Designate WWH in lieu of EWH 11 Sunfish Creek –

Standingstone Run (RM 17.49) to Paine Run (RM 7.55)

WWH, AWS, IWS, PCR Designate EWH in lieu of WWH

11 Nigger Run (Sunfish Creek RM 1.70)


Change name to Salem Run



11 Piney Fork WWH, AWS, IWS, PWS, PCR

Designate EWH in lieu of WWH

12 Cat Run WWH, AWS, IWS, PWS, PCR

Designate PCR in lieu of SCR

12 Peavine Creek WWH, AWS, IWS, PWS, PCR


12 Bend Fork – headwaters to Joy Fork (RM 4.0)



14 Unnamed tributary at North Fork Captina Creek RM 10.0

None Specify PWS at RM 0.55 (Village of Barnesville)

14 Unnamed tributary at North Fork Captina Creek RM 10.14

None Specify PWS at RM 0.35 (Village of Barnesville)

13 Slope Creek – at RM 1.85 WWH, AWS, IWS, PWS, PCR

Specify PWS is for the Village of Barnesville

14 Pipe Creek LRW-AMD, AWS, IWS, PCR


14 Big Run – New Nacco Mine #3 portal (RM 0.4) to confluence with Ohio River

LWH, AWS, IWS, PCR Designate WWH in lieu of LWH

14 Big Run – all other segments



14 Wegee Creek LRW-AMD, AWS, IWS, PCR


14 McMahon Creek – headwaters to Little McMahon Creek (RM 7.10)


14 Little McMahon Creek – Chambers Run (RM 5.8) to the mouth



14 Little McMahon Creek – at RM 6.6


Specify PWS is for the City of St. Clairsville

14 Williams Creek WWH, AWS, IWS, PCR Designate EWH in lieu of WWH 15 Wheeling Creek LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 15 Steep Run WWH, AWS, IWS, PCR Designate MWH-MA in lieu of

WWH 16 Jug Run – at RM 3.18 WWH, AWS, IWS,

PWS, PCR Specify PWS is for the City of St. Clairsville

16 Crabapple Creek – Campbell Creek (RM 1.0) to the mouth

MWH-MA, AWS, IWS, PCR

Designate WWH in lieu of MWH-MA

17 Short Creek LWH, AWS, IWS, PCR Designate WWH in lieu of LWH



17 Little Short Creek LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 17 Coal Run LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 17 Piney Fork LWH, AWS, IWS, PCR Designate WWH in lieu of LWH 18 Middle Fork Short Creek MWH-MA, AWS, IWS,

PCR Designate WWH in lieu of MWH-MA

18 Liming Creek None Designate WWH, AWS, IWS, PCR 18 Sally Buffalo Creek MWH-MA, AWS, IWS,

PCR Designate WWH in lieu of MWH-MA

18 Cross Creek – Salem Creek (RM 17.44) to Barber Hollow Run (RM 9.60)


20 Yellow Creek – Upper North Fork (RM 24.20) to North Fork (RM 3.43)


22 Town Fork – Jefferson Lake (RM 8.37) to the mouth


23 Gault Creek None Designate WWH, AWS, IWS, PCR

Attachment 1: CWH Definition

"Coldwater" - these are waters that meet one or both of the characteristics described in paragraphs (B)(1)(f)(i) and (B)(1)(f)(ii) of this rule. A temporary variance to the criteria associated with this use designation may be granted as described in paragraph (F) of rule 3745-1-01 of the Administrative Code. (i) "Coldwater habitat, inland trout streams" - these are waters which support trout stockingand management under the auspices of the Ohio department of natural resources, division ofwildlife, excluding waters in lake run stocking programs, lake or reservoir stocking programs,experimental or trial stocking programs, and put and take programs on waters without, orwithout the potential restoration of, natural coldwater attributes of temperature and flow.The director shall designate these waters in consultation with the director of the Ohiodepartment of natural resources.(ii) "Coldwater habitat, native fauna" - these are waters capable of supporting populations ofnative coldwater fish and associated vertebrate and invertebrate organisms and plants on anannual basis. The director shall designate these waters based upon results of use attainabilityanalyses.

(OAC 3745-1-07(B)(1)(f), emphasis added)

Attachment 2: Comment Letters

February 16, 2017

Ohio Environmental Protection Agency, Division of Surface Water Attention: Melinda Harris P.O. Box 1049 Columbus, Ohio 43216-1049

Ohio Environmental Council Comments on Updated Use Designations under OAC 3745-1-13 - Central Ohio tributaries drainage basin

On behalf of our over 100 member groups and thousands of individual members throughout the state of Ohio, the Ohio Environmental Council ("OEC") respectfully submits the following comments on Ohio Environmental Protection Agency's Division of Surface Water's proposed rules for beneficial use designations under OAC 3745-1-13, for "Central Ohio tributaries drainage basin" in eastern Ohio along the Ohio River.

This rule package represents one of the most extensive sets of stream upgrades that Ohio EPA has ever proposed. It contains dozens of beneficial use upgrades to small streams, verifying or newly upgrading many to Exceptional Warmwater Habitat (EWH) and Coldwater Habitat (CWH).

OEC commends the rigorous analysis conducted by the Ohio EPA to fully and properly designate these streams. These proposed designations are grounded in sound science, and are technically and legally sound. The Agency's detailed analysis and surveys identified biological communities of currently designated Warmwater Habitat (WWH) streams that actually demonstrated the presence of both cold water adapted fish and benthic macroinvertebrates. Biological assessments of currently designated limited Warmwater Habitat (LWH) these water bodies were conducted for the first time and found actually to support (or have the potential to fully support) WWH designation. Two currently designated LWH streams were even found to support an exceptional biological community, and properly designated as EWH.

These upgrades are incredibly important for a number of reasons. First, many of these streams, despite being in the heart of intensive current and legacy mineral extraction operations, have shown great resiliency. Many of these streams had been designated decades ago, without full scientific analysis, as low quality due to the historic impacts of mining on these waters. While the Ohio EPA's analysis in some

instances verified that limited aquatic life status, dozens of waters demonstrated the ability to sustain diverse biological communities. While these streams are vibrant, they are still very sensitive to pollution. Thus, they deserve and require more stringent protections, and the Agency's proper designations will provide that protection.

Secondly, a number of the surveyed water bodies are located in watersheds that contain eastern hellbender habitat and other state or federally listed aquatic species. The designation verifications and upgrades in this rule package help ensure the continued protection of some of the most sensitive habitat in eastern Ohio.

Furthermore, this rule package represents a dedicated adherence to the Ohio Revised Code's clean water laws. Many small streams in the Central Ohio River area that have for too long gone unnoticed, are now, for the first time, properly analyzed and will be properly protected. Not only has the Agency aptly used its scientific expertise, but has done so through following the proper legal protocol under ORC 6111.30 (3). That section requires that in the case of a stream for which a specific aquatic life use designation has not been made, data sufficient to determine the existing aquatic life use must be used to establish its designation. The scientific rigour put into this rulemaking represents the data sufficient to determine the existing aquatic life uses of these waters, appropriately implementing this law.

This rule package is proof that when you use sound science you will get sound policy. It further represents a continued demonstration of Ohio EPA's national leadership in stream protection, using conscientious analysis of the biology of all streams that contribute to the health of our watersheds. This analysis provides the communities and industries that depend on these streams the unequivocal certainty they have long asked for and deserve.

Thank you for the opportunity to comment on this rule and for considering the OEC's perspective. The OEC looks forward to continuing to engage with Ohio EPA as we move forward together to protect waters of the state of Ohio.

Respectfully submitted,

'

Trent Dougherty, Esq. I General Counsel Ohio Environmental Council 1145 Chesapeake Ave., Suite I Columbus, OH 43212

The Nature Conservancy

The Nature Conservancy in Ohio 6375 Riverside Drive, Suite 100 Dublin, OH 43017-5045

Tel (614) 717-2770 Fax (614) 717-2777

nature.org/ohio

Protecting nature. Preserving life.

Public Hearing Comments to Ohio EPA Proposed rulesfor OAC 3745-1-13, "Central Ohio tributaries drainage basin" The Nature Conservancy February 16, 2017

The Nature Conservancy in Ohio appreciates the opportunity of this public hearing to comment on the proposed rules for beneficial use designations that Ohio EPA issued in December 2016. These rules address use designations in OAC 3745-1-13, "Central Ohio tributaries drainage basin" in eastern Ohio along the Ohio River_ See: http://www.epa.ohio.gov/Portals/35/rules/prop WQS 1-13 jan17 new combined.pdf.

We very much appreciate the extensive effort that has been documented in these proposed rules. While we work in multiple states and generally are familiar with the amount of stream data available, we believe Ohio's data collection is among the most extensive, organized and defensible. Ohio's method of classifying streams is based on clear, consistent standards using biological assessments. Ohio EPA is a national leader in the assessment of streams.

We emphasize that this effort supports the need to conduct use attainability assessments on all streams, include small streams. The data demonstrate that many small streams, which might previously have been dismissed as too small to attain Ohio's water quality standards, are capable of achieving such standards. These data underscore the need to collect biological data, including fish and macroinvertebrates, in order to properly classify and designate these streams based on their ecological value. This data collection should only be done by qualified individuals and organizations.

We support the effort to collect these data to establish use designations for streams that were previously undesignated. We support the reassignment of designations based on data collection. We believe this effort appropriately addresses implementation of ORC 6111.30 (3), which, when designations have not been made, that "data sufficient to determine the existing aquatic life"is used to establish designations.

We support the Ohio Environmental Protection Agency's proposal to revise OAC 3745-1-13 to:

• Upgrade designations for many of these streams from the unverified Warmwater Habitat (WWH) to Exceptional Warmwater Habitat (EWH) and Coldwater Habitat (CWH);

• Verification of existing designations; and

• Downgrading where the data do not support uses other than WWH.

EWH and CWH represent only a small fraction of Ohio's stream designations, and this is especially true for CWH. Our organization is not surprised that a number of the Central Ohio Tributari'es stream reaches examined are indicative of these rarer designations. We have long known that many possess outstanding habitat quality and uniquely diverse aquatic communities.

jJ FSC

RECYCLED Paper made from recycled ma!s~al

FSC" C103210

While the changes in aquatic life habitat designations are specific to individual stream reaches, a number of these are located in watersheds that contain eastern hellbender habitat (attachment 1) and other state or federally listed aquatic species. The status/protections afforded by these designations is especially important given the rarity of many species found within or close to these stream reaches. In addition, due to the close proximity to the Ohio River we expect that these designations will help maintain ongoing water quality and diversity recovery in the middle Ohio River.

We believe this data collection and designation process are rigorous and technically defensible. We greatly appreciate the effort to protect these streams at the proposed higher use designations in order to maintain these examples of outstanding ecological quality in Ohio.

Submitted by:

John Stark /I o ~~

£irector of Freshwater Conservation The Nature Conservancy in Ohio 6375 Riverside Drive, Suite 100 Dublin, Ohio 43017 614-717-2770

2

Stream Des;gr,ati, from OEPA ca. 2010

10 Miles/

I

Central Ohio River Watersheds .... - • Outstanding State Waters

Superior High Quality Waters

--CWH

EWH

EWH/CWH

--WWH/CWH

Urbanized

LJ County Boundary

Hellbender Area

Abandoned Undergound Mines

~ Underground Coal Mine

Surface Coal Mine

CentralOhioRiver_HUClO

f:) CentraJOhioRiver_HUC12

0 CentralOhioRiver_HUCS

Date: 2017-02-09

Fair Shake Environmental Legal Services

Pittsburgh 3495 Butler Street. Suite 102 Pittsburgh, PA 15201

(412) 742-4615 (412) 291-1187 {fax)

Akron 159 S. Main Street. Suite 1030 Akron. OH 44308

(234) 571-1970 (330) 319-8856 (fax)

February 16, 2017

Via electronic mail (dsw [email protected]) Rule Coordinator Ohio EPA, Division of Surface Water P.O. Box 1049 Columbus, OH 43216-1049

A new climate of fairness.

Re: Comment on Proposed Rulemaking Governing Water Quality Standards for the Central Ohio Tributaries Drainage Basin

Dear Rule Coordinator:

On behalf of Freshwater Accountability Project, we are submitting comments on Ohio EPA' s proposed rules regarding beneficial use designations for the Central Ohio Tributaries Drainage Basin. Freshwater Accountability Project is a nonprofit organization with a mission to preserve freshwater supplies through education and community action, and is dedicated to promoting health by protecting the environment. Fresh Water Accountability Project has members located throughout the state of Ohio, including members along the rivers, streams, and wetlands that would be impacted by the proposed beneficial use changes.

Introduction

Ohio EPA' s new proposed beneficial use regulations reduce the protections afforded to water quality in three water segments in the Cross Creek Basin Watershed and three water segments in the Duck Creek Watershed. Those water segments in the Cross Creek Basin facing reduced protections include Grassy Run, Longs Run, and Little McIntyre Creek from Friendship Park to the mouth of the creek. The affected Duck Creek water segments include an unnamed tributary at East Fork (RM 5.73) and the unnamed tributaries to West Fork Duck Creek at RM 2.30 and RM 3.05.

1

The stated objective of the Clean Water Act is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."1 In accordance with the CW A, a State must from time to time, and at least every three years, review water quality standards and, when appropriate, modify and adopt stand~ds.2 These modifications may include modifications of the designated uses of waterbodies within the State.3 However, such standards "shall be such as to ... enhance the quality of water and serve the purposes of [the CWA]."4

Reducing the protections given to these six segments neither enhances the quality of these waters nor serves the express purposes of the CW A. Thus, by adopting the proposed beneficial uses for these six segments, Ohio EPA would be shirking its duties under the CWA.

The CWA provides a mechanism through which a state may determine that a body of water is unable to meet its designated beneficial use even with point source limitations put in place.5 If a water segment fails to meet its designated use, the appropriate means of addressing this failure in accordance with the CWA's objective to "restore and maintain" the quality of the Nation's waters is not to downgrade the water segment's desi~ated beneficial use, which would result in that water body never being restored, but is to identify the water body as not in attainment and take the appropriate steps under 33 U.S.C § 1313(d) to address the cause of the non-attainment.

I. Cross Creek Basin: Grassy Run, Longs Run, and portions of Little McIntyre Creek

Grassy Run, Longs Run, and the relevant section of Little McIntyre Creek are all currently designated Cold Water Habitat ("CWH"). Ohio EPA state.s that the reason they propose a downgrade in protection for these three segments is because the CWH designation was made prior to the State's creation of its biological assessment program and biological criteria, and therefore an Ohio EPA study completed in 2010 represents the first true assessment of these waters.

1 33 u.s.c § 1251. 2 33 U.S.C § 1313(c)(l). 3 33 U.S.C § 1313(c)(2). 4 33 lJ.S.C § 1313(c)(2). 5 See 33 U.S.C § 1313(d).

2

However, as Ohio EPA acknowledges, "the vast majority of original designations made in the 1970s and early 1980s was for the WWH [Warm Water Habitat] use designation."6

Despite this fact, Grassy Run, Longs Run, and Little McIntyre Creek were all originally designated CWH. Ohio EPA provides little explanation as to why the original designation for these segments was CWH when the CWH designation was not the default designation but would instead signal waters requiring more stringent protections. In addition, Ohio EPA's justification for the proposed WWH designation does not provide sufficient evidence that the three waterbodies no longer meet the CWH beneficial use designation.

A. Reducing Protections for the Three Cross Creek Basin Segments Violates the Objectives of the CWA and the CWA's Antidegradation Policy

While Ohio EPA states that it is inappropriate to consider the proposed changes in beneficial use to be a "downgrade" of the uses assigned to Grassy Run, Longs Run, and Little McIntyre Creek, the fact remains that the alteration in beneficial use designation will result in less stringent protections for the waters, which in turn does amount to a "downgrade" in the way these waters may legally be treated.

The CW A was designed suGh that a state would take a first inventory of its waters and assign beneficial uses beginning in 1972. 7 Grassy Run, Longs Run, and Little McIntyre Creek each received a CWH designation in 1978. Ohio EPA states that the original CWH designation was based on the Ohio Department of Natural Resources' trout stocking activity, but provides little additional information about the reasoning behind this original designation differing from the WWH designation assigned to the vast majority of water segments prior to assessment using the biological criteria8

The CW A provides that each state must develop and adopt a statewide antidegradation policy that at minimum must maintain and protect the water quality necessary to

6 Ohio EPA, Division of Surface Water, Proposed Rule- Beneficial Use Designations Fact Sheet (Dec. 2016) , available at http://www.epa.ohio.gov/Portals/35/rules!Js_PROP _WQS_wave3_dec16.pdf. 7 33 U.S.C § 1313(c). s Ohio EPA, Division of Surface Water, 2010 Study Plan Central Ohio River Tribs (CORT) Watershed Including the Cross Creek, Short Creek, and Wheeling Creek Basins, available at http://www.epa.state.oh.us/portals/35/tmdl/monitoring_ CrossWheelingShortStudyPlan 2010.pdf

3

protect the existing uses of the waterbody.9 Importantly, existing uses refer to those uses the water body has actually attained since November 28, 1975, even if the water body is not currently supporting that use. Even without documentation that a particular use has occurred since November 28, 1975, evidence that suggests that water quality was sufficient to support that use at some time since November 28, 1975 can serve as a basis for defining an existing use for a particular water body.

Weakening the standards applied to Grassy Run, Longs Run, and Little McIntyre Creek violates the purpose of the CWA and its antidegradation provisions in particular. Ohio EPA' s history of these waters suggests that the three segments at one time were subject to ODNR trout stocking activities, resulting in the 1978 CWH designation. Thus, in order to justify downgrading the designation of the habitat and thereby reduce the water body's protections,.Ohio EPA needs to provide additional information on the existing uses of these waters since November 28, 1975. In particular, Ohio EPA should explain why it finds it permissible to downgrade the water protections to these segments that once supported trout stocking activity in a way that would eliminate the restoration of this use. ·

B. Ohio's Water Quality Criteria Does Not Require the Presence of Particular Cold Water Populations in Order for a Water Segment to be Designated CWH

In justifying its proposal to downgrade the beneficial use of the three Cross Creek Basin segments from WWH to CWH, Ohio EPA states that these segments "lacked requisite cold water populations in 2010." However, Ohio's definition of "coldwater habitat" does not require a biological assessment to document coldwater populations of particular fauna in order for a segment to receive the designation. Rather, a water segment need only be "capable of supporting populations of native cold water fish and associated vertebrate and invertebrate organisms and plants on an annual basis" or be "waters which support trout stocking and management" under the.auspices of ODNR.10

Given Ohio's definition of "cold water habitat," the information regarding cold water fish populations collected by Ohio EPA in 2010 does not warrant a change in the beneficial use of these three stream segments, since even though coldwater fish populations were not identified in 2010, these waters may indeed remain capable of supporting the associated invertebrate organisms and plants. In its comments on Wave 2 of the Beneficial Use Designation Proposed Rules, US EPA Region 5 alerted Ohio EPA to the discrepancy between the "coldwater habitat" definition and b_asing changes in

9 40 C.F.R § 131.12. 10 OAC 3745-1-07(B)(l)(f).

4

beneficial use designations on cold water fish populations.11 Ohio EPA does not currently provide sufficient explanation and analysis for its proposal to change the beneficial use of Grassy Run, Longs Run, and Little McIntyre Creek -from CWH to WWH given the language of the current CWH definition.

Furthermore, the fact that the initial designation of CWH was based on ODNR trout stocking activity, suggests that the designated use was indeed at that time appropriate considering the II cold water habitat" definition expressly includes those waters that support trout stocking and management under ODNR. This trout-stocking history combined with the CW A's anti.degradation rule suggests that Grassy Run, Longs Run, and Little McIntyre Creek at one time since November 28, 1975 had existing uses that would have qualified them for the CWH designated use, and that in turn, these designations should not be downgraded.

II. Unnamed Tributaries in Duck Creek Watershed

Ohio EPA proposes weakening the water quality protections for three segments in the Duck Creek watershed: an unnamed tributary at East Fork (RM 5.73) and the unnamed tributaries to West Fork Duck Creek at RM 2.30 and RM 3.05. Specifically, Ohio EPA proposes the beneficial use of "limited resource water" for the unnamed tributary at East Fork (RM 5.73) and the beneficial use of "modified warmwater habitat" for the unnamed tributaries to West Fork Duck Creek at RM 2.30 and RM 3.05.

A. Unnamed Tributaries to West Fork Duck Creek at RM 2.30 and RM 3.05

Water quality criteria applicable to water bodies not specifically listed in the rul~s are the same as the water quality criteria that accompany the WWH use designation. The "modified warmwater habitat" ("MWH") designation is for waters "found to be , incapable of supporting and maintaining a balanced, integrated, adaptive community of warmwater organisms due to irretrievable modifications of the phy1?ical habitat."12

Biological sampling done by Ohio EPA in 2000, shows the unnamed West Fork Duck Creek tributary at RM 2.30 partially supporting a WWH designation, suggesting the tributary does not meet the MWH classification but is better suited for a WWH

11 Division of Surface Water Response to Comments, available at http://epa.ohio.gov/Portals/35/rules/resp_to_comments_WQS_Wav~2_nov16.pdf 12 OAC 3745-1-07(B)(l)(d).

5

designation.13 Biological sampling for this same time period also resulted in a proposed designation of WWH for the unnamed West Fork Duck Creek tributary at RM 3.05 despite the segment being in nonattainment.14 The fact that the unnamed West Fork Duck Creek tributary at RM 2.30 is in partial attainment of WWH supports a designation of WWH for this segment to ensure the segment is able to maintain its current protections and not be subjected to further degradation. That a TMDL for the

I

unnamed West Fork Duck Creek tributary at RM 3.05 was already established in 2003 is another reason to not further reduce the protections given to this segment but to apply the standards already established as necessary to restore the water segment.

Designating the two unnamed tributaries to West Fork Duck Creek as MWH will result in less stringent chemical criteria for dissolved oxygen and ammonia as well as less stringent biological criteria than what the two unnamed tributaries currently receive. Thus, the proposed designation works against the CW A's stated objective of restoring and maintaining the chemical, physical, and biological integrity of the Nation's waters.

B. Unnamed tributary at East Fork (RM 5.73)

The "limited resource water" designation applies to those waters that "lack the potential for any resemblance of any other aquatic life habitat," and where it has been demonstrated that "the potential for recovery of the fauna to the level characteristic of any other aquatic life habitat is realistically precluded due to natural background conditions or irretrievable human-induced conditions." 15 A water segment designated LRW must be assigned a causative factor for the condition. Ohio EPA proposes the LRW designation for the unnamed tributary at East Fork (RM 5.73) due to acid mine drainage.

The proposed designation for the East Fork tributary at RM 5.73 also works against the CW A's objectives by reducing the protections given to the East Fork tributary by lowering the applicable biological criteria as well as the criteria for oxygen and ammonia. This opens up the possibility for additional pollution to enter the segment that would have been prohibited under the protections granted to the segment as an undesignated waterbody. Therefore, this change does not work to enhance water quality or serve the purposes of the CWA.

13 Ohio EPA Division of Surface Water, Total Maximum Daily Loads for Duck Creek, Appendix A: Results of Biological and Water Quality Sampling (September 2003), available at http://www.epa.ohio.gov/portals/35/tmdl/DuckCreekTMDL_final_sep03.pdf t4 Id. 15 OAC 3745-1-07(B)(l)(g).

6

Conclusion

The current proposed beneficial use designations for the Grassy Run, Longs Run, and Little McIntyre Creek from Friendship Park to the mouth of the creek in the Cross Creek Basin Watershed and for the unnamed tributaries at East Fork (RM 5.73) and West Fork Duck Creek (RM 2.30 and RM 3.05) in the Duck Creek watershed fail to enhance the quality of Ohio's waters and to uphold the express objectives of the ~lean Water Act. In order to fulfill the CW A's stated objectives of restoring and maintaining the integrity of our Nation's waters, Ohio EPA should maintain the designated beneficial use of Grassy Run, Longs Run, and Little McIntyre Creek from Friendship Park to the mouth of the creek as CWH. To ensure the waterbodies in Duck Creek watershed are given adequate opportunity to be restored, the unnamed tributaries at East Fork (RM 5.73) and West Fork Duck Creek (RM 2.30 and RM 3.05) should be designated WWH. The current definitions of these habitats as codified in Ohio law permit such designations and the history of these water segments supports such designations.

Respectfully submitted,

Megan M. Hunter, Esq. Ohio Bar No. 0096035 Fair Shake Environmental Legal Services 159 S. Main Street, Suite 1030 Akron, Ohio 44308 Phone: (234) 334-0997 Email: [email protected]

Attorney for Fresh Water Accountability Project

7

February 16, 2017

VIA ELECTRONIC MAIL

Attn: Melinda Harris, Rule Coordinator Division of Surface Water Ohio EPA P.O. Box 1049 Columbus, OH 43216-1049

dsw [email protected]

!.Frosk ill6wn 1oddLLC

ATTORNEYS

Stephen P Samuels Member

614.559.7259 (t) 614.464.1737 (f)

[email protected]

Re: Proposed Amendment of Ohio Admin. Code 3745-1-13, Central Ohio Tributaries Drainage Basin

On behalf of the Ohio Valley Coal Company and American Energy Corporation ("the Companies"), we are submitting the following comments on Ohio EPA's proposed changes to Ohio Admin. Code 3745-1-13, which rescinds the rule currently in effect and proposes to file as new the proposed use designations for Central Ohio tributaries.

I. Introduction

As part of this rulemaking, Ohio EPA has proposed changing the aquatic life use designations for Piney Creek, Bend Fork, and McMahon Creek. Specifically, Ohio EPA has proposed changing the designated use for Piney Creek from warm water habitat (WWH) to cold water habitat (CWH), and has proposed changing the designated uses for Bend Fork and McMahon Creek from WWH to exceptional warm water habitat (EWH) in ce1iain reaches.

As detailed below, the water quality data relied upon by Ohio EPA does not support these proposed changes because they do not comply with the requirements for designating streams as CWHorEWH.

• To support a CWH designation in Piney Creek, Ohio EPA must show that coldwater taxa predominate, not merely that they are present-a showing Ohio EPA has not made.

• To supp01i an EWH designation in Bend Fork and McMahon Creek, Ohio EPA must measure the attributes of species composition, diversity, and functional organization using the index of biotic integrity (IBI), modified index of well-being

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Melinda Harris February 16, 2017 Page2

(Miwb ), and inve1iebrate community index (ICI) and find the results comparable to the seventy-fifth percentile of identified reference sites-which it has not done.

• In Bend Fork (from the headwaters to Joy Fork), Ohio EPA used a single IBI score to designate approximately 9 miles of Bend Fork as an EWH, falling well short of the demonstration required to justify an EWH designation.

• In McMahon Creek (from the headwaters to Little McMahon Creek), Ohio EPA data in all but one sample location was below the biocriteria standards indicative of a EWH; in most instances Ohio EPA relied on borderline results from one or two of the three required biocriteria metrics to justify the EWH designation.

These comments provide an overview of Ohio EPA aquatic life habitat use designations, describe the evidence used by Ohio EPA to suppmi its proposed changes, and urge revision of the proposed Ohio Admin. Code 3745-1-13 to more accurately reflect the aquatic life uses that the specified segments of Piney Creek, Bend Fork, and McMahon Creek are capable of supporting.

II. Regulatory Overview

CWH and EWH are two of the seven aquatic life habitats recognized under Ohio Admin. Code 3745-1-07.

A. Cold Water Habitat Designation

A CWH is designated based on a water's ability to support trout or native coldwater fish and associated vertebrate and invertebrate organisms. Streams that are designated CWH based on native coldwater fish are:

"capable of supporting populations of native coldwater fish and associated vertebrate and invertebrate organisms and plants on an annual basis. The director shall designate these waters based upon results of use attainability analyses. " Ohio Admin. Code 3745-1-07(B)(l)(f)(ii).

To support a CWH designation based on non-salmonid species and taxa, Ohio EPA must show a predominance, not merely the presence, of coldwater taxa in the community. Ohio EPA, Biological Criteria for the Protection of Aquatic Life: Volume II, Users Manual for Biological Field Assessment of Ohio Swface Waters, Section 8, October 30, 1987 ( as updated).

Per Ohio Admin. Code 3 7 45-1-07, Ohio EPA must also conduct a use attainability analysis before designating a stream as a CWH. A use attainability analysis is a structured scientific assessment of the factors affecting the attainment of uses under 40 CFR 131.1 O(g) which evaluates the pollutant concentrations, flow conditions, human caused conditions, hydrologic modifications, physical conditions, and economic and social impact of certain required controls.


Melinda Harris February 16, 2017 Page 3

As discussed in Section III below, Ohio EPA data does not support a CWH designation for Piney Creek.

B. Exceptional Warmwater Habitat

EWH is defined using quantitative metrics based on a comparison of species composition, diversity and functional organization to identified reference sites. To be properly designated EWH, a stream must be comparable to the seventy-fifth percentile of identified reference sites on a statewide basis

"measured using the index of biotic integrity, the modified index of well-being and the invertebrate community index as defined in "Biological Criteria for the Protection of Aquatic Life: Volume II, Users Manual for Biological Field Assessment of Ohio Surface Waters," as cited in paragraph (BJ of rule 3745-1-03 of the Administrative Code." Ohio Admin. Code 3745-1-07(B)(l)(c) [emphasis added}.

Analysis using all three biocriteria metrics is needed to suppmi a EWH use designation. Biocriteria metrics required to achieve EWH status for headwater or wading sites include:

• IBI score range 50-60 • Mlwb score 2: 9.4 • ICI score range 46-60

As discussed below, for Bend Fork and McMahon Creek, Ohio EPA failed to conduct the quantitative analysis required to support an EWH. Ohio EPA did not conduct the required analysis on the stretch of Bend Fork proposed to be re-designated as EWH, and failed to conduct this analysis in all but one location in McMahon Creek where the designation is proposed to change to EWH.

III. Ohio EPA Supporting Evidence and Analysis

These comments address three of the 113 stream segments that are the subject of the rulemaking: Piney Creek, Bend Fork (from the headwaters to Joy fork), and McMahon Creek (from the headwaters to Little McMahon Creek). Of these, two are located in the Captina Creek watershed (Piney Creek and Bend Fork), and one is located in the McMahon Creek watershed (McMahon Creek).

A. Captina Creek Watershed

Piney Creek and Bend Fork were surveyed by Ohio EPA in 2008-2009, the results of which were documented in Ohio EPA 's Biological and Water Quality Study of the Captina Creek Watershed 2009, Ohio EPA Report DSW/EAS 2010-4-1 (Captina Creek TSD). Ohio EPA sampled Piney Creek at one location near its confluence with Captina Creek at River Mile (RM) 0.02, and sampled in Bend Fork at RMs 8.35, 3.59, and 0.26. Id.

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1. Piney Creek

Ohio EPA has proposed changing the use designation for Piney Creek from WWH to CWH based on one fish sampling event, at only one location, on June 17, 2009, and one macro invertebrate sampling event, again at one location, on August 6, 2009. The Captina Creek TSD states that "[t]he Coldwater Habitat (CWH) aquatic life use designation is recommended for Joy Fork, Piney Creek, and Case Run based on abundant populations of coldwater fish species and/or coldwater macroinvertebrate taxa." However, what the sampling actually showed was that warmwater taxa predominate over coldwater taxa in Piney Creek. Indeed, only 5% of fish taxa and 10% of macroinve1iebrate taxa observed in Piney Creek are considered cold water taxa by Ohio EPA. Or stated in the converse, 95% of fish and 90% of macroinvertebrates in Piney Creek are warmwater taxa.

For fish-which the rule suggests is the principal driver of CWH designation-Ohio EPA found nineteen fish taxa, eighteen of which are warmwater taxa. (Ohio EPA 2013). The only coldwater fish taxa found in Piney Creek was mottled sculpin (Cottus bairdi). Id.

Ohio EPA observed thhiy-seven macroinve1iebrate taxa during its survey, only four of which are considered coldwater taxa. (Ohio EPA 2016). Of these four species, only three are widely considered to be coldwater taxa. Diamesa sp. (a species of midge) is considered by other well respected sources to be a warmwater or coolwater taxa (Grafe et al. 2002 and Vieira et al. 2006). Warmwater taxa very clearly predominate over coldwater taxa in Piney Creek and as Ohio EPA explains in its Biological Criteria for the Protection of Aquatic Life: Volume IL Users Manual for Biological Field Assessment of Ohio Swface Waters, Section 8, a stream should be designated a CWH only when coldwater taxa predominate.

Aquatic life use attainment status for Piney Creek, 2009 (adapted from Captina Creek TSD)

Sampling Type

Aquatic Life Use Aquatic Life Designation Attainment Status

Stream IBI Mlwb ICI" Habitatb

-- 0.1 - __ ::~~:at~1~- , --~~~-R___ / ________ :~~---- 1 -~6--- ___ :A_ 1 G , _____ :: a Narrative evaluation used in lieu of!CI (E=Exceptional; VG=Very Good; G=Good; MG=Marginally Good; F=Fair; P=Poor; VP=Very Poor)

b Narrative habitat evaluations are based on QHEI scores for wading sites (Excellent >75, Good: 60-74, Fair: 45-59, Poor: 30-44, Very Poor <30)

and headwater sites (Excellent >70, Good: 55-69, Fair: 43-54, Poor: 30-42, Very Poor <30)

Ohio EPA also conducted a quantitative analysis offish using the Index of Biotic Integrity (IBI). A quantitative analysis for macroinvertebrates was not conducted. Instead, the Agency opted for a narrative evaluation in lieu of an ICI and scored the invertebrate community at RM 0.1 of Piney Creek as good. By electing not to conduct an ICI in this location, less precise, less replicative, and less objective data was collected and a less rigorous analysis was conducted related to the invertebrate community at this location.


Melinda Haffis February 16, 2017 Page 5

Ohio EPA did not do any analysis of the plants in Piney Creek. Pursuant to Ohio Admin. Code 3745-1-07(B)(l)(f)(ii), a stream can only be designated as a CWH if the Ohio EPA determines the stream is capable of supporting native cold water fish and associated plants. No such showing has been made.

Additionally, no use attainability analysis has been conducted on this waterbody, as required by rule. Collecting and analyzing the results from one sampling station in Piney Creek falls well short of the rigorous scientific assessment envisioned in a use attainability analysis by 40 CFR 131.1 O(g). See https://www.epa.gov/wqs-tech/use-attainability-analysis-uaa. For these reasons, the Companies request that Ohio EPA retain the WWH designation for Piney Creek.

2. Bend Fork

Bend Fork had previously been designated as an EWH from Joy Fork (RM 4.0) to the mouth, and as a WWH from its source (approximately RM 13.0) to Joy Fork. In this rulemaking, Ohio EPA proposes to change the upper nine miles of Bend Fork from WWH to EWH with insufficient evidentiary suppmi.

Between July 7 and September 16, 2009, Ohio EPA conducted fish surveys in Bend Fork; on August 26 and September 1, 2009, macroinvertebrates were surveyed. Only one sampling station was sited in Bend Fork from its headwaters to Joy Fork, a stream segment of approximately nine river miles. Using just the equivocal results from this one station, Ohio EPA extrapolated them over the nine mile stretch of stream, assuming that the entire stream segment was a EWH, despite evidence indicating that there are significant changes in the stream from RM 13.0 to RM 4.0 which almost certainly includes flow, gradient, substrate, cover, and other habitat characteristics, ultimately affecting its use designation.

Aquatic life use attainment status for Bend Fork, 2009 (adaptedfrom Captina Creek TSD)

Sample Location

River Mile Sampling

Type Aquatic Life Use Aquatic Life

Designation Attainment Status Stream

IBI Mlwb ICI" Habitatb

I ~;_--:-:~;;;:; - - E:;,R _ -l- :;:: i :: :: f : ::: l __ -------'--------------------------- ----- -- -- -- -_! --- - - _, __ --- ! ____ [____ ... a Narrative evaluation used in lieu of!CI (E=Exceptional; VG=Very Good; G=Good; MG=Marginally Good; F=Fair; P=Poor; VP=Very Poor)



Ohio EPA used only one of the three required quantitative biocriteria metrics to support its re-designation of the upper nine miles of Bend Fork to EWH. Fork. At RM 8.4, Ohio EPA conducted a quantitative analysis of fish using the Index of Biotic Integrity (IBI) and found that this fish score was equal to the minimum score (50) required of an EWH. A Miwb was not calculated. A quantitative ICI analysis also was not conducted. The Agency, instead opted for a



narrative evaluation, but unlike an ICI, this qualitative evaluation is not easily reviewable, is highly subjective, and cannot be reproduced.

Ohio EPA also performed a QHEI in this section of Bend Fork and found the habitat to be merely fair, a conclusion that casts doubt on the on the qualitative ICI, and on the EWH finding. Notably, good/excellent substrates and extensive/moderate cover attributes were not present at RM 8.4. Captina Creek TSD, Table 17. During its QHEI, the Agency also noted that macroinve1iebrate densities were "low," a finding seemingly at odds with its narrative evaluation that the macroinvertebrate community was "exceptional." Id

Ohio EPA failed to complete the IBI, Mlwb, and ICI analysis required to compare Bend Fork to identified reference sites and determine whether the stream qualifies as an EWH. The evidence Ohio EPA collected certainly does not support designating approximately 9 river miles of stream as EWH. The IBI results from the one sampling station used showed that the stream segment barely attained the minimum score required for EWH and the QHEI results indicate that this reach does not have the habitat or macroinve1iebrate densities necessary to suppo1i an exceptional or unusual community of warm water aquatic organisms as required by Ohio Admin. Code 3745-1-07.

For this reason, the Companies request that Ohio EPA retain the WWH use designation previously assigned to Bend Fork from the headwaters to Joy Fork.

B. McMahon Creek Watershed

McMahon Creek is in the McMahon Creek watershed. The McMahon Creek watershed was surveyed by Ohio EPA in 2009, the results of which were documented in Ohio EPA, Biological and Water Quality Study of the McMahon Creek Watershed and Selected Ohio River Tributaries, Belmont County, Ohio, May 15, 2010, Ohio EPA Repmi DSW/EAS 2010-4-2. (McMahon Creek TSD).

1. McMahon Creek

McMahon Creek had previously been designated as a WWH throughout its entire length. In this rulemaking, Ohio EPA proposes to change the use designation of McMahon Creek from its headwaters to Little McMahon Creek to EWH, and retain the WWH use designation from Little McMahon Creek to the stream's mouth based on its conclusion that "McMahon Creek from the headwaters to the confluence with Little McMahon Creek exhibited qualities indicative of the exceptional warmwater habitat (EWH) aquatic life use ... " McMahon Creek TSD, p. 5. Ohio EPA evidence does not support re-designating this segment of McMahon Creek as a EWH.

Ohio EPA conducted fish surveys in the McMahon Creek watershed between June 16-September 16, 2009, and macroinve1iebrate sampling between July 22-September 2, 2009. Ohio EPA's summary of aquatic life use designation and attainment status for McMahon Creek is provided below. The sampling location at RM 7.0 falls just outside the proposed EWH boundary but is included because of its close proximity to the proposed EWH stretch and to show that the



upstream sampling station scores look very much like the scores for downstream station which is acknowledged to be a WWH.

Aquatic life use attainment status/or McMahon Creek, 2009 (adaptedfromMcMahon Creek TSD)

Sample Location Sampling Aquatic Life Use Aquatic Life Stream

River Mile Type Designation Attainment Status IBI Mlwb ICI" Habitath

24.1 Headwater EWH-R Full 43ns I NA E 61.0 I I ----- --- --- -----

22.6 Headwater EWH-R Full 50 - ---i----

NA T E 65.5 I I

_-_::;_~ [;:1~ :~:::· -[ -.·· ::::-l -::-1~:: -!~_;; ··' 12.1 1· Wading I EWH-R [ Full ~ 49ns I 9.4 I 48 / 61.5 !

----·------- --- ··--------------:- ----------------------1--------- ----! ---------------- ----------------!---------------------!--- ------------! --- -! 7.0 I Wading j WWH I Full 46 I 8.5 i 44 I 63.5 i

---------------------- I _______ !____________________ I ------------ --------- ---___ [ _____ L __ J __________ J ns Nonsignificant departure from biocriterion (<4 IBI or ICI units; <0.5 Miwb units)

a Narrative evaluation used in lieu of!CI (E=Exceptional; VG=Very Good; G=Good; MG=Marginally Good; F=Fair; P=Poor; VP=Very Poor)



Based on the quantitative biocriteria metrics alone, McMahon Creek does not have the attributes of an EWH. IBI scoring is much more indicative of a WWH. Four of the six McMahon Creek sites shown in the table above fail to meet the minimum IBI score of 50 for EWH. Indeed, the average IBI score is 49 .2 for this reach, which falls below the minimum score necessary for EWH rating. Miwb scores also do not suppmi a EWH designation. Ohio EPA did not calculate Miwb scores for two sites (RM 24.1 and 22.6), two of the other four sites fail to meet the minimum Miwb score of 2: 9.4 (RM 18.6 and RM 7.0), and another site (RM 12.1) barely meets the minimum score. ICI scoring (when it was used) is also unpersuasive. Two sites (RM 18.6 and 7.0) fail to meet the minimum ICI score of 46 for EWH, another barely meeting the minimum score (17.6), and two sites (RM 24.1 and 22.6) were scored using a nanative evaluation in lieu of the ICI.

The QHEI evaluation of this reach of McMahon Creek is equally lackluster and does not support a finding that McMahon Creek is capable of suppmiing and maintaining an exceptional or unusual community of warmwater aquatic organisms. None of the McMahon Creek sites has "excellent" stream habitat scores-all stream habitat scores corresponded with "good" narrative habitat evaluations. McMahon Creek TSD. And many of the attributes needed to support an exceptional community of warmwater aquatic organisms are simply not present. Id.

Ohio EPA proposed designating McMahon Creek from the headwaters to Little McMahon Creek ( approximately river mile 7 .1) as an EWH. As summarized above, many of the McMahon Creek biocriteria scores are less than the minimum score required for EWH designation and the biocriteria scores for McMahon Creek are much more consistent with a WWH.



For this reason, the Companies request that Ohio EPA retain the WWH use designation previously assigned to McMahon Creek.

IV. Adverse Economic Impact

Ohio EPA's statement in the Fact Sheet that "there should be no impact as a result of the water body use designation changes ... [on] existing dischargers to these stream segments" is not consistent with its admission that the coldwater and exceptional warmwater habitat uses bring about stricter chemical criteria, which may result in lower effluent limits for wastewater dischargers.

Despite the fact that the three streams are not capable of supporting the requisite quantity of coldwater/exceptional warmwater fauna, future NPDES permits may neve1iheless impose stringent effluent limits in a vain attempt to transform the stream.

This could result in significant economic impacts to the Companies. Use designations have real-world impacts on dischargers and must be accurate and based on sufficient and reproducible scientific evidence.

V. Conclusion

Biological communities in lotic systems vary substantially over time due to factors including, but not limited to precipitation and smrounding land use. Ohio EPA' s fish and macroinvertebrate surveys for Piney Creek, Bend Fork, and McMahon Creek were conducted in a single year (and in some cases very early or late in the sampling season) and thus do not adequately address temporal variability. In Piney Creek, the vast majority (90-95%) of all fish and macroinvertebrate taxa Ohio EPA documented are not considered coldwater taxa by Ohio EPA. In Bend Fork and McMahon Creek, EWH biocriteria minimum scores were either not met or were barely met.

Accordingly, the Ohio Valley Coal Company and American Energy Corporation requests that Ohio EPA reconsider its proposed designated use changes for Piney Creek, Bend Fork, and McMahon Creek.


Melinda Hanis February 16, 2017 Page 9

References

Grafe, C.S., C.A. Mebane, M.J. McIntyre, D.A. Essig, D.H. Brandt, and D.T. Mosier. 2002. The Idaho Department of Environmental Quality Water Body Assessment Guidance, Second Edition-Final. Idaho Department of Environmental Quality; Boise, Idaho.

Lyon, Troy, J. Stewmi, P. Seelbach, K. Wehrly, and L. Wang. 2009. Defining and Characterizing Coolwater Streams and Their Fish Assemblages in Michigan and Wisconsin, USA. No1ih American Fisheries Journal. Volume 29, 2009. Issue 4.

Vieira, N.K.M., N.L. Poff, D.M. Carlisle, S.R. Moulton II, M.L. Marci, and B.C. Kondratieff. 2006. A Database of Lotic Inve1iebrate Traits for N01ih America: U.S. Geological Survey Data Series 187.

OEPA 1987. Biological Criteria for the Protection of Aquatic Life: Volume II: Users Manual for Biological Field Assessment of Ohio Surface Waters (with updates)

OEPA 2010a. Biological and Water Quality Study of the Captina Creek Watershed-2009.

OEPA 2010b. Biological and Water Quality Study of the McMahon Creek Watershed and Selected Ohio River Tributaries - 2009.

OEPA 2013. Updates to Biological Criteria for the Protection of Aquatic Life: Volume II and Volume II Addendum. Users Manual for Biological Field Assessment of Ohio Surface Waters.

OEPA 2015. Updates to Biological Criteria for the Protection of Aquatic Life: Volume II and Volume II Addendum. Users Manual for Biological Field Assessment of Ohio Surface Waters.

OEPA 2016. Ohio EPA Macroinve1iebrate Taxa List (12/5/16 version). http://www.epa.state.oh.us/Portals/35/documents/Macro Taxa List.pdf (Accessed January, 2017)

One Columbus, Suite 2300 110 West Broad Street I Columbus, OH 43215-3484 I 614.464.1211 I frostbrowntodd.com Offices in Indiana, Kentucky, Ohio, Pennsylvania, Tennessee, Texas, Virginia and West Virginia

Attachment 3: Table 7-1

3745-1-07 Table 7-1

Table 7-1. Biological criteria for warmwater, exceptional warmwater and modified warmwater habitats. Description and derivation of indices and ecoregions are contained in "Biological Criteria for the Protection of Aquatic Life: Volume II, Users Manual for Biological Field Assessment of Ohio Surface Waters" cited in paragraph (B) of rule 3745-1-03 of the Administrative Code. These criteria do not apply to the Ohio river, lakes or lake Erie river mouths.

Index Modified warmwater habitat Warmwater habitat

Exceptional warmwater

habitat Sampling site Channel modif.

Mine affected Impounded

Ecoregion1 (A) Index of biotic integrity (fish)

(1) Wading sites2

HELP 22 32 50 IP 24 40 50 EOLP 24 38 50 WAP 24 24 44 50 ECBP 24 40 50

(2) Boat sites2

HELP 20 22 34 48 IP 24 30 38 48 EOLP 24 30 40 48 WAP 24 24 30 40 48 ECBP 24 30 42 48

(3) Headwater sites3


(B) Modified index of well being (fish)4

(1) Wading sites2

HELP 5.6 7.3 9.4 IP 6.2 8.1 9.4 EOLP 6.2 7.9 9.4 WAP 6.2 5.5 8.4 9.4 ECBP 6.2 8.3 9.4

(2) Boat sites2

HELP 5.7 5.7 8.6 9.6 IP 5.8 6.6 8.7 9.6 EOLP 5.8 6.6 8.7 9.6 WAP 5.8 5.4 6.6 8.6 9.6 ECBP 5.8 6.6 8.5 9.6

3745-1-07 Table 7-1

Index Modified warmwater habitat Warmwater habitat

Exceptional warmwater

habitat Sampling site Channel modif.

Mine affected Impounded

Ecoregion1 (C) Invertebrate community index (macroinvertebrates)

(1) Artificial substrate samplers2


1HELP = Huron/Erie lake plain ecoregion. IP = interior plateau ecoregion. EOLP = Erie/Ontario lake plain ecoregion. WAP = western Allegheny plateau ecoregion. ECBP = eastern corn belt plains ecoregion.

2Sampling methods descriptions are found in the "Surface Water Field Sampling Manual (for water quality parameters and flows)," cited in paragraph (B) of rule 3745-1-03 of the Administrative Code.

3Modification of the IBI that applies to sites with drainage areas less than twenty square miles.

4Does not apply to sites with drainage ares less than twenty square miles.

- End of Response to Comments -

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