ILLINOIS POLLUTION CONTROL BOARD

2 IN THE MATTER OF:

)

3 WATER QUALITY STANDARDS AND ) R08-09

EFFLUENT LIMITATIONS FOR THE ) (Rulemaking-

4 CHICAGO AREA WATERWAY SYSTEM ) Water)

AND THE LOWER DES PLAINES )

5 RIVER: PROPOSED AMENDMENTS )

TO 35 Ill. Adm. Code Parts )

6 301, 302, 303 and 304

)

REPORT OF PROCEEDINGS held in the

8 above-entitled cause before Hearing Officer Marie

9 Tipsord, called by the Illinois Pollution Control

10 Board, taken before Laura Mukahirn, CSR, a notary

11 public within and for the County of Cook and State

12 of Illinois, at the Thompson Building, 100 West

13 Randolph, Chicago, Illinois, on the 2nd day of

14 December, 2008, commencing at the hour of 1:00 p.m.

A P P E A R A N C E S

MS. MARIE TIPSORD, Hearing Officer

MR. THOMAS JOHNSON, Acting Chairman

MR. ANAND RAO

MS. ANDREA MOORE

DR. SHUNDAR LIN

Appearing on behalf of the Illinois

Pollution Control Board

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217)782-5544

BY: MS. DEBORAH WILLIAMS

MS. STEPHANIE DIERS

MR. ROBERT SULSKI

MR. SCOTT TWAIT

MR. HOWARD ESSIG

MR. RAY SMOGOR

BARNES & THORNBURG

One North Wacker Drive

Suite 4400

Chicago, Illinois 6606-2833

(312)357-1313

BY: MR. FREDRIC P. ANDES

Appearing on behalf of the Metropolitan

Water Reclamation District

HEARING OFFICER TIPSORD: Good

morning. My name is Marie Tipsord. I've

been appointed by the Board to serve as

hearing officer in this proceeding entitled

Water Quality Standards and Effluent

Limitations for the Chicago Area Waterway

System and Lower Des Plaines proposed

amendments to 35 Ill. Admin. Code 301, 302,

303, and 304. The docket number is R08-9.

As we discussed, due to a family emergency

Dr. Girard is not with us today, but for him

to my left is board member Thomas Johnson.

Also present are board members Andrea Moore

to my right and Dr. Shundar Lin. Also to my

immediate right is Anand Rao for technical

staff.

This is our eighth set of hearings

to be held, and the purpose of today's

hearing is to continue hearing testimony from

the participants other than the proponents,

the Illinois Environmental Protection Agency.

At the close of hearing on November 17, we

had finished with 18 witnesses from the

Metropolitan Water Reclamation District of

Greater Chicago, and we'll continue with the

district starting with Dr. Scudder Mackey to

be followed by Jennifer Wasik, and if we have

time in these two days Samuel Dennison. The

testimony will be marked as an exhibit and

entered as if read. After marking the

prefiled testimony as an exhibit, we will

then proceed to questions for the testifier.

And I believe for Dr. Mackey the only

prefiled questions are from the IEPA.

MS. DEXTER: We have some, too.

HEARING OFFICER TIPSORD: I'm sorry.

The Environmental Law and Policy Center has

some as well. Anyone may ask a follow-up

question, and you need not wait until your

turn to ask questions. I do ask that you

raise your hand, wait for me to acknowledge

you. After I've acknowledged you, please

state your name and whom you represent before

you begin your questions. Please speak one

at a time. If you're speaking over each

other, the court reporter will not be able to

get your questions on the record. Please

note that any question asked by a board

member or staff are intended to help build a

complete record for the Board's decision and

not express any preconceived notion or bias.

I plan to try to go to around 5:00 today. If

we have a natural break before then, we'll

break then. We'll also have about an hour

for lunch.

Member Johnson, do you have

anything to add?

MEMBER JOHNSON: No. I suspect the

day will come when we'll all look back fondly

on Day 22, but.

MEMBER MOORE: Tomorrow.

MEMBER JOHNSON: Thanks for coming,

and we'll get started.

HEARING OFFICER TIPSORD: Mr. Andes,

will you have your witness sworn in.

(Witness sworn.)

MR. ANDES: I have a copy of the

prefiled testimony.

HEARING OFFICER TIPSORD: All right.

We will mark that as Exhibit No. 179, if

there's no objection. Seeing none, it's

Exhibit 179. By the way, I haven't found out

what the exhibit record is, but the hearing

is 35 days, so.

MS. WILLIAMS: Thank you.

HEARING OFFICER TIPSORD: And with

that, we'll begin with the IEPA.

MS. DIERS: Good morning, Dr. Mackey.

My name is Stephanie Diers with Illinois EPA.

I'll start with our prefiled questions. And

I'm going to go to Page 97 of those. After

looking over them and bouncing around a

little bit, so I'm going to try to do a

better job keeping it in line with the

record. I'm going to start with Question 13.

On Page 3 of your prefiled testimony, you

mention that you will provide an alternative

strategy that integrates all of the

fundamental habitat characteristics necessary

to maximize the productive and ecological

capacity of the CAWS. You proceed to say on

Page 4 of your prefiled testimony that

biological characteristics are also an

important element of aquatic habitat but will

not be discussed in detail in this testimony

or not included in Figure 1.

And the question is by not

including biological characteristics, how are

you integrating all characteristics as

mentioned on Page 3 of your prefiled

testimony?

MR. MACKEY: As stated clearly in my

prefiled testimony on Page 4, and contrary to

what's implied here, I do believe that

biological interactions are a fundamental

part of how an organism relates to its

environment. But that is not what I was

asked to review or comment on in my

testimony. My testimony is focussed

primarily on how aspects of physical habitat

were considered and evaluated by the Illinois

EPA with respect to the CAWS. Other

witnesses will discuss in more detail the

biological aspects of the CAWS. In other

words, I'm a geologist. I'm not a biologist,

okay, and I do not feel qualified to address

what I consider to be purely biological

questions, nor is that what I was asked to

do.

MS. DIERS: And do you know who the

biological witnesses are to address those

questions to?

MR. MACKEY: I believe Sam Dennison

from the District. I believe he's a

fisheries biologist, ecologist. And I

believe Jennifer Wasik has a biological

background as well. I'm not sure that that's

what she will be speaking to.

MS. DIERS: Moving on to Question 14.

What do you mean by maximize the productive

and ecological capacity?

MR. MACKEY: I use the term maximize

the productive and ecological capacity to

mean healthy self-sustaining aquatic

community that is balanced and supported by

diverse habitat structure. I believe this

definition would be compatible with a concept

of the Clean Water Act general use waters

aquatic life use designation. However,

physical habitat limitations within the CAWS

do not provide the diverse habitat structure

necessary to meet Clean Water Act general

aquatic life use goals. Irrespective of

improvements in water quality or as proposed

in IPCB R08-9, to establish appropriate and

attainable aquatic life use goals in the

CAWS, it is necessary to consider all of the

fundamental habitat elements, not just the

water quality element.

MS. DIERS: When you say fundamental

habitat, what are you referring to?

MR. MACKEY: What I'm talking about

are the components that are illustrated in

Figure 1 of my prefiled testimony. You're

talking primarily about energy, you're

talking about biology -- not biology. I'm

sorry. Substrate which is the geology. And

you're also talking about water mass

characteristics or the hydrology of the

system. So from a perspective of physical

habitat, I'm talking about the three

fundamental physical components that, when

integrated together with appropriate ranges,

actually represent usable habitat for a

particular species, organism, or, if you

want, community or ecological function.

MR. ANDES: We have copies of that

particular figure.

HEARING OFFICER TIPSORD: And this is

the identical Figure 1 in the testimony?

MR. MACKEY: Yes.

HEARING OFFICER TIPSORD: For ease of

referring to it here today, and since this

one is in color and mine is not, we will mark

this.

MR. MACKEY: I did that last night,

okay?

HEARING OFFICER TIPSORD: We will mark

this as Exhibit No. 180 if there is no

objection.

Seeing none, it's Exhibit 180.

MR. MACKEY: This diagram was

originally put together for a paper that I

wrote for the International Joint Commission,

my national commission in the Canada and the

U.S., where I was asked to evaluate and

actually define the concept of physical

integrity with respect to the Great Lakes

Water Quality Agreement which is currently

under review by both federal governments for

a provision.

MS. DIERS: So this figure that you

put together is this a concept you developed?

MR. MACKEY: It's one that, yes, I

developed even though there are other types

of conceptual systems, if you want, that are

very similar to this.

MS. DIERS: What would those be?

DR. MACKEY: In terms of other

systems?

MS. DIERS: Yes.

DR. MACKEY: There was a publication

that was put together that looked at how to

classify habitats basically in lake systems

where they have not a similar diagram, but a

similar set of characteristics that when

integrated together also are describing

habitat.

MS. DIERS: So this concept that we

are talking about in Figure 1, did you design

it for lakes?

DR. MACKEY: No. This actually, the

interesting thing is that, No. 1, yes, it was

designed initially for use in the Great

Lakes, but it also translates very nicely

into riverine systems. Because physical

habitat is physical habitat, whether it's in

a lake system or whether it's in a riverine

system. And the fundamental components here

are present in a riverine system as well such

as the CAWS. For example, when you look at

the right-hand column here on this diagram,

you see the topic of energy estimated from

hydraulic calculations for oscillatory and

unidirectional flows. On oscillatory flows,

you're talking about the back and forth

movement due to wave action, and that

typically is what will either transport

sediments or imparts energy into the water

column. In riverine systems, it's

predominantly unidirectional flows, where you

have flow from upstream to downstream, water

does flow down hill. So this diagram is

actually applicable to both types of

environments.

MS. DIERS: And have you used this

concept on any other river besides -- I

assume -- I guess I should start first you've

used this concept on the CAWS right now?

DR. MACKEY: Yes.

MS. DIERS: Okay. Have you done it

with other rivers besides the CAWS?

DR. MACKEY: Yes.

MS. DIERS: And what rivers would

those be?

DR. MACKEY: I've worked on the Maumee

River in Northwest Ohio, the Sandusky River

in Northwest Ohio and the Grand River in

Northern Ohio. I've worked on the Detroit

River, I've applied it to the Don River in

Toronto, Ontario Canada, to the Rouge River

and to the Dufference (ph.) River, all in

Ontario, Canada, in terms of specific

evaluations.

MS. DIERS: And are those rivers that

you just mentioned, are they comparable to

how the CAWS is set up like the nonwadable

have a lot of impact on the system? Are

those comparable to that?

DR. MACKEY: They have -- yes and no.

The answer to that question is that it's an

ending river. There are navigable portions

in many cases where you can't wade. It's too

deep, unless, perhaps, you've a professional

basketball player. There are wadable

portions as well. And I have used this

approach by evaluating these different

fundamental elements in all these riverine

systems in both wadable and nonwadable areas

of those rivers.

MS. DIERS: I'm going to go back to

our prefiled question 15. And the question

is what is this strategy an alternative to.

When you're using a strategy that was in your

prefiled testimony on Page 3 where you said

your alternative strategy.

DR. MACKEY: If I recall, your

question is focussed on as an alternative to,

and I think what I am proposing here is

something that's different than the apparent

focus of the Illinois EPA on water quality in

lieu of almost any other habitable element.

It's almost an exclusive focus on the

hydrology, water quality aspect, and really

didn't pay much attention to the substrate or

the energy conditions within the CAWS. Some

of these other examples in particular that

are important from habitat perspective, which

is what I focus on as well, is what's the

structure and the pattern and the

connectivity of these different types of

habitats in these riverine systems as well.

That is extremely important. And I think

there's a quote by Yoder and Rankin in 1998

out of one of their papers which I included

in my prefiled testimony. And it basically

says this: Because biological integrity is

influenced and determined by multiple

chemical, physical, and biological factors, a

singular strategy emphasizing the control of

chemicals alone does not assure the

restoration of biological integrity. In

other words, we need to look at the whole

package, not to just one very narrow portion

of that package.

HEARING OFFICER TIPSORD: For the

record, that quote is actually on Page 4 and

5 of your prefiled testimony, which is

Exhibit 180 or 179.

DR. MACKEY: That's correct.

MS. DIERS: I'm going to move on to

Question 19. Would the physiochemical water

standards proposed by Illinois EPA, if met,

fail to support attainment of the aquatic

life goals proposed by Illinois EPA for the

CAWS?

DR. MACKEY: Well, first, Illinois EPA

has not presented any data or information

that would support the contention that an

incremental increase in water quality

standards will result in attainment of the

proposed aquatic life use goals. According

to the testimony presented by Illinois EPA,

the increase in the dissolved oxygen standard

for Aquatic Use A Waters is designed to

protect early life stage fish based on the,

quote, undocumented assumption that fish

spawning is occurring within the CAWS.

However, no data or evidence has been

collected by the District or the CAWS UAA

contractors to indicate that spawning

activity has occurred in the CAWS. No eggs

or larval fish indicative of spawning

activity have been collected nor have fish

been observed and actively spawning within

the CAWS. Until spawning activity is

observed directly and/or eggs or larval fish

are recovered from potential spawning sites,

one cannot conclude that fish are spawning or

propagating in the CAWS.

Second, Illinois EPA has

suggested that different size classes of

fish -- different size classes of fish may

indicate the presence of an early life stage

fish. But different size classes are not

determinative of spawning or reproductive

activity. Different size classes could be

indicative of different growth rates and/or

the presence of different strains of the same

species. I know, based on some of the work

that I've done in Lake Erie with the

fisheries biologist in the agencies, that we

do see some substantial differences in the

size classes of fish, even though they are

the same, and it's more related to growth

rates and productivity and food supply and,

in part, water temperature than whether or

not these fish are coming from spawning

substrates.

Again, unless there's some direct

evidence such as either observing or sample

collection that link these fish to specific

spawning locations within the CAWS, these

fish could just as easily have migrated from

areas outside of the CAWS in either from Lake

Michigan or perhaps another tributary.

Third, with respect to

physical habitat, review of prior reports and

associated literature suggest that these

factors such as a lack of habitat

availability and diversity are more limiting

than degraded water quality in the CAWS. For

example, the CAWS UAA report on Page 5-3

states, "Improvements to water quality

through various technologies like reaeration

may not improve the fish communities due to

lack of suitable habitat support fish

populations. Unless habitat improvements are

made in areas like the Chicago Sanitary and

Ship Canal, additional aeration may not

result in the attainment of higher aquatic

life use. Ignoring their recommendations of

the CAWS UAA contractor, Illinois EPA has

recommended result oxygen standards that are

in, in essence, identical to general use

dissolved oxygen standards for the Type A

waters.

And, fourth, the implicit

assumption in Illinois EPA's proposal is that

improvements in water quality alone are

sufficient to attain the aquatic life uses

proposed by Illinois EPA and that the CAWS is

not habitat limited. I believe that is

incumbent upon Illinois EPA to demonstrate

that there is sufficient aquatic habitat

available in the CAWS to attain the proposed

aquatic life uses, and to show that the

system is not habitat limited.

Unfortunately, Illinois EPA has not provided

any data, information, or analyses to show

that there is sufficient aquatic habitat to

support attainment of the appropriate --

sorry -- attainment of the proposed aquatic

life uses in the CAWS.

We will have a better

understanding of the habitat conditions when

the ongoing habitat evaluation and

improvement study has been completed. Only

after comprehensive evaluation of habitat can

this question be answered properly. In other

words, we really don't have enough

information on the physical habitat and

characteristics in the CAWS to determine

whether or not the system -- if there is

enough habitat there to actually support the

proposed aquatic life uses.

HEARING OFFICER TIPSORD: Miss Dexter?

MS. DEXTER: Jessica Dexter. Do you

do any fish sampling yourself?

DR. MACKEY: No, I do not.

MS. DEXTER: Do you know anything

about the limitations of the equipment that

has been used for sampling?

DR. MACKEY: I have some familiarity

with the limitations. But, again, I would

qualify that statement that I am not a

fisheries biologist, and so that any answer I

may give will be from basically a lay

person's perspective.

MS. DEXTER: All right. So you might

say that your opinion on the samples is also

qualified down as -- You're not a biologist,

so what you're saying about the -- about the

biology --

DR. MACKEY: In my responses here and

in my prefiled testimony, I'm basically

quoting from other sources from people who

have more expertise in this issue than I.

MS. DEXTER: Thank you.

MS. DIERS: Where are you quoting

from?

DR. MACKEY: I was referring to the

life -- Actually, there's a report from the

District that discusses a lack of early life

stage fish. I believe it was a report 98-10.

It was an attachment to my testimony.

HEARING OFFICER TIPSORD: It was

listed as a reference, but I'm not sure it

was an actual attachment.

DR. MACKEY: Okay.

HEARING OFFICER TIPSORD: Let me

check. I'm looking right now.

DR. MACKEY: It may have been as an

attachment to the original report, a longer

piece that was in support of the prefiled

testimony. But I do believe we did include

that.

HEARING OFFICER TIPSORD: Yes. It's

M-3, attachment M-3.

MS. DIERS: Have you seen any reports

on the CAWS that shows that spawning is not

occurring in these waters?

DR. MACKEY: No.

MS. DIERS: I'm going to go to

Question 20. On Page 4 of your prefiled

testimony, you mention that fish will not

propagate successfully if spawning habitat is

not connected, connected is in quotes, to

suitable nursery and forage habitats. If all

detrimental reversible human impacts were

mitigated in the CAWS, do you believe that

there would be insufficient spawning habitat,

nursery habitat, and foraging habitat in the

CAWS to support the aquatic life uses

proposed by Illinois EPA for these waters?

And what biological information do you base

this conclusion on?

DR. MACKEY: Well, first, the implicit

assumption in Illinois EPA's proposal is that

improvements in water quality alone are

sufficient to attain aquatic life uses,

proposed aquatic life uses, and that the CAWS

is not habitat limited. And, once again,

I'll state I believe that it's incumbent upon

Illinois EPA to demonstrate that there was

sufficient aquatic habitat available in the

CAWS to attain the proposed aquatic life uses

and to show that the system is not habitat

limited.

Second, the habitat assessment

and analysis used by Illinois EPA propose

these aquatic life use designations were

deficient and severely flawed. The existing

data and analyses are not sufficient to show

that the CAWS has enough spawning, nursery,

or foraging habitat to support attainment of

the proposed aquatic life uses.

Third, the CAWS is an

artificial system originally constructed to

convey wastewater and serve as a commercial

waterway to promote commerce. The CAWS still

performs those functions, and those functions

are not likely to change in the foreseeable

future. Fish habitat and ecological function

were not on the radar screen when the

waterways were originally constructed. It is

not reasonable to expect that the system will

have habitat characteristics similar to a

natural system, nor is it reasonable to

assume that existing physical habitats within

the CAWS are sufficient to support the

proposed aquatic life use goals.

So based currently on the

current -- currently available habitat data,

I do not believe that there is sufficient

habitat diversity or connectivity to support

the aquatic life uses proposed by Illinois

EPA for these waters.

I would also say, as stated in

my prefiled testimony on Page 14, I think

we've already went through this comment. But

basically, again, restate this improvement to

water quality through various technology like

reaeration may not improve the fish

communities due to a lack of suitable habitat

to support the fish populations. And unless

habitat improvements are made in areas like

sanitary -- the ship sanitary canal,

additional reaeration may not result in the

attainment of higher aquatic life uses.

MR. ANDES: Is that a quote from the

UAA report?

DR. MACKEY: Yes, it is.

HEARING OFFICER TIPSORD: The CAWS UAA

Attachment B to the proposal.

DR. MACKEY: Also in my prefiled

testimony I listed several other potential

limiting factors. One is physical

limitations such as a lack of shallow bank

edge habitats and riparian cover, lack of

in-stream habitat cover and diversity, lack

of suitable substrates and substrate

heterogeneity or altered flow regimes. And

we're talking about flow, flow magnitude, and

also changes in water levels.

Second, biological limitations

such as limited, primary productivity,

degraded macrobenthic communities which is,

in essence, a food supply issue, predation or

lack of appropriate spawning and nursery

habitats.

Third, chemical limitations

such as legacy contaminants in the sediments.

And, fourth, functional

limitations such as navigation, prop wash

and/or turbulence, sediment resuspension and

waves from commercial vessels moving up and

down through the channel, and conveyance of

waste and flood waters. And that -- we're in

a regulated flow regime which regulates flows

in the system, but also regulates water

levels in part for navigation purposes.

In terms of the biological

information, I would refer you to

Attachment 1 of Dr. Melching's prefiled

testimony, where based on species specific

habitat suitability index models, HSIs, he

concludes that the CAWS is No. 1 for habitat

for adult smallmouth bass and channel

catfish; two, is near optimal habitat for

adult largemouth bass which is consistent

with the fish abundance data report in the

CAWS UAA report which I believe is Attachment

And, furthermore, Dr. Melching

suggests that the high abundance of

largemouth bass demonstrates that current

water quality of the CAWS is sufficient for a

healthy largemouth bass community, and that

higher dissolved oxygen standards are not

needed. However, Dr. Melching does state

that the CAWS does not have suitable habitat

to support early life stages of these target

fish species, and that's a result of the

habitat suitability indeces analysis.

MS. DIERS: So you don't have personal

knowledge of this? You're going at what

Melching did and quoting back to us what he

said? Is that --

DR. MACKEY: Well, that's in part

true. But I've also spent some time on the

waterway. I've collected side-scan sonar

data where I'm actually able to image and

develop an image of the entire channel bottom

substrate in a continuous nature. So I have

a very good feel for what the different types

of substrates are, what the in-stream habitat

structures are. And compared to a natural

system, the CAWS system is extremely limited

in terms of the habitat types, but also the

patterns and the juxtaposition of different

types of habitat next to one another, which I

believe are critical to a naturally

functioning system that would support

appropriate aquatic life uses.

MS. DIERS: When were you on the

waterway?

DR. MACKEY: I've been on the waterway

intermittently for the last probably four

months.

MS. DIERS: And was that -- Were you

on the waterway to do this habitat study that

you're doing for the District? Is that

your --

DR. MACKEY: I have a small

subcontract with LimnoTech to provide some of

this data on a reconnaissance basis to

evaluate its potential utility to help

develop a more formal index that could be

applied to urban systems.

MS. DEXTER: Have you been on the

entire waterway?

DR. MACKEY: I have not been -- I have

been on the entire waterway, yes, on various

vessels. With respect to this work, I've

only done a portion of the waterway. Again,

this is a reconnaissance study. It's not a

complete survey of the entire waterway system

at this time.

MS. DEXTER: Which portions have you

been on?

DR. MACKEY: I have been on about

two-thirds of the Cal-Sag channel. I have

been on several different segments of the

Sanitary and Ship Canal, I have been on the

north branch, of the upper portion of the

north branch and the lower portion of the

North Shore Channel in terms of using the

side-scan sonar. I've also been in the

Indiana harbor area, and that was a separate

project that I was under contract with the

United States Coast Guard doing similar types

of surveys in Lake Michigan.

MS. DEXTER: Thank you.

MS. DIERS: Sir, are you relying on

the habitat suitability indeces for your

biological support that you're offering

today?

DR. MACKEY: I would have to say that

that is part of it. And really I'm not -- I

wouldn't say that I'm necessarily relying on

biological data. I am relying predominantly

on what I see in terms of the types of

physical habitat and the physical habitat

characteristics that I observe in the system.

And also relying on my, I think, considerable

expertise in evaluating other natural

systems. And this system is definitely

different than a natural system.

MS. DIERS: Do you know if

Dr. Melching was a biological expert?

DR. MACKEY: I do not believe that he

is.

MS. DIERS: Question 21: What do you

mean by connected, that we had in quotes,

based on your testimony on Page 4?

DR. MACKEY: Okay. This will be a

short answer, okay? What I mean by connected

is it's accessible land organism subject to

appropriate time, distance, and energy

constraints. This term is based on the

concept of a functional habitat mosaic. In

other words, the distribution, pattern, and

juxtaposition of habitats needed to support a

healthy balanced self-sustaining aquatic

community.

MS. DIERS: I'm going to go to

prefiled Question 24. On Page 4 of your

prefiled testimony, you mention that there

are three major classes of variables that

must be considered when assessing aquatic

habitat: Flow regime, substrate, and water

chemistry and quantity. What do you mean by

when assessing aquatic habitat?

DR. MACKEY: When assessing aquatic

habitat means an assessment of the

physical -- chemical characteristics and the

physical structure, processes, and energy

that allows specific life stages of aquatic

organisms to use an area or location as

habitat. And, again, I would refer back to

Figure 1 which is this, the three-ring

diagram, this sort of like half of the

Olympic rings, I guess, here. And the

definition of physical habitat provided in my

prefiled testimonies on Pages 3 and 4 that

clearly describe a conceptual foundation used

to assess physical habitat, and I quote,

"Physical habitats are defined by a range of

physical characteristics and energy

conditions that can be delineated

geographically to meet the needs of the

specific species biological community or

ecological function. To be utilized as

habitat, these physical characteristics and

energy conditions must exhibit an

organizational pattern, persist, and be

reputable elements that are essential to

maintain a sustainable and renewable

resource. The reputable nature of habitat

implies that the natural processes that

create physical habitat must be reputable and

may persist over a range of spatial and

temporal scales.

MS. DIERS: I'm going to go to

Question 26. On Page 4 of your prefiled

testimony, you state: All of these variables

must be spatially and temporally connected by

physical and biological processes in ways

that support diverse aquatic communities.

What do you mean by diverse aquatic

communities?

DR. MACKEY: Diverse aquatic community

means biological community composed of

different aquatic species and taxa. In this

context it means a diverse, balanced, healthy

aquatic community created by the interaction

of chemical, physical and biological

processes within the CAWS.

MS. DIERS: Is it true that the

Illinois EPA is proposing an aquatic life use

designation that is below the Clean Water Act

goal?

DR. MACKEY: That's an interesting

question. From a narrative perspective, the

answer would be yes in the way it's described

in the Illinois EPA statement of reasons.

But then when you look at the dissolved

oxygen standards, let's say they're

associated with the Type A waters, they're,

in essence, the same as general use water

standards. So I don't really see the

difference here. In other words, okay, yeah,

you've said that your proposed aquatic life

uses are below the general use criteria. But

the criteria or the standards are, in

essence, identical. So I don't see a

difference.

MS. DIERS: Can you explain how you

see that the Class A waters that you said the

Illinois EPA proposed is just like the

general use that was adopted from the

dissolved oxygen?

DR. MACKEY: Well, if I recall, and,

again, I'm not an expert on dissolved oxygen

and water chemistry, okay, but if I recall in

your -- I just want to refer to the proper

table here. Right. If you go to the

statement of reasons, Table 1, Page 50, there

is a table that is put together that

basically shows the different dissolved

oxygen standards proposed for the Type A and

Type B waters.

MS. WILLIAMS: What page?

DR. MACKEY: Page 50 on the Illinois

EPA statement of reasons.

MS. DIERS: We have Page 60. I don't

know if our pages are different, but.

DR. MACKEY: I'm sorry. It's the one

with the two little dark areas down at the

bottom here.

MS. DIERS: We have it Page 60 in the

statement of reasons.

DR. MACKEY: And basically I believe

it's 5 milligrams per liter is for the period

from March through July is the standard

that's been proposed for the Type A waters,

and I believe that is to protect early life

stage fish, and I believe the general use

water standard is also 5 milligrams per

liter.

MS. DIERS: Looking at this table, and

if you go to Chicago Area Waterway System

Aquatic Life Use A waters, is there a

seven-day mean of daily means proposed for

those waters?

DR. MACKEY: I don't know the answer

to that question.

MS. DIERS: I'm going to move on to

Question 27 of our prefiled questions. On

Page 5 of your prefiled testimony you state,

"This assessment should include an integrated

analysis of current physical habitat, flow,

temperature, water quality, and existing

aquatic communities."

Did the CAWS UAA, which was

Attachment B, include water quality,

sediment, temperature, habitat, biological

and flow information?

DR. MACKEY: I guess I would have to

answer yes. But I'm going to make that a

qualified yes. Because as described in my

prefiled testimony, I believe the Illinois

EPA's analyses of these data to be inadequate

and flawed. In fact, from what I can gather

from Illinois EPA's statement of reasons and

its subsequent testimony, the process used by

Illinois EPA was not based on clear

scientific methodology, at least that I can

determine from reading the testimony today.

But, rather, was based more on general

perceptions as to what areas had good aquatic

life potential and what areas had poor

aquatic life potential based on the data

collected by the CAWS UAA contractor, and,

perhaps, some other systems.

For example, in an artificial

system such as the CAWS, an assessment of

physical habitat is necessary, and I believe

required, to assess whether or not proposed

aquatic life uses can be attained. An

incomplete habitat assessment such as I

believe has occurred in the CAWS will lead to

the development of unattainable aquatic life

uses. The habitat assessment and analyses

used by Illinois EPA to propose these aquatic

life use designations were deficient and

severely flawed in my opinion. Illinois EPA

has not provided any data, information, or

analyses to show that there is sufficient

aquatic habitat to support attainment of the

proposed aquatic life uses in the CAWS or

that the system is not habitat limited.

And with respect to water

quality, Illinois EPA has not presented any

data or information that would support the

contention that an incremental increase in

water quality standards will result in

attainment of the proposed aquatic life use

goals. In the CAWS UAA report on Page 5-3 it

states, improvements to water quality through

various technologies like reaeration may not

improve the fish communities due to lack of

suitable habitat to support fish populations.

Unless habitat improvements are made in areas

like the Chicago Sanitary and Ship Canal,

additional aeration may not result in the

attainment of higher aquatic life use.

Illinois EPA ignored the data

and the recommendations made by the UAA

contractor and recommended dissolved oxygen

standards that are, in essence, identical to

the standards for use in the general use

waters.

MS. DIERS: Did you say Illinois EPA

has concluded that the CAWS is not habitat

limited?

DR. MACKEY: I'm saying that I don't

believe the Illinois EPA has shown that there

is adequate habitat to support proposed

aquatic life uses.

MS. DIERS: I'm going to move on to

Question 28. On Page 5 of your prefiled

testimony, you state, "Unfortunately the CAWS

UAA report and supporting documents submitted

by IEPA in this rulemaking effort did not

meet these criterion, contain data area and

flaws in the methodology used to develop the

proposed aquatic life use designation. Can

you please explain what data errors and flaws

you're referring to?

DR. MACKEY: Okay. It's very

difficult, it has been very difficult to

evaluate habitat in the CAWS and exactly what

Illinois EPA has done. Because in some of

the testimony there are apparently some

errors reported in the QHEI values that were

used in part of the assessment. And this

specifically I am referring to the hearing

testimony of Essig on April 23, 2008, Pages

192 and 193, where he reports that the values

reported on Table 3 on Page 5 of the Rankin

2004 report are supposedly the correct

values. The corrected value -- are the

supposedly correct values. Table 2, which is

what was used by the UAA contractor in their

analysis, apparently contains incorrect QHEI

values. There are four sites where the

values were transposed: North Shore Channel

had a value, original value of -- I'm sorry.

Had an original value of 54, and, in fact,

that was the reference site that was used,

the IBI reference site that was used by the

CAWS UAA contractor in that analysis. But

apparently that value was transposed with the

Route 83 on the Cal-Sag channel. And so the

new revised value is a 42. So it's dropped

considerably in terms of its habitat quality.

And at the Dempster Road site on the North

Shore Channel, the original value was a 47.5,

which is -- it's a poor habitat, but it's

probably one of the better habitat areas

within the CAWS. But the revised values are

now down to 37.5. And that, the Dempster

Road, that North Shore Channel Dempster Road

site was transposed or switched with the

Cicero Road site on the Cal-Sag channel. And

we have a hand-out that we'd like to show you

that shows the changes in a bit more detail.

MR. ANDES: This will need to be an

exhibit.

HEARING OFFICER TIPSORD: I've been

handed what is titled at the top Original

QHEI Scores and a table below that with the

corrected QHEI values. If there is no

objection, we will mark this as Exhibit 181.

Seeing none, it's Exhibit 181.

DR. MACKEY: What this exhibit is

showing and what it is, it's based on Figure

5-2 on Page 59 of the CAWS UAA report. And

this diagram has issues which we don't need

to discuss right now, but basically is a way

the contractor chose to display geographic

distribution of IBI scores, fish IBI scores

which is a measure of the health of the

aquatic community, at least the fish aspect

of it. And then the black dots are the QHEI

scores which is a measure of habitat quality,

okay, and of macrohabitat quality, in

essence. What I'm going to ask you to do is

let's not focus on the top plot, but let's

look at the bottom plot, because that's what

we're discussing right now. What I had

plotted there on Figure 5-2 is, No. 1, that

the colored areas are where Illinois EPA has

proposed aquatic life use A and B waters,

okay, to give you a feel for what's

apparently better or not so good. Secondly

what I've shown, there are three horizontal

red lines, and those red lines represent

boundaries that are established by Ed Rankin

and his group that delineate different types

or narrative scores for -- different

narrative descriptions for the QHEI values.

And those are listed on the right-hand side.

A QHEI value of 30 is very poor, 30 to 45 is

poor, 45 to 60 is fair, and then above 60 is

good habitat conditions. And then, again,

take a look at the black dots. And what I've

done, have actually put the corrected QHEI

values there. You can see on the bottom are

the geographic locations, and the locations

that are outlined in the red box are the ones

where the changes were made. And what I'm

showing is there is an open circle with a

couple of horizontal lines. That was the

original score, and actually was the score

used by the UAA CAWS contractor, and I

believe also used by Illinois EPA in their

initial designation process. And what's

happened is with the changes is that you can

see for the North Shore Channel, the one to

the furthest to the left, that we've had a

drop from a fair habitat to, in essence, a

poor habitat. For the next one, which is the

North Shore Channel at Dempster Street, it's

listed there, not Dempster Road. You also

see a substantial drop in the QHEI scores.

And then if you move to the right side of

that figure, you'll see the Cal-Sag Channel,

it's Cicero Ave, is that what was originally

classified as poor habitat has now moved up

to the fair habitat area. And the Cicero

Road site has also moved from the poor to

fair. So those are the changes.

MS. DIERS: Where did you get the

corrected QHEI values at?

DR. MACKEY: That was from the

testimony of Essig. It was in the hearing

testimony. And they provided -- they said

those were transposed values. And those were

the values that were reported in the hearing

testimony. And the point is is that, and

this is really important, that these

transposition errors can only be verified by

examining the original field data sheets that

score each of the six major metrics and/or

submetrics that are used to calculate the

QHEI scores. Based on the hearing testimony,

we understand that Illinois EPA has not

reviewed the original field data sheets to

validate the reported QHEI scores. In other

words, which of these values are real? We

really don't know until we look at the

original data sheets, okay?

In a follow-up question as to

whether or not Mr. Rankin would change his

recommendation based on the revised scores,

the response from Illinois EPA was we have

not fully examined all of the corrected

scores. And this is testimony by, and let me

pronounce, Smogor, is that correct, on April

23, 2008 on Page 212. Through the District

and through Mr. Andes, I have requested

copies of the original field data sheets to

evaluate how different metrics and submetrics

were scored. These requests apparently went

to Illinois EPA, and we understand that

Illinois EPA does not have copies of the

field data sheets inhouse, nor did they

review those original field data sheets prior

to submitting their proposal to the Board.

In my mind, if you have a question about what

these numbers are and if they're in the right

place, you need to go back to the original

field data sheets to see exactly how they

were scored to be sure what the values were,

which is correct. I don't know because I

don't have the original data. I mean I'm not

so good at adding things. You know, my

fingers and toes and if it goes above that I

sometimes have problems. But it would be a

very simple matter to go back to those

original field data sheets, add those things

up, and see what the real scores are.

A couple other notes tied to

that. QHEI scores have some value from a

very regional perspective. But, for me, the

real intrinsic value in these scores is what

are the submetric scores, what are the

metrics telling us. Because if you're

looking for restoration, improvement, or

enhancement opportunities, a value of a 54

doesn't tell you anything about, well, what

is it really that needs to be fixed in the

system, you know. What do you have to do to

reach a proposed aquatic life use. And if

you just have, well, it's a 54 and you say,

well, is it pool depth, is it pool riffle

sequences, are they there or are they absent.

Is there in-stream habitat structure there,

is it not there, what are the substrate

materials like? Well, the score is a 54.

That doesn't tell you anything. And I don't

see how you could possibly use the QHEI

scores to do any sort of habitat assessment

without actually looking at the field data

sheets to see exactly what's going on at each

of these sites in part because, No. 1, you

need to assess whether or not the problems

with the habitat are systemic, are they

across the entire watershed in the entire

system or are they a very local phenomenon.

And those scores are not necessarily going to

tell you that.

MS. DIERS: Do we get any value out of

these scores?

DR. MACKEY: As I said before, I think

you could use them for a general regional

macrohabitat assessment. But I think in

terms of actually trying to do -- to take

action or to determine what the actual

problems are, just a number is not going to

do it -- is not going to really help you out.

I would use the analogy of a

stock market. So I don't know what it is

today, I'm not sure I want to know what it's

doing today, but the stock market, a value of

8,000, okay? Well, six months from now it

may be up at 10,000. Then you say, okay,

well, what component of the economy has

really taken off here? Well, the stock

market scores, it's 8,000. The DOW is at

10,000. Those numbers are basically

meaningless, just an index. It doesn't tell

you about the underlying fundamental

structure or what the different components

are doing. It's the analogy, you just take

it right back to habitat. You need to

understand the details, you need to

understand what is happening with each of the

individual submetrics here.

MR. ANDES: Dr. Mackey, on that point,

you talked a little bit about reasons why you

might have questioned about the particular

new corrected values for those sites on your

chart.

DR. MACKEY: Sure. I'm going to ask

the Board, have any of you been on a boat on

the waterway or actually seen portions of the

waterway at all? I'm just curious.

HEARING OFFICER TIPSORD: The Board

has their offices in the Thompson Center, so

I think it's safe to say the board members --

DR. MACKEY: You've seen it. Okay. I

don't know. I'm clueless, all right, at

least in that respect. The reason I'm saying

it is that if right now with the corrected

revised scores, if you look at state

Route 83, the bridge at state Route 83 across

the Cal-Sag Channel, that right now, based on

the QHEI scores, is the best habitat

available in the CAWS. Have you seen state

Route 83 on the Cal-Sag Channel? Have you

looked at that area?

HEARING OFFICER TIPSORD: You need to

tell us about that area.

DR. MACKEY: Okay. Here we go. Okay.

It's on the Cal-Sag channel, the channel is

about 260 feet wide. Water depths there are

running around 12 feet. On the north side of

the channel for many miles there is a

vertical concrete bulkhead that rises up

about 8 to 10 feet off the water surface, and

there is silt that comes right up to the base

of that. So it's a straight-walled channel,

and there's not a whole heck of a lot of

habitat there. On the south side of the

channel, you have large limestone blocks,

bedrock slabs, some bedrock exposed. The

smallest blocks are, at least that I've

observed there, are in the order of 12 to 16

inches across. There is a small, very narrow

littoral zone, which is what I believe

Illinois EPA calls it. Water depths there

range from probably about two feet, and then

it just sort of slopes right down and grades

into a silt area along the flanks of both

sides of the channel. And based on the

side-scan sonar data, what you see in the

center part of the channel is bedrock. It's

exposed bedrock within the lower areas, those

small pockets are filled with silt, okay? So

you basically have, in terms of in-stream

substrates, you have basically two types of

substrate present there. You have hard

bedrock surface, you have silts on the flanks

of the channel and filling in some of the

lower impressions. And then on the north

side of the channel you have a concrete

bulkhead, and on the south side you have this

very coarse, it's almost like a -- It's

really not a revetment. It's, I think,

construction debris and material that was

left behind as people -- the channel was

built. And we have an exhibit that shows

some of these features. In terms of the

riparian habitat associated with it, it's a

good 12 to 15 feet up off the water column,

almost a vertical area.

MR. ANDES: Hold up for a minute.

DR. MACKEY: Sure. There is a

riparian area --

HEARING OFFICER TIPSORD: Dr. Mackey,

let's mark this first.

DR. MACKEY: I'm getting excited about

this. Okay.

HEARING OFFICER TIPSORD: If there's

no objection, I've been handed Calumet Sag

Channel Side-Scan Sonar Data State Route 83

Sampling Site. If there's no objection, I

will mark in as Exhibit 182.

Seeing none, it's Exhibit 182.

Go ahead, Dr. Mackey.

DR. MACKEY: Okay. We'll get to the

exhibit in just a second. With respect to

riparian habitat, there is some trees and

waterway available, but they're well back

from the channel. There is no overhanging

trees or brush anywhere near the water

surface or the water itself. And, in fact,

based on the side-scan data there is very

little wood at the bottom of the channel. A

little further to the east of here, though, I

did find a car in the center of the channel,

so we'll discuss that another time.

The exhibit that was just

handed out is an example of a side-scan sonar

data, and this was collected probably about

three weeks ago, three to four weeks ago.

And what I'm showing here is -- and these are

basically segments that are on the order of

several hundreds of feet long or greater.

And it's an area, on the right-hand panel

here, it's an area about a half mile east on

the Cal-Sag Channel of the Route 83 bridge.

And the panel on the left-hand side is an

area that it's about a half mile, located

about a half mile to the west. So I'm just

trying to give you a feel for what it's like.

And we can produce a continuous strip of the

entire channel bottom. What you're looking

at is side-scan sonar data. It's like an

aerial photograph, okay, except it's made

with sound rather than light. So it allows

us to pick up features on the bottom. We can

see shipwrecks, you can see cars, you can see

bedrock, you can see sand, you can see

riffles. And in one pass, I can basically

scan the entire width of the channel. So I

see what's on the bottom. And it's a very,

very useful tool for mapping different types

of substrate materials and different types of

structure on the bottom. This is what I do

for a living all over the Great Lakes, okay.

And on the right-hand side here, let's look

at the right panel. This is oriented

properly. Again, the channel is 260 feet

wide, so it's -- that's the scale that we're

looking at. Both along the north edge and

south edge of the channel we have a silt, and

you can see the bedrock area right in the

center of the channel exposed there. And, in

fact, if you look, there is sort of irregular

pattern of a pock marks there, and I suspect

that those are old drill hole sites, and they

were going to blow it out but they just

walked away. But those are remnants of the

old drill hole sites.

On the north shore, that black

line, is that vertical concrete wall. That's

what it looks like, a very hard surface

acoustically. So it will show up black on

this particular image. And on the south

shore you can actually see that coarse

shoreline. And the thing is is that you have

to consider the scale of this. These blocks

that you're seeing here are quite large, and

look at the scale. That's -- This channel is

260 feet wide, and those blocks, you can

discern them. So you know that those have to

be several feet across. On the left-hand

side you can see the same sort of features,

not quite as dramatic. Again, you have silt

along the edges of the channel, and in the

center you have bedrock exposed. And I

expect that's in part due to the prop wash

effects. The interesting thing on this is

that there is a swamp boat. You can see

that, sort of that block mass up there is

actually a steel, a small steel barge which

has actually sunk. The only thing that's

sticking out of the water is the cabin. And

then to the right, even though it's very

small in this case, there's actually a vessel

that you don't even know there, that's a

sunken vessel sitting on the bottom. So that

gives you an idea of the scale.

MR. ANDES: If I can ask, so under the

corrected scores, this is the best habitat in

the CAWS?

DR. MACKEY: That's correct, right.

Now, I don't have a similar image. I have

collected side-scan sonar data up on the

north branch and the North Shore Channel.

The habitat conditions there are considerably

different. It is, in many areas, heavily

vegetated. There are overhanging trees. The

channel isn't quite as deep. It's about

eight to ten feet deep, and the side-scan

sonar data shows three or four different

substrate types there. It appears that you

have sand, you have cobbles and boulders, you

have silt. So you have a juxtaposition of

different types of substrate materials which

may actually be somewhat useful in terms of

you have potential spawning habitat, nursery

habitat, or just refuser (ph.) for different

types of organisms.

MR. ANDES: And that Sheridan Road

site in the North Shore Channel I understand

was the highest quality reference stream for

this assessment by IEPA?

DR. MACKEY: It was done by the UA --

by the CAWS UAA contractor, yes. That --

Those sites also have some of the highest

IBI, fish IBI scores within the CAWS as well.

So I have some issues. Even if Ed Rankin's

scores, if we get the original field data

sheets and we look at them and, indeed, he

ranks this as a 54, I would have serious

concerns about that based on this

information. All due respect to Ed Rankin.

He did not have access to a side-scan sonar.

And if I understand correctly, Sam Dennison,

who I believe will be a witness coming up

shortly or sometime down the road, depending

how long it takes to get through this, Sam

Dennison was with Ed when they actually did

the habitat assessments. And the way they

did the habitat assessments is they used a

steel rod and they just sort of drip it

around and were poking the bottom. And that

can be a very effective technique, but it is

very limited in terms of being able to

spatially connect all the different types of

substrates together.

MR. ANDES: So in terms of where we're

standing here, what you're saying is the

corrected scores indicate that the Cal-Sag

channel at Route 83 is the best habitat in

the CAWS, and you have reason to doubt that.

Am I right?

DR. MACKEY: I would not call this the

best habitat that I have observed in the

CAWS.

MR. ANDES: Now let's switch to north

shore channel at Sheridan Road which is used

as the highest quality habitat in the CAWS.

And what do the new corrected values tell you

there?

DR. MACKEY: There was a significant

drop in those scores, and they basically

went, I believe, from a fair habitat quality

to a poor habitat quality.

MR. ANDES: And what would that do to

the Agency's assessment if their referenced

highest quality stream is, in fact, in the

poor range?

DR. MACKEY: Well, it would

certainly -- I would have some questions

about the IBI scores from a comparative

perspective. In other words, one of the

reasons that you establish a reference stream

for an area is to say you try to find the

highest quality stream that you can to say

this is what you should be able to attain.

And it is the standard by which you measured

the other IBI scores in terms of the, let's

say, fish communities, okay? And if, for

some reason, your referenced stream really

doesn't represent the best of the best, then

your comparisons are not going to be terribly

meaningful in terms of when you're trying to

evaluate one area versus another, or in terms

of determining what is actually potentially

attainable in the system. The IBI system, as

I understand it, again, this is a more of a

biological indeces to which I do not claim to

be an expert. But from my understanding, and

as described in the CAWS UAA report as they

describe the IBI process, the establishment

of a reference stream is an important

component of that analysis for comparison.

MS. DIERS: Is there too much silt for

the water body to be unable to attain IEPA's

proposed aquatic life uses?

DR. MACKEY: It depends on where you

are in the system. I would probably say no.

And you have exposed bedrock here, and there

are areas -- I think there are some areas in

the CAWS where you may have sands, from what

I understand. I have not imaged that yet. I

have not been around the O'Brien Lochs and

whatever. But I don't believe that is a lack

of -- that is too much silt. I believe it's

a problem of not having enough of a diversity

of a substrate material. Let's go down a

slightly different path here. You've got me

on a roll here, okay, guys? This is

important from a geological perspective.

There's this concept, it's called provenance

in geology, okay? And what it means, it's a

very simple concept. And if you have a river

and it's flowing across to a watershed, the

river has plenty of energy, it has stream

pumps, and it can transport materials that

are available to it. And that's the key is

the materials that are available to it. In

northwest Ohio when you look at the Maumee or

the Sandusky River systems, you will find

that that's an old glacial lake plane with

virtually no sand available in that system;

very, very small percentage of the sand that

these rivers flow through. And so it's

unreasonable to expect these systems to be

sand rich. In other words, they have very

high suspend loads because the only material

available for them to transport is either

clay or silt because that's all that's there.

So let's switch that concept back to the

CAWS, all right? In many areas of the CAWS,

you've got limestone and bedrock. This thing

was carved out of bedrock, all right? Not

easily erodible material. What other

materials are available to be transported in

the system? Where is the sand going to come

from? Where is there sand exposed in the

CAWS that can be eroded by flows to actually

put sand in the system? Now, there is sand

in the system, I believe, but much of that

sand probably came from earlier this last

century before we put road salt on. We

probably sanded the streets and all that sand

went into the storm water sewers and

eventually worked its way into the CAWS. But

it's not a huge volume of sand. So if you

have no sand to transport, there's not going

to be any sand available to help construct

habitat. The same thing with gravel and

coarse sand and all of those really need

substrates that you need to perform, to

create spawning habitat if that's what you're

interested in doing here. Where is it going

to come from? The flows in the CAWS system

are highly regulated, all right? And

typically in a gravel bed stream you have

rock that's being tumbled and rolled because

of high flow velocities, and they get chipped

off and the rock gradually gets smaller and

smaller. And I think, based on the flows in

the Cal-Sag or in the San Ship or some of

these other channels, we're going to be

around for a long time before we see a lot of

the bedrock around here broken down into

gravel and coarse sand material. It's just

not going to happen in our lifetimes. And so

we have a severe limitation in terms of the

materials available to create the different

types of substrates and different types of

habitat structure in the CAWS. Okay.

MS. DIERS: Where did the UAA

contractors call the North Shore Channel a

reference stream?

DR. MACKEY: I believe if you looked

at -- I'll have to see if I can find the

page, but the Sheridan Road site was defined

as the reference stream for the CAWS system,

and I believe it's --

MR. ANDES: We can look for the page

and cite it later.

MS. DIERS: That's fine.

DR. MACKEY: It's explicitly stated.

They talk about the importance of the

reference streams and how this was the best

that they could do in the CAWS because this

was predominantly an artificial system.

MS. DIERS: I want to go back to QHEI.

Were high and moderate influence attributes

included along with the QHEI in Rankin's

report which was Attachment A?

DR. MACKEY: Yes.

MS. DIERS: So it's more than just a

number? I mean they're out there doing

observations, correct?

DR. MACKEY: Yes.

HEARING OFFICER TIPSORD: Miss Diers,

Attachment A, are you referring to the UAA

report?

MS. DIERS: Attachment R, I'm sorry,

was Rankin.

DR. MACKEY: I might point out that

that's Table 2, I believe, that you were

referring to. That has a number of different

metrics and submetrics there, but it doesn't

provide any sort of a meaningful waiting in

terms of what's there and what's not there at

the sites. There's a series of characters

that show up in it, but there are no scores,

per se.

MS. DEXTER: What parts of the CAWS

have the limestone channel that you

described?

DR. MACKEY: Bear in mind that I've

not been everywhere on the CAWS. What is

certainly a significant portion of the

Cal-Sag Channel has been cut out of bedrock.

The southern -- significant portion of the

southern section of the Sanitary and Ship

Canal has been disposed, and those are the

two primary areas where bedrock appears to be

exposed in the banks and/or where channels

were cut through bedrock.

MS. DEXTER: Did you see any evidence

that the limestone is eroding along the

sides?

MR. MACKEY: Yes.

MS. DEXTER: All right. And I'm not

sure I understood you correctly when you said

that there were no trees along the Cal-Sag

channel. Can you describe what you mean by

that?

DR. MACKEY: What I mean by that, I'm

referencing that with respect to water, the

aquatic system. There are many trees -- in

fact, I believe there's some forest

preserves, and it's really a pretty neat

area. But those trees are sitting back off

the channel. They're not trees that are

hanging over into the water for the most

part, nor did I observe much in the way of

any debris. I think maybe there were --

maybe I found three trees, trunks, if you

want, on the bottom of the Cal-Sag Channel in

the two-thirds of the area that I went.

There's not much wooded debris there at all.

MS. DEXTER: You wouldn't say that

there were no trees leaning over the Cal-Sag

Channel?

DR. MACKEY: No. I don't think I

would make -- I'm sure you could probably

point someplace that there's a branch or two

that hang over, but it's not the, let's say,

a more, if you're thinking about shading

effects or things of this sort, it's not the

type of thing where the trees are actually in

the water and providing some sort of shore

line habitat structure in water, okay?

MS. DEXTER: And on your side-scan

sonar data in Exhibit 182, you have a

littoral zone here indicated. How wide would

you say that is?

DR. MACKEY: In this location, my

guess is probably 18 to 20 feet apart.

MS. DEXTER: All right. And do you

know whether fish tend to live in the center

of a channel or if they might migrate towards

the sides of the channel?

DR. MACKEY: I don't know. I don't

know the answer to that question. I'm not a

fisheries biologist.

MS. DEXTER: Thanks.

MS. DIERS: I think we're back to

Question 29 in the prefiled questions. On

Page 6 of your prefiled testimony you state,

"These new aquatic life tiers were based on a

comparison of IBI percentile scores and QHEI

scores at each sample location." Are you

aware that it was discussed at the hearings

and that Illinois EPA indicated that current

biological conditions were not the primary

criteria used to determine the proposed

aquatic life uses?

DR. MACKEY: Actually, I'm unsure

exactly what methods or criteria were used by

Illinois EPA to determine the proposed

aquatic life uses. In the hearing testimony,

Illinois EPA stated that they used habitat,

for example, the QHEI scores, and individual

attributes to determine the attainable

biological potential of the waterway. And

that's in Smogor's testimony on January 29,

2008, on Pages 238, 241, and 243. Illinois

EPA also stated that, quote, we designate

uses based on existing habitat and some other

factors and then we set criteria to protect

those uses. And that's in testimony by

Sulski on January 29, 2008, on Pages 246 and

247. And later testimony, Illinois EPA

indicated that a combination of habitat and

fish IBI scores were used to categorize

aquatic life uses within the CAWS. And that

was testimony by Sulski on March 10, 2008,

Pages 14 to 18. Then the following

testimony, Illinois EPA indicated that they

used a weight of evidence approach and/or a

weight of evidence judgment call that

includes the use of both habitat QHEI scores

and biological condition, which are the fish

IBI scores maybe with some MBI data thrown in

as well. That's unclear. To categorize

aquatic life uses within the CAWS. And

that's in Sulski -- testimony by Sulski on

March 10, 2008, Pages 20 to 21, and testimony

by Sulski on March 10, as well, on Page 30.

From what I can gather from

the testimony, the process used by Illinois

EPA was not based on a clear scientific

methodology, but rather was based more on

general perceptions as to what areas had good

aquatic life potential and what areas had

poor aquatic life potential.

In answer to your question,

the IBI scores presented in the CAWS UAA

report were not derived from current data,

but represent a range of historic IBI values

from fish data collected by the District

during the period 1992 through 2002, and

that's in the CAWS UAA report on Page 5-8.

However, in IEPA's statements of reasons,

this is the section on aquatic life use

designations, IEPA explicitly describes

ranges of QHEI and IBI scores for Aquatic

Life Use B and Aquatic Life Use A

designations in the CAWS. Moreover, the

prefiled testimony of Sulski on Pages 16 and

17 and the hearing testimony of Smogor on

Page 238, 241, and 243, the dates are the

same as we had earlier. On Sulski on Pages

14 and 18, and Essig on Pages 19 and 21,

clearly describe the ranges and uses of QHEI

and IBI values and the use of Figure 5-2 of

the CAWS UAA report and how those values

justify the distribution of Aquatic Life Use

A and B waters.

MS. WILLIAMS: Excuse me, Mr. Mackey.

You lost me when you said the dates are the

same.

DR. MACKEY: I'm sorry. In my text

here I don't have the dates that were set

testimony. It's the same dates that I

referred to earlier when I was talking about

the testimony --

HEARING OFFICER TIPSORD: That

April 23?

DR. MACKEY: Yes. I believe so.

MR. ANDES: March 10.

MS. WILLIAMS: You referred to several

dates. That's why I'm confused.

DR. MACKEY: Okay.

MR. ANDES: I believe March 10.

DR. MACKEY: March 10. I believe it's

March 10.

MR. ANDES: 2008. We can double-check

that.

DR. MACKEY: We're going to get there

in a few seconds. Let's go back to the

handout on the offering QHEI scores. We'll

look at the top --

HEARING OFFICER TIPSORD: Exhibit 181?

DR. MACKEY: Yes. And the thing I

want to point out here, as I indicated

before, what I'm going to ask you to do at

this time is to ignore all the big black

circles, the QHEI scores. Because right now

the question is about IBI scores and whether

or not they were used for the aquatic use

designation. What I want you to look at are

the box-and-whisker plots. Those are the

rectangles and these are -- and the error

bars associated with the IBI scores. That's

the lighter things behind the block dots.

And you'll note that I have highlighted in

green the A designation waters, and in sort

of red or orange color, the B designation

waters. And look what the UAA contractor did

was if you will see on the far left side, the

Sheridan Road site, that is the reference

site. So what they did is took the 75th

percentile of that site and said that is

going to basically be the boundary for, in

essence, general use waters. In other words,

IBI scores higher than that are general use

waters. And then if you look at the 25th

percentile line, that's a black, the black

horizontal line that says 75th percentile IBI

of all data within the CAWS. What they've

done is looked at all of the historic IBI

data and then calculated the 25th percentile

from all of the data sets, and that's this

lower line, okay, the lower black horizontal

line. Just bear with me here. Because where

I want to go is to basically say that with

two exceptions, that the A and B designations

are almost an exact match for where the IBI

scores either fall at or above this 25th

percent -- the 75th percentile IBI for all of

the CAWS versus the areas that don't, that

fall below the two exceptions are outlined in

the red boxes. One is the inner harbor area

where you have very low habitat scores, but

you have very high IBI scores. And I suspect

that is because of proximity to Lake Michigan

that you're probably getting the higher fish

IBIs because you actually got some lake water

there or there is some lake access at one

time or another. And at the Cicero Ave.

score, and this is interesting, this has some

of the -- not the lowest, but certainly the

lower IBI scores, and yet Illinois EPA has

designated that as an aquatic Use A water.

The point is is that there is

a very, very good correspondence between what

the UAA contractor did here in terms of the

percentile analysis and the IBI scores. It's

a virtual lay-down for how they actually did,

how they actually had geographically

designated aquatic life Use A and B waters.

MS. DIERS: Did Illinois EPA testify

that they exclusively relied on Figure 5.2 in

the CAWS UAA?

DR. MACKEY: No, they did not.

MS. DIERS: I'm going to go to

prefiled Question 31. In what way and for

what purpose do you believe the Illinois EPA

relied almost exclusively on fish IBI scores?

DR. MACKEY: That's Question 31.

Well, I basically would -- I don't want to

give the same testimony again, but I think

that, in essence, this upper figure here

entitled original QHEI scores, again,

basically tells the story that there is a

very, very good correspondence between the A

and B water designations. It's almost an

exact match for the variations in the IBI

scores here.

MS. DIERS: Question 32: In what way

and for what purpose do you believe that the

Illinois EPA adopted the percentile approach

to which you refer?

DR. MACKEY: As I stated in my prior

testimony, I believe you can see that the

75th percentile IBI line for all of the data

within the CAWS seems to be a very clear sort

of demarcation line, if you want, between the

A and B waters as proposed by Illinois EPA.

MS. DIERS: Question 33: On Page 6 of

your prefiled testimony, you mention that

spatial distribution of the CAWS sites

selected for QHEI analysis in 2004 were not

based on an appropriate statistical sample

design. Does the QHEI data from these sites

provide no useful information for determining

the biological potential of the CAWS?

DR. MACKEY: All right. I have real

concerns if these are the only -- if the QHEI

data were the only habitat data used to

determine the biological potential in the

CAWS. And that is assuming that Illinois EPA

did, indeed, use the QHEI data and habitat.

Primarily because the QHEI was designed to be

applied to natural systems, not artificial

systems such as the CAWS. Rankin in 1989,

they were testing and developing this whole

sort of indicator system described in the

QHEI as a macro scale approach that uses

qualitative metrics to describe the, quote,

emergent properties of habitat. Examples of

emergent properties would be sinuosity or

pool or riffle development. These are the

large macro habitat features, okay. This is

what QHEI is designed to look at. However,

because many of the metrics and submetrics

are held constant throughout most of the

CAWS, only a few of the emergent properties

of habitat or the QHEI metrics are actually

used to calculate QHEI scores. And I believe

we have an exhibit for this. The point is

here -- sorry.

HEARING OFFICER TIPSORD: I've been

handed QHEI metrics in the CAWS. If there's

no objection, we will mark this as

Exhibit 183.

Seeing none, it's Exhibit 183.

DR. MACKEY: My printer only has three

colors: Black, red, and green, so.

Where I'm going with this is

that the QHEI is a metric or an indicator

that's designed for natural systems, and

primarily for degraded natural systems. The

CAWS is an artificial system. The CAWS was

never a degraded system. It never had high

quality habitat to begin with because it's

basically equivalent to a concrete pipe,

okay, in many respects. And because many of

the characteristics of the CAWS are pretty

much constant or are the same throughout most

of the water, not all, but most of the

waterway, many of the submetrics here are

basically the same throughout the entire

waterway. And this is another reason why

it's really important to get or take a look

at those original field data sheets to see

exactly what different submetrics were held

constant throughout the system and/or how

much did those scores vary. Because right

now we really don't know. I have no idea

between one site to the next what was it that

was actually varied. So if we take a look at

this exhibit entitled QHEI Metrics in the

CAWS, and there's some text to it which is of

interest, but really the table is the key.

What I have attempted to do here is to break

out the major QHEI metrics, and it's in the

very left-hand column. There are really six

major ones, okay. And then the next column

over called metric component rates out the

different factors that are sort of summed

together that make that total QHEI metric,

and I've shown you what the scoring ranges

are. And what that means is that you

actually have the ability to assess which of

these components is more important than

others relative to the potential range of

scores. And it also, the next column shows

the metric maximum score. In other words,

what is the max -- if this is -- if this is

God's gift to the earth in terms of habitat,

this, the -- you know, you end up with a

total score of 100, a QHEI score of 100, and

this is what each of these components, the

maximum values, could be. And then on the

far right-hand side what I've done is for the

CAWS, is I have basically identified where I

believe these metrics were in essence held

constant throughout most of the waterway

system. And those are the areas that are in

red. So if they are being held constant, the

only changes or variation that you get in the

calculated QHEI scores are based on two

sub -- basically on the two QHEI metrics:

No. 1 and 2, substrate and instream cover,

and to a lesser extent perhaps some

submetrics of the riparian zone. I don't

have the page number, but in the UAA, the

CAWS UAA report, I do know that they talk

about gradient being held constant. And the

reason -- where I inferred whether or not

these values varied is that if you look at

Table 2 in Rankin's report where you talk

about the moderate influence and high

influence and low influence and you see the

individual submetrics, for many of these

things, the values are the same for every

site all the way through. And that means

that more than likely they're being held

constant for the entire waterway. So these

scores are -- the QHEI scores, if they're

calculated properly, are based on just two,

possibly three components, and all of the

rest of the values are held constant. This

is one of the reasons why the QHEI has some

severe limitations in this type of a system.

It was not designed for an artificial system,

okay.

MS. DIERS: So if we're not supposed

to use the QHEI for this type of system, what

are we supposed to use?

DR. MACKEY: Well, that's what the

habitat evaluation improvement study is

attempting to do. It's currently ongoing and

funded by the District. It's taking a

good -- as I understand it, it's taking a

good, hard look at physical habitat in this

system, a more detailed sampling regimen.

They have done a number of things in addition

that I think are very important in terms of

collecting additional habitat data, and I'm

not one who wants to see studies going on

forever, but you've got to have some minimum

information. And I don't think we even have

the minimum information yet necessary to

adequately characterize the habitat in the

system. The idea is, in the study, is to do

the physical habitat assessment. I

understand that they're looking at some

biological data as well and they hope to

integrate that together and actually develop

an index that may be much more appropriate

for a highly urbanized or an artificial

system such as the CAWS rather than using a

metric or an indeces that was developed for

natural system, a natural system that has

been degraded. They're two completely

different animals.

MS. DIERS: So what the habitat study

will be developing is something that's never

been done in the United States; is that

correct?

DR. MACKEY: That's probably correct.

MR. ANDES: Do we want to take a

break?

HEARING OFFICER TIPSORD: Yes. Sure.

Ten minutes.

(Short break taken.)

HEARING OFFICER TIPSORD: We can go

back on the record. Okay. We're back on the

record. Miss Diers?

MS. DIERS: I think we're on

Question 34. What statistical design

guarantees that additional physical habitat

information from the CAWS will provide more

accurate characterization of the biological

potential of the CAWS than does the currently

available data?

DR. MACKEY: Okay. As you may know, I

have some very strong concerns about the

habitat data that was used as part of this

physical habitat assessment used as part of

this aquatic use designation. The habitat

sampling sites used in CAWS UAA report and in

the Illinois EPA analyses were based on

existing Water Reclamation District fish

sampling sites. And I'm referring

specifically to, I think it's Attachment R of

the Rankin report. And in terms of what I

would do, in other words, to improve this,

the sampling protocols, is first in addition

to using the sites that were selected for the

biological sampling, I would also select

additional sites based on the inferred

physical processes and anticipated

differences in substrate distribution and/or

in-stream habitat structure within the CAWS.

In other words, I would have looked at the

system and said where might I expect to see

some changes in substream, where might I

expect to see accumulations of woody debris

or other types of in-stream structure that

may be important from a habitat perspective.

And I would also use remote sensing and

geophysical tools such as side-scan sonar,

which you've seen a small example already, to

continuously map the entire submerged area of

the channel within the CAWS. Then I would

use the acoustic data to select additional

sampling sites to confirm substrate materials

and to identify areas with in-stream and bank

edge habitat structure. If water clarity is

appropriate, I would attempt to validate

substrate and instream bank edge habitats

with underwater video. I own underwater

video cameras and use them on a regular basis

on Lake Michigan and the other great lakes in

order to validate what I see with the

side-scan sonar. Unfortunately, having been

on the CAWS waterway, it's -- I'm not sure

what the second depths are, but it's very

turbid, and there's not a lot of light at

that depth. So I don't think the underwater

camera would work. But you can do some

additional sampling work either with a Ponar

samplers or other types of sampling devices

to validate what you see on the side-scan

data.

Second -- And that takes care

of the instream habitat and substrate data

which is really, really important as we know

the key components as part of the analysis.

Second, I would undertake a comprehensive

inventory of the CAWS shore line where I

would document type, composition, location,

distribution, and condition of shore line and

bank edge features in the CAWS. And I would

use these data to identify and map the

location of the potential bank edge habitat

structure. In other words, for example, some

of Illinois EPA's littoral zones, I've taken

a really good close look at those areas and

to assess the pattern and juxtaposition of

different type of bank edge habitats. The

key thing here is that, and this is a real

problem I have with the proship (ph.) Rankin

used is that they didn't look at what's along

the banks. When you look at aquatic habitat

in these channel systems, you either have

structural or materials on the bottom of the

channel or on the sides of the channel. You

know, what's sitting up here hundreds of feet

away is not going to make any difference for

the most part for the fish that are in the

water. And so if you're just going to look

at what's on the bottom of the channel and

not look at what's along the sides or in the

banks, you're missing a big part of the

picture. Let's use an example here. On the

Sanitary and Ship Canal you have the bedrock

walls that goes straight down, okay? And I

will tell you there actually is some

structure down at the bottom. We'll talk

about that another time. But from there you

transition into different types of materials,

more I'm going to call it alluvial materials

and those materials erode fairly easily or

have a potential to. So those banks have

been armored and they've been armored with

different types of materials. In many places

it's concrete, in many cases it's sheet piled

walls, vertical, but in many places and some

extensive places they construct what they

call revetments. These are large blocks of

stone or rock or even concrete slabs that are

sort of filed up along the side at a fairly

steep angle to protect shore line from

erosion. And what most people don't remember

is that what you see up at the surface, that

extends down below the water surface well out

into the channel. And actually I've mapped a

fair number of those areas with the side-scan

sonar. And the point is is that you can

infer what areas may have additional habitat

potential by doing this sort of comprehensive

shore line inventory. This is really

important, and this is something that was not

done as part of this habitat assessment.

And, third, what I would do is

I would integrate shore line assessment, bank

edge materials, and what you see just above

the water and just below the water with the

in-stream habitat. And you build a series of

data layers and you put them together, and

that allows you to actually connect the two.

I see this type of thing here along the bank

edge, this is generally the type of thing

that I see down in the channel itself; not

only in the bank edge, but in the instream

portions as well. And I would use that data

to construct a set of data layers that can be

used to illustrate the type, quality,

location, distribution, and connectivity of

these different types of habitats. And the

connectivity issue is really, really

important. Because you need to understand if

you have a habitat of a certain type here,

what's adjacent to it. And is there a

reasonable expectation that organisms that

use this may also use this for the purpose of

the adjacent habitats for a different

purpose. Without understanding that habitat

juxtaposition and connectivity, you really

don't have an understanding of habitat at

all. In fact, it's just a pile of rocks

sitting in the water.

MS. DIERS: So is your habitat

evaluation something that you're involved in,

is it using those recommendations that you

just stated?

DR. MACKEY: Yes.

MS. DIERS: And do your

recommendations involve a statistical design?

DR. MACKEY: The answer to that would

be no.

MR. ANDES: Can you clarify what you

mean by a statistical design?

DR. MACKEY: Well, a statistical

design is basically a mathematical process

whereby you have, let's say, a certain

expectation with certain distribution of,

let's say, organisms or whatever. And you

design, you use a statistical design to

sample that distribution in a way that is

statistically valid, such that the result

that you get are actually real and you can

actually assess the error and have some

competence in the results.

MS. DIERS: So what's wrong with the

District's choice sampling sites that the EPA

used in their evaluation?

DR. MACKEY: There is nothing wrong

with the District's choice of sampling

locations. But you have to remember that the

objectives and the reasons why, if I

understand correctly, those sites were

selected were not to perform a habitat

assessment. They were performed to evaluate

the aquatic communities associated -- that

may be associated with outfalls or other

specific characteristics within the waterway.

The reasons that those sites were selected

were different than for a habitat assessment.

MS. DIERS: Can you explain the

reasons they were selected?

DR. MACKEY: I cannot. I would refer

you to someone who works with the District

and/or has responsibility for those sampling

locations.

MS. DIERS: Do you know the bank edge

habitat requirements of aquatic life that can

potentially live in the CAWS?

DR. MACKEY: Well, No. 1, Illinois EPA

has not defined what the organisms are that

could potentially live in the CAWS. And,

No. 2, that is a biological question. When I

do my habitat assessment work, I am focussed

almost exclusively on the physical

characteristics. I am a physical scientist

by nature. But I always work cooperatively

with the fisheries biologist or with aquatic

ecologists, and I rely on their expertise.

And it's actually the integration of that

expertise with my expertise that usually ends

up with a sum that's greater than its parts

and a better understanding of the habitat.

MS. DIERS: How will this integration

work here?

MR. ANDES: This integration in terms

of the habitat study? Is that what you're

asking?

MS. DIERS: Yes, the habitat study of

the biology.

DR. MACKEY: That's actually going to

be done, I believe, internally by LimnoTech

probably in conjunction with the District.

And I have not been -- I have not had

discussions with LimnoTech as to actually how

that integration is going to work. So the

answer is I don't know.

MS. DIERS: Thank you. Prefiled

Question 36: On Page 7 of your prefiled

testimony, you state that the channel

morphology of flow characteristics of South

Branch Chicago River differ distinctively

from those of the South Fork of the South

Branch Chicago River. What information is

the basis for this conclusion?

DR. MACKEY: My conclusion is based on

several things: No. 1, I've been there. I

actually ran the side-scan sonar survey

through that confluence and also above the

creek until side-scan -- the fish, which was

totally in the water, actually was -- it was

like real crop agriculture on the bottom.

Let's put it this way. It was in the bottom

it was fairly shallow. So I have an idea of

what the actual bottom materials are and what

that structure actually looks like.

Second, the U.S. Army Corps of

Engineers, and this also has -- and the USGS,

I believe, both have performed detailed

bathymetric surveys within Bubbly Creek or

within the South Fork of the Chicago River as

they have also within the Sanitary and Ship

Canal. And there are some very clear

differences based on that bathymetric data in

terms of the bathymetry within the two

different channels.

Third, also based in part on

the field examination, and also if you look

at the NOAA navigation charts which extend

down through the Chicago waterway in that

South Fork area, there are clear differences

in water depth marked on the navigation

charts and also clear differences that show

areas that are generally navigable and not

navigable. It's very clear if you've been

into the Bubbly Creek area, South Fork area,

that it's very difficult to get some of those

large barges up that system. It's very, very

narrow. So it's not subject to commercial

navigation. So there are some substantive

differences.

MS. WILLIAMS: Did you say NOAA

navigation charts? I'm sorry to interrupt.

MR. MACKEY: NOAA, the National

Oceanic and Atmospheric Administration. They

generally, they generate virtually all of the

navigation charts used in the lakes and in

many of the navigable portion of the rivers.

MS. DIERS: Question 37: On Page 7 of

your prefiled testimony, you criticize the

Illinois EPA proposal for not including a

comprehensive habitat assessment that

includes knowing the relative percentage,

location, pattern, and distribution of shore

line types and bank edge habitat for each

CAWS segment and knowing the pattern in

juxtaposition of different types of aquatic

habitats for each CAWS segment. Is it your

opinion that the Clean Water Act requires

this type of comprehensive habitat assessment

for a defining and designating aquatic life

uses in fresh water streams throughout the

United States?

DR. MACKEY: I'm not an expert on the

Clean Water Act. I want to make that clear.

So taking that as a caveat, I don't know if

the Clean Water Act would require a

comprehensive habitat assessment for every

fresh water stream throughout the United

States. But common sense would dictate that

where there is a reasonable expectation that

the system is habitat limited, and that would

be especially in an artificial waterway such

as the CAWS, an assessment of physical

habitat is necessary, and I believe required,

to determine whether or not a proposed

aquatic life use can be attained.

Unfortunately, Illinois EPA has not provided

any data information or analyses to show that

there is sufficient aquatic habitat to

support containment of the proposed aquatic

life uses in the CAWS. Irrespective of

improvements in water quality, the proposed

aquatic life use is not attainable if aquatic

organisms are habitat limited.

MS. DIERS: Question 39: On Page 8 of

your prefiled testimony you state, however,

Illinois EPA contends that these shallow

water bank edge habitats in the Calumet-Sag

Channel should be considered to be spawning

habitat, which is problematic given that no

direct data was -- is available to support

that contention. Could you please point out

in the hearing record where Illinois EPA

contends that shallow water bank edge

habitats in the Calumet-Sag Channel should be

considered to be spawning habitat?"

DR. MACKEY: This statement is an

inference from the testimony and the

information provided by Illinois EPA. The

primary reason to designate Cal-Sag Channel

as an Aquatic Life Use A water is based on

the presence of a shallow water,

predominantly based on the presence of a

shallow water littoral study,

L-I-T-T-O-R-A-L, associated with bank edge

areas of that channel. And I'll refer to you

the prefiled system of Sulski on Pages 16 and

17 and the hearing testimony by Rob Sulski on

March 10, 2008, on Pages 30 to 31; Smogor

on -- testimony by Smogor on March 10, also,

2008, on Page 32; and Essig on March 10,

2008, on Page 35. Since the primary physical

difference, according to Illinois EPA,

between the Chicago Sanitary and Ship Canal

and the Cal-Sag Channel is the presence of an

undocumented shallow water -- I'm sorry -- is

the presence of a shallow water littoral zone

in the Cal-Sag Channel, one may infer that

since Illinois EPA is proposing that the

Cal-Sag Channel be designated as a type A

water, that Illinois EPA believes that these

shallow littoral zones within the Cal-Sag

Channel may serve as potential spawning sites

and/or refuges for early life stage fish.

Otherwise why apply a dissolved oxygen

standard designed to protect early life stage

fish during the months of March through July

to Cal-Sag Channel?

MS. DIERS: What do you mean by direct

data? That was Question 40.

DR. MACKEY: Yes. Direct data means

sampled or directly observed, not inferred.

And the type of data collected will depend on

the type of water body and the complexity of

the system. In the case of a complex

artificial system such as the CAWS, Illinois

EPA has not provided data or analyses

sufficient to show that the proposed aquatic

life uses are attainable for that associated

physical chemical standards.

MS. DIERS: This is 41: Do you

believe that no fish are spawning or

propagating is occurring in the Calumet-Sag

Channel?

DR. MACKEY: I believe we discussed

this earlier in another question, and I'll

just restate that no data or evidence has

been collected by the District or by the CAWS

UAA contractors to indicate that spawning

activity has occurred in the Cal-Sag Channel,

nor have eggs or larval fish indicative of

spawning activity been collected by the

District from the channel. Until spawning

activity is observed directly and/or eggs or

larval fish are recovered from potential

spawning sites, one cannot conclude that fish

are spawning or propagating in the Cal-Sag

Channel. I think the point here is that if

you're proposing an aquatic life use standard

that requires, in essence, general use,

dissolved oxygen standards, I would suspect

or I think it would be appropriate to say

that, hey, you're doing this for a reason and

that you have -- and that you actually can

show that fish actually are using these areas

as spawning habitat. Right now there's no

data available that show that that's the

case.

MS. DIERS: Question 42: How does one

determine scientifically with direct data

that no fish spawning or propagation are

occurring in the Calumet-Sag Channel?

DR. MACKEY: Okay. Your questions are

really interesting, because it's really

difficult to prove a negative. However,

inductive reasoning leads to the logical

conclusion that spawning activity is not

occurring within the Cal-Sag Channel. Again,

first, no evidence is presented by Illinois

EPA to demonstrate that fish spawning and

propagation are occurring within the Cal-Sag

Channel.

Second, no data or evidence

has been collected by the district or the UAA

contractors to indicate that spawning

activity has occurred in the channel, nor

have eggs or larval fish indicative of

spawning activity been collected from the

channel.

And, third, in Dr. Melching's

hearing testimony on November 17, 2008, he

presented an analysis based on the habitat's

suitability indeces that describe the CAWS as

being habitat limited for early life stages

of largemouth bass, channel catfish, and

smallmouth bass, the three species that have

been specifically identified by Illinois EPA.

They haven't identified any others, okay, at

this point.

So, based on what we know

about the habitat requirements of an early

life stage fish, the HSI, the habitat

suitability indeces suggest that the Cal-Sag

Channel is not the place to be. In other

words, it's really not a good place for fish

to spawn. This combined with the fact that

we haven't recovered any eggs or larval fish

from the Cal-Sag Channel and no direct

observation of fish spawning activity in the

Cal-Sag Channel doesn't support the idea that

fish spawning or propagation are occurring in

the Channel. I mean you don't see it, you

don't collect any data suggesting it's

happening, so it's difficult to conclude that

it is without some documentation. In other

words, until spawning activity is observed

directly and/or eggs or larval fish are

recovered from potential spawning sites, one

cannot conclude that fish are spawning or

propagating in the Cal-Sag Channel.

MS. DIERS: Do you know if the

district tried to collect spawning data in

the CAWS?

DR. MACKEY: I don't know.

MS. DEXTER: Are you saying that you

believe that you have enough information

where you sit right now to decide that this

is not a false negative reading?

DR. MACKEY: Could you --

MS. DEXTER: That you say that there's

no data that shows this, and you just listed

a bunch of reasons why you think that this is

not -- Because we don't have data you just

said it's difficult to prove a negative. But

then I took your testimony to say that you

think that the negative has been proved.

DR. MACKEY: I'm not saying that. I'm

100

not saying that the negative has been proved.

All I'm saying is that until you see some

larval fish and you see spawning activity in

this system, that is I don't believe you can

make the conclusion that spawning activity is

occurring in the Cal-Sag.

MS. DEXTER: Right. But you can't

conclude at this point that it is not

occurring?

DR. MACKEY: I can't make a conclusion

either way.

MR. ANDES: Is it reasonable to infer

that it is not occurring based on the

available --

DR. MACKEY: I think that's a

reasonable inference to make based on the

data that's been collected.

MS. DEXTER: Even though you don't

know how adequate the sampling equipment is

at getting larval fish and getting eggs.

MR. ANDES: I think you're putting

words in his mouth.

MS. DEXTER: I asked him earlier today

whether he knows about the --

101

HEARING OFFICER TIPSORD: She did.

DR. MACKEY: I do not know -- I do not

know what type of equipment is being used for

sampling. I am not a biologist.

MS. DEXTER: And you don't know

whether that equipment is actually adequate

to sample --

DR. MACKEY: That's correct. All I

can say is that up to this point no larval

fish have been collected or eggs or spawning

activity has been observed in this system.

MS. WILLIAMS: Didn't you just say you

don't even know if the District has tried?

DR. MACKEY: I have no idea if they

have. All I'm saying is look at the data

that has been collected. There are no

reports of larval fish. That's all I have to

say. Whether they've tried, whether they've

used the appropriate equipment or not, I

cannot address that question because I'm not

a biologist.

MR. ANDES: Did Illinois EPA in

support of this ruling put forward any

evidence of spawning or larval fish?

102

DR. MACKEY: To my knowledge, no.

MR. ANDES: Thank you.

MS. DIERS: Did you review the

ichthyoplankton and fish size data in the

record? And, if so, what is the relevance of

the data in determining whether early life

stages use is or is not existing and,

therefore, attainable in the CAWS? And

that's a follow-up question.

DR. MACKEY: I understand. I have a

response to that question. I know that the

Illinois EPA has suggested that different

size classes of fish may indicate the

presence of early life stage fish, and I know

there was some reference made to three inch

or five inch size fish from the data.

Personally, I have not reviewed the size

class data in detail. Again, that is not my

area of expertise. What I would also say

based on experience in working with fisheries

biologists in rivers and also in lakes, that

the different size classes are not

necessarily determinative of spawning or

reproductive activity. Different size

103

classes quickly indicative of different

growth rates and/or the presence of different

genetic strains of the same species. And I

had mentioned this before. We have seen

this -- I've seen this in lake environments

where there are different strains that have

different growth rates as a function of age.

Moreover, unless there was some direct

evidence that link these fish to specific

spawning locations, even if you have small

fish there, you don't know if they came from

within the Cal-Sag Channel or they came from

Lake Michigan or if they came -- if they

somehow went through the electric field

barrier in Romeoville and came -- well, they

could have come across from the flood waters

from the Des Plaines River. I mean there is

a connection there that occurs. So, again,

this is the idea about direct evidence

showing. Present some information or data

that says there are fish spawning data.

We've got eggs in these substrate materials,

that we have larval fish that we found. And

then we move forward from there. But right

104

now that data does not exist to my knowledge.

MS. DIERS: I want to jump back to the

comprehensive habitat assessment we talked

about. Can you give an example of a UAA

where it's this type of comprehensive habitat

assessment approach you've advocated has been

used?

DR. MACKEY: No, I can't. And the

reason is is that in general I have not been

involved much with the UAA process; and so,

therefore, I do not know what necessarily has

been done across the country with the UAA

samples or assessments.

MEMBER RAO: May I ask a follow-up.

You mentioned that you had done the similar

kinds of studies in great lakes and other --

and rivers in Ohio. In what context were you

asked to do these evaluations?

DR. MACKEY: That's a really good

question; take a minute or two to answer this

one. My work in the great lakes and in the

tributaries to the great lakes, as I say, is

focussed primarily on habitat assessment.

And I use a side-scan sonar and wadable

105

systems. I actually walk the streams with

GPS equipment and actually map the substrate

contacts and map the channel morphology. My

work is done primarily with the natural

resource management agencies. I've worked

with virtually every DNR in the great lakes

basin. I also worked with the provincial

fisheries biologist, the Ontario Ministry

Natural -- Ministry of Natural Resources,

Department of Fisheries Oceans in Canada, and

Environment Canada. I've worked with all of

those folks doing fisheries related and

habitat assessment work, not associated with

UAA. This has to do with management of the

fisheries resources.

Couple important points to

make here, this is a really good question, I

just want to touch base on this. In all this

work for many years that I've done with all

of these resource management agencies, the

agencies that are actually charged with

managing fisheries in the great lakes, and

that includes the riverine stocks as well.

Never once have we ever used the QHEI

106

analysis for habitat assessment to identify

any sort of restoration or enhancement

opportunity. Only times -- and I have

calculated the QHEIs. We do it on a very

infrequent basis. The only times we have to

do that is when we're trying to satisfy a

regulatory requirement of an EPA of either --

not so much Illinois EPA, but Ohio EPA or the

organizations in Michigan or the other

states. The natural resource management

agencies, the most of the DNRs do not use the

QHEI for habitat assessment, period. Okay.

It just doesn't work to identify restoration

opportunities. The context of what I do is

in lakes and in shore areas I am working on

identifying potential sites for protection

and restoration work and/or for fish stocking

efforts. An example would be on the project

with the U.S. Fish and Wildlife Service, New

York EBC (ph.), USGS, Ohio Division of

Wildlife and Ontario Ministry of National

Resources and Environment Canada, the Eastern

Basin of Lake Erie. We are using side-scan

sonar and other tools to map potential lake

107

trout spawning habitat in the eastern basin

of Lake Erie. Lake trout were extrapolated

in the early 1900s from the lake. One of the

fish community goals and objectives of the

Great Lakes Fishery Commission is to restore

native fish species of which lake trout is

one. So I've been mapping these habitat

areas, identifying these areas on the lake

bed because nobody knows where they are based

on a set of characteristics similar to the

habitat suitability indeces. Over the next

three to five years, the fish hatcheries in

the province of Ontario and U.S. Fishing and

Wildlife Service are ramping up production of

lake trout. And there is going to be a

massive stocking done within the next three

years where they're going to be placing these

fish on the locations on the habitat that

we've identified as part of the study to

maximize the potential sites -- success in

terms of restoring reproducing sustainable

populations of lake trout in Lake Erie. This

is the type of thing that we do. We are also

doing this in riverine systems. I've done

108

the habitat mapping in Sandusky River. And,

in fact, involvement now at the major dam

removal there in order to open up 22 more

river miles of potential spawning habitat for

walleye. That's the context in which I'm

working. It's about protecting, improving

accessibility, connectivity for habitat in

order to improve the aquatic communities.

And that includes not just the four fisheries

and commercial fisheries, but we're also

working to improve the forage fisheries which

there are other species. Does that answer

your question?

MEMBER RAO: Yes.

HEARING OFFICER TIPSORD: Can we go

off the record for just a second.

(Off the record.)

HEARING OFFICER TIPSORD: Back on the

record. Miss Diers, I think we're ready for

you.

MS. DIERS: Prefiled Question 6 on

Page 96. Do you believe that Cal-Sag Channel

should be designated as a Use B water as

Illinois EPA proposed rather than a Use A

109

water? And, if so, why?

MEMBER JOHNSON: I'm still thinking

about his answer to the last question. And I

guess the natural follow-up to me would be

had you been asked to look at the CAWS system

to determine whether or not it had the

potential for restoration, what would be your

conclusion?

DR. MACKEY: I would say that in

certain reaches of the CAWS that there is

potential for restoration. I believe that

whatever type of restoration occurs has to be

done intelligently and efficiently. I will

tell you right up, straight up right now that

I don't believe necessarily that system-wide

solutions are the answer here and that it

doesn't make sense to impose system-wide

standards necessarily, particularly if only

portions of the system may have a potential

habitat to actually accomplish some of the

things that you wish to accomplish within

this system.

MEMBER JOHNSON: Thank you.

MS. DIERS: So what reaches do you

110

believe could be restored?

DR. MACKEY: That I cannot answer at

this point, No. 1, because existing data sets

are not adequate to answer that question.

And, No. 2, I would wait and see what the

results are from the habitat evaluation

improvements study are; I think a much better

handle on what the actual physical habitats

are in this system.

MS. DIERS: That will take me back to

our Question 6 that I asked before we did the

follow-ups. Do you believe the Cal-Sag

Channel should be designated as a Use B water

rather than a Use A water? And, if so, why.

DR. MACKEY: Well, I'll first put in

the caveat and say, again, that I don't

believe that -- I think the Cal-Sag Channel

there were two sampling sites for the entire

length of the channel, and that's two sites

were looked at that were evaluated, and that

basically has characterized the entire

Cal-Sag habitat condition. And those sites

were spaced I think a little over ten miles

apart. So there's an awful lot that can go

111

on between those sites. And so I really

think that we don't have adequate data to --

for me to make a necessarily informed

decision. I will give you an answer in a

second. And the caveat is this, that I think

we really need to see what comes out of this

habitat evaluation and improvement study to

see what may actually be possible. But based

on the available data I would say that, yes,

I believe the Cal-Sag Channel should be

designated as a Use B water rather than a

Use A water. And my initial assessment is

based on the reconnaissance field

observations of the shore line features, some

of which you've seen in the handout already,

an examination of the high resolution

bathymetric data collected by the U.S. Army

Corps of Engineers and that data set is, I

believe it's a one foot contour or less, six

inch contour interval. It gives you a real

good feeling of how the depths are changing

in that system, and there's not a lot of

shallow water area there. It's very small.

Based in part on that data and on the

112

side-scan data, this littoral zone that

Illinois EPA refers to may represent it most

at 5 to 8 percent of the total channel area,

if you want. And one of the things I would

say about the littoral zone, Illinois EPA has

not clearly defined what it means by a

littoral zone. In the lakes it usually means

depth of closure or wave base. And that is

that -- it's the depth at which waves no

longer significantly impact the bottom, and

that would be the littoral zone in the lake.

And the riverine system or system such as the

CAWS you have to say, well, you're not going

to have ten footers generally and the winds

aren't strong enough to do that. So the

primary source of wave energy there is

probably going to be in barges and tows. And

I don't know what the wavelength of those

waves would be, but I'm guessing that might

be a wavelength of maybe six to seven feet

between the crest, half of that distance is

the depth that the waves are close to bottom.

So you're looking at maybe water depths of

three feet or less would be defined as a

113

littoral zone. Those areas are very small,

probably less than 1 to 2 percent of the

total channel bottom area; very, very small

area along the edge.

MS. DIERS: The habitat study that

you're working on, are you currently sampling

in the Cal-Sag Channel?

DR. MACKEY: I am not sampling, I'm

not doing any sort of biological sampling or

any sort of direct sampling in terms of

dragging sediments or whatever at this point.

I've done side-scan sonar and that's all I've

done, and done visual observations as well.

MS. DIERS: I think it was stated that

two sites were sampled in the Cal-Sag

Channel, the UAA --

DR. MACKEY: Yes.

MS. DIERS: Is your goal with this

study to do more sampling in the Cal-Sag

Channel, more than two sampling sites?

DR. MACKEY: I believe that there are

several more sites that are -- have been

identified in that site. I cannot

specifically tell you what they are, but,

114

again, if you have -- if you are able to

utilize a device, a remote sensing device

such as the side-scan, what it allowed you to

do is to basically generate an image of the

entire channel bottom. And then what you

would do is you say I have maybe three or

four different types of acoustic patterns or

reflectors that I see, then you go and sample

each of those types of reflectors. And you

would sample like a bedrock area if you can,

you know. Sampling bedrock is a tough thing.

Usually the sampling devices, they bounce

right off. But for areas where you think you

can't clearly distinguish between silt or

sand or gravel, you would see a certain type

of acoustic pattern and you'd sample that.

And if you see a similar type of acoustic

pattern in another place in the channel,

you'd sample that. If they both come up as

gravel, you'd say, in general, every time I

see that type of acoustic pattern I can

actually call that gravel. The way you go

about doing this analysis is that you saw

just from these small images here, this is

115

all geospatially correct. In other words,

this is the GIS. This is a GeoTIFF image,

georeferenced; accuracy is within one meter

or less. So what you can do, you can

actually go in there and actually digitize

and actually generate polygons around each of

the substrate types. And assuming you're in

the right projection, that allows you to

calculate how many square meters of bedrock

is exposed on the bottom of the Cal-Sag

Channel, how many square meters of silt, how

many square meters of sand that exist of any

of the substrates. And you can actually walk

up or look at any reach, and you can actually

calculate relative to the area surveys

exactly what percentages of water are there.

And if you want to behave like a fish say

you're swimming in from Lake Michigan, and I

don't know why you'd want to do this, but if

you do, you can actually go through a series

of distributions that actually tell you how

much and what type of habitat you have

crossed on your way in. This is what we do

with some of these rivers in Ohio and in

116

Canada and in Michigan.

MS. DIERS: So is this what you're

doing in the CAWS now?

DR. MACKEY: This is something that

potentially could be done in the CAWS.

Whether it's actually going to be done, I

don't know at this point.

MR. ANDES: And I would add to that in

terms of the details of being done with

regard to that study, I would say that we

could get other people to answer those

particular questions sort of beyond the

particular work that Dr. Mackey is doing.

DR. MACKEY: My work is very

constrained. It's focussed predominantly on

the side-scan sonar data.

MS. DIERS: Who would those witnesses

be?

MR. ANDES: Let me get back to you on

that. We will identify them.

MS. DIERS: Thank you.

MR. ANDES: I would also just -- I

want to add, I think we stopped Dr. Mackey in

the middle of his explanation on the Cal-Sag

117

Channel in terms of the reasons why it should

be Use B.

MS. WILLIAMS: I thought he answered

the question.

MR. ANDES: He had more to go.

DR. MACKEY: It's just a couple more

sentences here. Basically the side-scan

sonar data that I've collected from the

Cal-Sag Channel -- sorry about that, guys.

We got twisted off here on a different topic

for a while and it takes a while for me to

reengage.

HEARING OFFICER TIPSORD: That's quite

all right.

MR. MACKEY: With the side-scan sonar

data is that I've done certain reaches of the

Cal-Sag, but I've also done in confluence and

worked my way up into the San-Ship as well.

And in terms of the relative differences

between the two, now if you recall the

Sanitary and Ship Canal is designated as an

Aquatic Life Use B water, okay? But based on

the side-scan sonar data what's really

interesting is that there are some

118

differences between the two, but they are

very, very minor. It's not surprising,

actually, along the northwest wall that

vertical bedrock wall in the San-Ship down to

the bottom there there actually is a ridge,

if you want, that's made up of moderately

coarse material, and in terms of its

dimensions are very similar to what you

actually see in the Cal-Sag. The Cal-Sag,

that little narrow littoral bench there is

shallower, but the same type of habitat

structure is in the San-Ship as well. So

some of the differences in terms of -- that

Illinois EPA has used as the basis for

saying, well, gee, the Cal-Sag is really a

different system. You know, if you look at

it a little bit more closely and a little bit

more continuously, there's a lot more

similarities than there are differences. And

I don't believe that those differences

necessarily warrant a different designation

for the Cal-Sag.

The other issue, and I've

mentioned this already, and that is is that

119

the shallow littoral zone blocks up this area

that is shown on this example side-scan

sonar. These blocks are not small blocks.

If you have a chance to drive a boat along

there or walk along the shore line, these are

good-size blocks. They're on the order of

many feet across in some cases. They're

bedrock slabs. The smallest ones that I've

really observed have only been about twelve

inches is the smallest. Now there may be

some finer material in there, but it's very,

very rare to see. And the interesting thing

about this is that this is not the material

that one would anticipate to be ideal

spawning habitat or used by early life stage

fish. And, in fact, in work that we've done

along the shores of Lake Erie, we go to the

Western Basin, and I have to go back to Lake

Erie because that's the place where I have

some comparative experience here. In the

Western Basin of Lake Erie in the near shore

waters, it's primary historic nurseries for

most of the larval fish that are produced out

of the western basin which is the bulk of the

120

fish in Lake Erie, and that's by far and away

the most productive of the great lakes.

Immediately adjacent to those nursery areas

it's very low relief areas, and there are

wetlands there. And those wetlands have been

diked and the lakeward side of those clay

court dikes are armored with large blocks of

stone very similar to what's here on the

Cal-Sag Channel. And they extend out into

the lake, because once you armor the shore

line, the beaches disappear.

All right. I don't know if

any of you folks know Dr. Roger Tomo (ph.)

with the Ohio EPA, he was a good friend of

Chris Yoder and he works with Chris Yoder and

Ed Rankin. He has done extensive work along

the Lake Erie shore line looking at fish

communities in the aquatic communities that

inhabit these very coarse rocky areas. And

it turns out that virtually no larval fish

are found there, and he does sample with the

appropriate equipment, I believe. But what

he does find that these large blocks are

ideal habitat for predators, largemouth bass

121

and other predators. And so basically -- and

this is sort of like the forage raining

wetlands on one hand and then protecting them

on the other. Here we are in Lake Erie where

we have this nursery habitat, and we really

want to protect this area, and yet we're

putting in this shore protection and these

structures, and basically it's ideal habitat

for preditors. So we're basically putting

the preditors right in the front of the

grocery store, okay. It's just not -- we

really haven't thought it through. And so I

suspect in the Cal-Sag Channel that I know

supposedly from the fish data that there are

lots of largemouth bass present, and those

are pretty voracious preditors, is that these

large blocks are actually going to be the

hotel preditor, if you want. And so if you

really think that these large blocks or these

rocks and this coarse shallow littoral shelf

is going to serve as a refuge for larval fish

and young-of-the-year fish, I think it's

basically going to serve as a grocery store

for those largemouth bass.

122

Again, this is from a

nonbiologist, but this is based on

information coming from experience and other

systems.

MS. DIERS: Did Rankin indicate in

Attachment R that the Cal-Sag littoral areas

are not isolated but occur along much of the

shore line?

DR. MACKEY: What question was that?

MS. DIERS: It's a follow-up.

DR. MACKEY: It's a follow-up

question, okay. Yes. I believe he did --

That's what he did indicate. But I have,

again, concerns about whether that's an

accurate assessment.

MS. DIERS: So do you disagree with

that statement?

DR. MACKEY: I do. I think that --

Could you say his statement again, please.

MS. DIERS: I'll just read from

Page 10 of Attachment R, his statement. The

Cal-Sag Channel had QHEI scores in a fair

range largely because of the limestone rubble

and coarse materials left behind in the

123

littoral areas from the construction of the

channel. Unlike Wolf Point site on the

Chicago River, this littoral habitat is not

isolated but occurs along much of the shore

line. So do you agree with that statement?

MR. ANDES: What page were we on?

MS. DIERS: Page 10 of Attachment R.

MS. WILLIAMS: They're not actually

numbered.

MS. DIERS: I counted. I'm sorry.

MS. WILLIAMS: There's a page for the

Cal-Sag.

DR. MACKEY: I got the message. I

have a copy of it here, too. In general I

would agree with that based on the shore

structure inventory that has been gone under

the habitat assessment. It's my

understanding that about 20 percent of the

Cal-Sag Channel has a vertical, some sort of

vertical type of wall with none of this type

of littoral habitat, this coarse block of

habitat that is discussed. And on the

western portion, the western portion of the

Cal-Sag Channel, it actually has a much

124

higher percentage of the vertical wall. And

you saw that in the side-scan data, the north

wall extends for many miles along the Cal-Sag

Channel.

MS. DIERS: Back to prefiled

Question 43. On Page 8 of your prefiled

testimony, you mention that QHEI protocol is,

quote, based on hydrogeomorphic metrics in a

natural stream. Then at the bottom of Page 8

you mention flows in the CAWS are related and

controlled by manmade structures and are not

natural. Do you believe that QHEI cannot

provide useful information in a stream

impacted by human activities?

DR. MACKEY: The QHEI is a habitat

classification monitoring tool that can be

used to compare the physical habitat

characteristics of different stream reaches.

So, therefore, it has some use from a

regional comparison respect. For a simple

cursory evaluation, general habitat

characteristics, QHEI protocol can certainly

be applied to natural streams impacted by

human activities. However, with respect to

125

the CAWS, I have real concerns that these are

the only habitat data used to determine

biological potential, primarily because the

QHEI was developed for natural systems, not

artificial systems such as the CAWS. Rankin

in 1989 describes the QHEI as a macro scale

approach that uses qualitative metrics to

describe the emergent properties of habitat.

And we discussed this earlier: Sinuosity,

pool or riffle development, et cetera.

However, many of the emergent properties of

habitat do not exist in the CAWS, and this is

important, nor have they ever existed in the

CAWS. Thus, the low QHEI scores are not

unanticipated because they are the result of

a misapplication of the QHEI to an artificial

system.

MS. DIERS: How do you define a

natural stream?

DR. MACKEY: A natural stream is

generally a channelized area. And I'm not

talking about channelized in terms of manmade

channelization. It's a channel cut by

flowing water in which there are certain

126

structures and characteristics that are rated

by the application of energy of stream power

and by the flowing water. And that's

basically what I would call a natural stream

from a physical perspective.

MS. DIERS: Is it inappropriate to use

the QHEI in a stream that is not 100 percent

natural?

DR. MACKEY: No. I think it's

certainly appropriate. And I think in Rankin

in 1989, when they originally developed the

QHEI, it was very clear that they applied the

QHEI and attempted to calibrate the QHEI

metrics to take into account certain types of

degradation of the natural system. And that

there is a range of degradation that can

occur.

MS. DIERS: So if a channel is cut by

something other than flowing water, is it

artificial in your opinion?

DR. MACKEY: Yes.

MS. DIERS: Do you believe that

relatively low QHEI scores in the CAWS

streams indicate that the QHEI is not

127

functioning as intended? This was the end

of 43.

DR. MACKEY: Well, I think that the

QHEI has been misapplied in this system. The

QHEI is designed to identify certain emergent

or macro habitat features, most of which

don't exist in the system; and, thus, many of

the values, and we have already gone through

this in the handout entitled QHEI Metrics in

the CAWS, most of the metrics in a natural

system would be relatively important are held

constant within the CAWS. So I don't think

that the -- personally, I don't think that

the QHEI is necessarily functioning

appropriately, because most of the metrics

upon which they're based don't even apply in

this system.

MS. DIERS: Question 44: On Page 8 of

your prefiled testimony you state, "The QHEI

protocol is not designed for use in low

gradient, nonwadable streams and rivers."

Then on Page 9 you state, "The QHEI protocol

was not designed to be applied to a flow

regulated artificial waterway system such as

128

the CAWS."

Do you believe that state of

Ohio is incorrect in using the QHEI to help

determine aquatic life use attainability in

human impacted streams throughout Ohio?

DR. MACKEY: Certainly the QHEI can be

used to evaluate and monitor for natural

streams that are impacted by human activity.

So an answer to the question would be I have

nothing against the state of -- I used to

work for them. I used to work for the Ohio

DNR, so I have my issues with the state of

Ohio. But that's not one of them, okay.

However, my two statements that I

made in my prefiled testimony are still

valid, because the CAWS is an artificial

system, not a natural system. And the QHEI

protocol was not designed to be applied to an

artificial waterway such as the CAWS.

MS. DIERS: Are all parts of the CAWS

entirely artificial?

DR. MACKEY: No.

MS. DIERS: Forty-six: Do you believe

that the aquatic life uses proposed by

129

Illinois EPA for the CAWS represent natural

conditions?

DR. MACKEY: Conceptually, I don't

believe that any proposed aquatic life uses

for the CAWS represent natural conditions

because the CAWS is an artificial system.

The aquatic life that inhabits the waterway

today colonized the waterway after the

waterway was built from the waters of Lake

Michigan. These organisms were derived from

Lake Michigan or the smaller rivers and/or

tributaries that feed into the CAWS and/or

the Des Plaines or Illinois River Systems.

This is before the electric field bearing was

built. Some of the organisms may have been

transported and inadvertently released by

commercial vessels transporting into the

system as well, invasive species, for

example. The biological communities within

the system are severely limited by the

artificial nature of the CAWS. Moreover,

actually, I think where we want to go here is

it's also important to realize that the CAWS

is not a degrading system, this is an

130

important concept I'd like to get across, but

rather an artificial system that has been

improving since it was originally constructed

beginning with this last century, okay? I'm

trying to wrap you around a different concept

here. Because probably about 98 percent of

the environmental work we do is in degraded

natural systems. The CAWS is not a degraded

natural system. It is an artificial system,

and it didn't exist before it was

constructed. And organisms that live there

now have come in from the outside probably as

they passed through in the water and said,

oh, I think I can live here. So they're

eeking out in the existence. But this is not

a natural system. This was not a natural

meandering river system with a flood plane;

all of the classic, you know, types of

different types of habitat structure,

instream habitat structure that you have or a

broad variation and substrates that are here.

This thing, at least a significant portion of

it, was dug, it was cut out of limestone,

bedrock, and/or overlying overburden, the

131

alluvial material or glacial material. It

was created from nothing. And a good analogy

would be you could view, and I -- with all

deference to the District here, you could

view this thing as a concrete pipe, all

right? This thing didn't exist. It's like a

culvert in a road. And now we put a culvert,

we put this concrete pipe, and we put a road

across it, all right, and now we have water

that flows through this pipe, all right, and

the flow is regulated. All right. There was

no aquatic habitat there before the pipe was

there, all right? And it was not built or

designed to be an aquatic habitat or to

support aquatic life. But organisms in the

water have colonized the edge of this pipe,

if you want. It could be algae, it could be

anything that lives in here. And they are

opportunistic organisms. It is by no means a

natural community that is degraded. It's one

that has basically been created because of

construction of this artificial feature. And

if you try to apply metrics and tools and

strategies that we use for environmental

132

protection to a nondegrading system, in other

words, an artificial system like this, they

are probably not going to work because

they're based on a different foundation,

different basis which is trying to prevent

things from getting worse. And in a sense I

understand what you're trying to do. CAWS is

a different system. It's an artificial

system that's coming up and it's not coming

down in terms of its relative ecological

characteristics, let's just put it this way.

MS. DIERS: Is it your understanding

that no natural stream channel existed in the

CAWS before human impact?

DR. MACKEY: That is not my

understanding at all. Certainly there are

portions of the river system that existed in

some way, shape, or form prior. The Chicago

River was a natural system, but considerably

different than it is right now. From the

perspective the board, have any of you been

up to Illinois Beach State -- I don't have to

ask you. I'm not asking for -- looking for

an answer here. My apologies.

133

HEARING OFFICER TIPSORD: We'll

consider it rhetorical.

DR. MACKEY: If you were to visit the

Southern Unit of Illinois Beach State Park,

there is a river there called the Dead River,

and it's inappropriately named. But that is

probably very similar to what -- in fact,

that is very similar to what the original

presettlement conditions were here in the

Chicago area, okay? And this is based on

work that's been done by Dr. Mike Waskowski

(ph.) with the Illinois State Geological

Survey. It's a very shallow river system

that's draining a series of ridge and swale

wetlands and a very sand rich environment,

secretion area of sand as sands are being

transported by waves along the coast from

Wisconsin. So it's Wisconsin sand Chicago is

built on. And I think that that is the

condition the original presettlement

condition existed. What exists here now is a

completely different system. It's an

artificial channel. It doesn't have any of

the flow or any of the natural channel

134

characteristics.

MS. DIERS: So you're saying the north

branch Chicago River and the little Calumet

River were natural?

DR. MACKEY: Portions of them are, I

think, yes. They've been highly modified,

but certainly.

MS. DIERS: Would you agree that the

south branch Chicago River was formerly

natural before the human impact?

DR. MACKEY: There may be just a

slight portion, a portion of the south

branch, yes, but it wasn't by any means

connected to the Illinois waterway system.

MS. DIERS: What about the Grand

Calumet?

DR. MACKEY: I don't know. I honestly

don't know. I am old, but I'm not that old.

MS. DIERS: Back to prefiled Question

No. 48. Do you know if the original

development and application of the QHEI as

per Rankin 1989 included waters that were not

natural?

DR. MACKEY: What you're referring to

135

is Appendix 1C in Rankin 1989 where he lists

the sites in Ohio that were used to test and

develop the QHEI. Again, this is all based

almost entirely on data from the state of

Ohio. And I will point out that all of the

test sites were nationally flowing rivers and

streams. There were no artificial systems

such as the CAWS. That doesn't mean to say

that there weren't some heavily modified

systems. I know they've looked at several

impoundments and applied QHEI to impoundments

which is probably the closest thing you're

going to get to the CAWS. But those

impoundments are still connected to a natural

flowing river system. And those impoundments

represent degradation. They're not created

from natural. So, in essence, the QHEI was

evaluated in degraded stream reaches of that,

and I mentioned the impoundments. But it was

still part of a natural river system. That's

basically all I have to say.

MS. DIERS: Prefiled Question 51. On

Page 8 of your prefiled testimony you state,

"This assumption is not valid for low

136

gradient urbanized artificial channels such

as the CAWS." Does the QHEI include matrix

for channel morphology, flood plane quality,

current velocity, and gradient?

DR. MACKEY: Yes. But most of those

parameters, in fact the ones that you have

listed there, are ones that are being held

constant throughout virtually the entire

waterway system which really negates their

value as habitat submetrics within the QHEI

indeces.

MS. DIERS: What do you mean by held

constant?

DR. MACKEY: What I meant by held

constant is that, again, without the original

data sheets, I cannot be sure, but I believe

that the scores are basically the same

throughout most of the system. Notice I'm

not saying all of the system, but most of the

main parts of the system the scores are held

constant. For example, an important

parameter would be pool depth. And in

virtually all cases the pool depths are

greater than one meter, and so the score for

137

that value is going to be held constant

throughout the entire system.

MS. DIERS: If a metric scores low

consistently, does this mean it has held

constant?

DR. MACKEY: Not necessarily, no.

MR. ANDES: But if it's held low

consistently throughout the area, does it

provide value in terms of valuating various

reaches?

DR. MACKEY: I wouldn't think so. In

other words, it would be -- the comparisons

that are being made from a regional

perspective between various segments are

going to be based on one or two different

metrics and that's it. The rest of them are

held relatively constant.

And to follow-up on that, the

metrics that were -- that we're discussing

are the in-stream habitat structure and

substrate. And in-stream habitat structure

and substrate are based on 20 samples within

the CAWS, only 20 samples, with an average

spacing of 4.3 miles apart, minimum spacing

138

of a half mile and maximum spacing of a

little over 15 miles apart. And that's the

basis for the habitat assessment that's been

done, which I think was insufficient to

adequately categorize the physical habitat

within the CAWS.

MS. DIERS: So how many samples do you

think would be taken so you can make an

assessment? If 20 is not enough then --

DR. MACKEY: I cannot give you a

number, nor would I want to. As I described

earlier, if one were to use a continuous

mapping regimen such as the side-scan sonar,

the number of samples would depend on the

number of different types of acoustic

patterns that you see. And until you

actually do the mapping work, you don't know.

But I would certainly design a sampling

program so that it not only is compatible

with some of the existing biological data

because obviously -- and biological sampling

because you would want to develop some

linkages there, but in addition I would also

go beyond that, as I mentioned before, and

139

tie that to the other different types of,

say, acoustic areas so that I would know

exactly what I'm seeing on the bottom is

indeed sand or bedrock or silt or other

material.

MS. DIERS: I may have already asked

this earlier, but are you designing a

sampling plan for the District to follow?

DR. MACKEY: No.

MS. DIERS: Question 52: On Page 9 of

the prefiled testimony you mentioned that

there was considerable uncertainty in the

QHEI scores for locations in the North Shore

Channel and locations in the Calumet-Sag

Channel. Later in that paragraph you mention

that if the QHEI score of 42 is correct for

one of North Shore Channel sites, then the

boundaries of the proposed aquatic life use

categories for the CAWS are invalid and

should be redefined. Based on information in

the hearing record, are the correct QHEI

scores for the North Shore Channel and the

Calumet-Sag channel depicted in Table 3 on

Page 5 of the Rankin 2004 report which is

140

Attachment R?

DR. MACKEY: We've, in part, already

discussed this. But I will just state again

in my opinion based on field observations,

side-scan data, and the lack of actually

having the original data sheets to even look

at how this thing was scored, I would say no,

I do not agree that the value is reported on

Table 3 on Page 5 of the Rankin 2004 report,

which is Attachment R, are correct based on

my experience. Assessing different types of

aquatic habitat under a broad range of

conditions, it is just not credible to

believe that the Cal-Sag Channel, Route 83

site, represents the best aquatic habitat in

the CAWS.

MS. DIERS: Question 54: On Page 9 of

your prefiled testimony you state, "Proper

application of the Ohio boatable IBI requires

identification of high quality reference

streams which serve as yardsticks to measure

the biological health in similar regional

water bodies." Does every valid use of the

Ohio fish IBI for unwadable streams require

141

one to identify high quality reference

streams?

DR. MACKEY: Could you please clarify

on what you mean every valid use?

MS. DIERS: Can it be used?

MR. ANDES: Can it be used for any

purpose?

MS. DIERS: Yes.

DR. MACKEY: Well, all that I can say,

again, I am not a biologist, so I'm not an

expert on the IBI and all of the potential

uses for that indeces. But it's my

understanding that a high quality reference

stream that's being discussed already

represents the highest level of physical,

chemical, and biological integrity that can

be attained in a system. That's what this

whole concept is. The use of the reference

stream is necessary to establish the highest

potential IBI scores in the system with

similar hydrogeomorphic and environmental

conditions. It is only by identifying the

highest potential IBI scores that comparisons

can be made to determine the appropriate and

142

attainable aquatic life use scores and

whether or not those scores have been

attained.

MS. DIERS: Prefiled Question 57. On

Page 10 of your prefiled testimony you state,

"In fact, the minimum IBI scores observed at

the two monitoring stations in the Cal-Sag

Channel are among the lowest in the CAWS."

Do you believe that the minimum IBI scores

for the Calumet-Sag channel provide useful

information about the biological potential of

the stream?

DR. MACKEY: Well, as you know, my

expertise is focussed on characterizing and

mapping physical habitat and linking those

habitats to physical processes. I'm not a

biologist, so I'm not sure I feel qualified

to answer that question. Other witnesses to

follow, I believe, will discuss biological

aspects of the CAWS.

MS. DIERS: Would that be the same

answer for the next question in that did you

believe that the maximum fish IBI scores from

the Calumet-Sag channel provide useful

143

information about the biological potential of

the stream?

DR. MACKEY: Yes. I just don't feel

qualified to answer that question.

MS. DIERS: So what was the point of

your statement that I referenced in Page 10

of your prefiled testimony?

MR. ANDES: Which statement?

MS. DIERS: Quoted in Question 57.

DR. MACKEY: Question 57?

MS. DIERS: I provided the quote. I

just want to know what the purpose of that

statement was.

DR. MACKEY: Just a second here. I

only put part of your questions -- your

questions are pretty massive.

HEARING OFFICER TIPSORD: It's at the

bottom of Page 10, the last paragraph. It's

the last sentence at the bottom of Page 10.

DR. MACKEY: On my prefiled testimony.

If I understand, again, I'm not an expert on

this particular -- on the IBI, but I

understand that there is a specialized

protocol for the wadable versus the

144

nonwadable IBIs, fish IBIs, and that

apparently when the actual IBI values were

calculated that they did not use the -- they

used the wadable approach rather than the

nonwadable approach. And what it means is

that most of the IBI scores that were

reported, as I understand it, and, again,

this is in discussion with fisheries

biologists, that the IBI scores that were

reported by the CAWS UAA contractor are a bit

inflated by several points over what would be

the correct way to have calculated the IBI.

MS. DIERS: How are they inflated?

DR. MACKEY: I would refer you to

fisheries biologist to describe that in more

detail.

I viewed this process in a

little more detail on I believe Page 11 on

the next paragraph. This is, I think, a

different type of -- but that's okay.

MS. DIERS: So did you say you talked

to a fishery biologist that told you they

were inflated, or did I misunderstand?

DR. MACKEY: I looked for guidance. I

145

worked collaboratively with fisheries

biologists and/or aquatic ecologists and --

with respect to the IBI. And, again, I am a

geologist by training. Certainly there are

supposedly linkages, and certainly the

IEPA -- in the Illinois EPA's testimony and

in their statement for reasons, there are

linkages made between the QHEI and IBI

scores. Certainly you can agree with others

there are some statistical relationships to

develop. And so I inquired, since I'm not a,

quote, expert on the IBI, I said how good are

these IBI values? Are they a reasonable way

to do this? And these folks took a look and

they said, hey, we don't think that this was

done properly, and that's what I reported in

my testimony.

MS. DIERS: Who are these folks you're

referring to?

MR. MACKEY: Speaking to some of the

fisheries biologists in the district. And

also I discussed this in part with fisheries

biologists from the Ohio Division of Wildlife

as well.

146

MS. DIERS: Can you provide any names

who you talked to at the District and at

Ohio?

DR. MACKEY: It would be Jennifer

Wasik, I think I discussed this briefly with

Sam Dennison; and then within the Ohio

Division of Wildlife it was Jeff Tyson who

was the supervisor of Lake Erie Fisheries.

MR. ANDES: Was it also -- Was it

basically your point of the IBI scores that

the low IBI scores for Cal-Sag seemed to

indicate that it should not be put in

Class A?

DR. MACKEY: Yes.

MR. ANDES: Thank you.

MS. DIERS: I'll go to Question 58.

HEARING OFFICER TIPSORD: Miss Diers,

before you go to Question 58, we've been back

at it for about an hour and a half. I've got

12:20. But I did want to ask you, I notice

you're -- And I appreciate the way you've put

these questions together. They are flowing.

But you have skipped about 23 of them. So if

you could give us an indication perhaps after

147

lunch of which -- how many of those are

already answered or you're saving just so we

have an idea of where we're at this afternoon

as far as how many questions we have left to

go. With that, let's take an hour for lunch.

Come back at about 1:25.

(Lunch break taken.)

HEARING OFFICER TIPSORD: Good

afternoon, everyone. I want to compliment

you all on getting back here on time and all

of that. It's greatly appreciated.

Miss Diers, we're ready to go.

MS. DIERS: I'm going to start on Page

105. I know you asked prior before we left

for lunch, I have about four questions on

Page 96 I will go back to, but everything

else between 96 and 104 is done.

HEARING OFFICER TIPSORD: All right.

MS. DIERS: I'm going to start on Page

105, Question 58. I'm going to go to the

last question in that paragraph. Did

Rankin's report also indicate that the

Chicago Sanitary and Ship Canal at Lockport

was wider and had some littoral habitat,

148

however, this was very limited in scope and

were extremely embedded with silty mucks and

sand that were poor quality?

DR. MACKEY: Just hang on one second.

MS. DIERS: That would be Attachment R

that I'm referring to.

DR. MACKEY: With respect to Rankin's

2004 survey, Attachment R and the quote that

you have quoted in the question, yes,

Rankin's survey did indicate the presence of

littoral habitat in the Cal-Sag Channel; and,

yes, Rankin's survey did indicate the

presence of poor quality littoral habitat in

Chicago Sanitary and Ship Canal at Lockport.

But, and the but is in the sentence that

follows those two sentences, Rankin reported

that littoral habitat was similar, littoral

habitat was also present between the Harlem

and Cicero bridges in the Chicago Sanitary

and Ship Canal. So his statement isn't

correct, but that's in combination, if you

take it in full context where he's talking

about some similar habitat characteristics

that also exist in the Sanitary and Ship

149

Canal.

MS. DIERS: Question 59: On Page 10

of your prefiled testimony you state, "The

weathering of the bank walls provides a

slight shallow shelf with limited habitat for

fish." What is the basis for this statement

and how are you using the term slight and

limited?

DR. MACKEY: We've already been

through some of this in the testimony in the

morning. But these statements were based

on -- in my prefiled testimony were based on

the reconnaissance field observations which I

did on the ground and looking at the high

resolution bathymetric data collected by the

U.S. Army Corps of Engineers, which I've

described briefly as well. That gives you an

idea of what the channel morphology is like

and what's shallow and what's deep. And also

what some of the materials are, at least that

are exposed above the water surface. And

then as we talked about as part of the

habitat evaluation improvement study, we

also, or I also collected side-scan sonar

150

data, some of which you've seen an example of

from the Route 83 area that basically, you

actually can see what the submerged area of

that area looks like. And so that forms the

basis for that statement based on at least

three different sets of different types of

observations from my work along the Cal-Sag

Channel.

MS. DIERS: Did that answer quantify

how you -- using the term slight and limited?

DR. MACKEY: You're right. Thank you.

Actually, we talked briefly

about this as well. Based on the

reconnaissance side-scan sonar surveys, the

percentage of bank edge habitat structure

varies by reach; and, where present, ranges

from 5 to 8 percent of the total channel area

in the Cal-Sag Channel. We discussed that

earlier. The littoral zone referred to by

Illinois EPA and the Cal-Sag Channel is, as I

mentioned before, undefined, but in making an

assumption that it is a depth limitation, and

we talked about the possible size of waves

and the wavelength, is just, say, perhaps

151

less than the three foot water depth.

Looking at the bathymetry and also the

side-scan data, the littoral zone that I

think Illinois EPA is thinking about is less

than 2 percent of the total channel area.

And I think numbers like that are

certainly -- one can characterize as slightly

limited. I hesitate to put a percentage on,

well, if it's greater than 10 percent it's

something else. But I think you understand

the gist of what I'm getting at here. It is

not a large area in the Cal-Sag.

MS. DIERS: I'm going to strike

Question 60, and that will take us to

Question 61. On Page 10 of your prefiled

testimony you state, "A small amount of

rubble from the crumbling walls does very

little to improve the overall physical

habitat for fish and invertebrates in the

Cal-Sag Channel." How did you determine

this?

DR. MACKEY: Well, just as I described

just a few minutes ago or seconds ago, the

actual physical characteristics are based on

152

a combination of field site visits where I

actually observed what was above the water

column, the bathymetry from the U.S. Army

Corps of Engineers, and then also the

side-scan data that was collected. And

that's the physical aspects of that. And

that's fairly clear. I think in terms of the

overall physical habitat for fish and

invertebrates, I think for invertebrates it's

probably okay. I mean large blocks like

that, the inverts, they like that large, that

substrate. And from what I understand,

again, I'm not a biologist, but from what I

understand the large relatively stable

substrate like that, you know, the inverts, I

think, I think they'd be pretty happy there

assuming there's an appropriate food supply.

For fish, we've already had a

part of the discussion on that based on some

of my discussions with fisheries biologists

who have worked in Lake Erie and some other

areas. Certainly these large blocks serve

as, in essence, predator habitat for, let's

say largemouth bass. Again, I don't believe

153

that these are going to be terribly useful

for -- as spawning habitat or nursery habitat

or either early life stage or

young-of-the-year fish.

MS. DIERS: Question 62: On Page 11

of your prefiled testimony, you interpret

that there is no one-to-one correspondence of

IBI scores to QHEI scores. Do you believe

that statistical relationships established

for QHEI scores and fish IBI scores similar

to those in Figures 1 and 2 on Page 7 and 8

and Rankin 1989 are not useful for informing

the determination of appropriate aquatic life

uses for a stream?

DR. MACKEY: In answer to your

question, yes, I do agree that statistical

relationships may exist between the QHEI

scores and fish IBI scores, and that those

relationships can be useful. In general what

they tell us is that as habitat quality

improves in general, one can expect an

increase in the IBI scores, which means you

may have a somewhat more healthy, let's say,

fish community, however you want to define

154

that. Even though there is a tremendous

amount of scatter associated with that. In

other words, it's not a direct one to one.

You could be off by an order of magnitude or

two, but the trends are fairly clear. The

issue here, though, is that in Figure 5-2 the

CAWS UAA report, that's not the type of plot

that is described that you're describing here

by Rankin. And, in fact, the plots that

provided examples in the 1989 report were not

included in any way, shape, or form, within

the CAWS UAA report. In the Rankin 2004

report on habitat which is Attachment R, or

in any of the materials or hearing testimony

submitted by Illinois EPA as part of the

proposed aquatic life use designations. So

my answer is yes, as it was applied here in

Ohio. Yes, it certainly is valid. But this

is not what was done here in Illinois in the

CAWS.

MS. DIERS: And I know we've made

reference to Rankin 1989. I believe that's

Exhibit 175, for the record.

Question 63: Is it your

155

opinion that quantitative graphs and

relationships between QHEI scores and fish

IBI scores similar to Figure 19 on Page 40 in

Rankin 1989, Exhibit 175, are not useful for

informing the determination of appropriate

aquatic life uses for a stream?

DR. MACKEY: No. That's not my

opinion. I think these types of plots can be

useful. What she's describing on Page 40,

it's a plot that actually a percentage of

sites on the left-hand access and IBI range

scores on the bottom access basically from 12

up to 60 are grouping. It's almost like a

histogram plot in a sense. And then they

have a couple of different line types and/or

dot types as a function of whether you're

looking at different QHEI or habitat

characteristics. What it is, in essence,

it's a frequent -- it's showing a frequency

distribution of IBI scores for a certain

range of QHEI values. And what this does, in

essence, shows you the patterns or the

linkages in a broad way between the IBI and

the QHEI. And as it's plotted in the Rankin

156

1989 paper on Page 40, it's a good plot.

It's reasonable and it could conceivably be

useful. However, the type of frequency

distribution plot referred to here was not

included in the report by Rankin 2004, which

is Attachment R, or in the CAWS UAA report or

in any of the materials or testimony

submitted by the Illinois EPA in support of

the proposed aquatic life use designations.

So, yeah, Rankin, it's a good plot, but this

type of plot was not presented in any of the

information that I've seen related to this

aquatic life use designation.

MS. DIERS: Question 64: Do you

believe that the Clean Water Act requires

that aquatic life uses represent desired

aquatic communities as you mention on Page 13

of your prefiled testimony?

MR. ANDES: I'll object to that one

because it's clearly asking a legal question

of whether the Clean Water Act requires

something.

MS. DIERS: I didn't see it as a legal

question. I was just asking his knowledge of

157

the Clean Water Act, if he had an opinion

based on his understanding of the Clean Water

Act.

MR. ANDES: I still think it's a legal

question. He's not a lawyer.

HEARING OFFICER TIPSORD: Give me a

second. I'm trying to think of another word

other than requires that wouldn't be a legal

interpretation.

How about this. Why don't you

give us your opinion based upon your lay view

of the Clean Water Act and your knowledge as

a lay person.

DR. MACKEY: That's pretty easy to do.

Well, first of all, again, just to

reemphasize, my expertise is not in the Clean

Water Act, and it is focussed on

characterizing and mapping of habitat. And

the answer for this for you is very short. I

don't believe, as a lay person, that the

Clean Water Act specifies or defines what a

desired aquatic community is. However, it

would seem reasonable to assume that there

would be a correspondence between desired

158

aquatic communities and aquatic life uses for

general waters. Okay.

MS. DIERS: I'm going to strike

Question 65.

Sixty-six: Do you believe the

CAWS waters have the capability to

potentially support balanced populations of

aquatic organisms?

MR. ANDES: And he's answering this

again as a lay person with his own judgment,

not as a legal matter?

HEARING OFFICER TIPSORD: Absolutely.

MS. DIERS: Right.

DR. MACKEY: With the appropriate

caveats, this is a really short answer. On a

system-wide basis, no.

MS. DIERS: I'm going to strike

Question 67.

68: Of the states that have

aquatic life uses based on the concepts of

tiered aquatic life use approach, do you know

of any aquatic life uses that are defined by

lists of particular species or taxa of

aquatic organisms? And, if so, could you

159

provide some explicit examples.

DR. MACKEY: Yeah. Again, with the

caveat that I have -- I think I mentioned

earlier that I'm not an expert on the UAA and

the aquatic life use designations. My

expertise is primarily focussed on

characterizing and mapping physical habitat

and linking those habitats to physical

processes.

But in response to this

question, I do not believe that lists of

particular species or taxa of aquatic

organisms should be used to define an aquatic

life use. I need to make it clear, nor have

I suggested such, in my prefiled testimony.

However, I do believe that is incumbent on

Illinois EPA to clearly explain all the

anticipated biological outcomes that will

result from a set of actions taken to achieve

proposed aquatic life use. Unfortunately,

Illinois EPA has not defined what tolerant or

intermediately tolerant fish communities are,

nor have they identified the species

associated with those communities.

160

Second, Illinois EPA has

not described the measures or metrics used to

assess whether or not the proposed aquatic

life uses are attained. Depending on the

metrics used, a description of the fish

communities and/or species anticipated would

probably be required for the CAWS. And,

third, the CAWS is an artificial system, and

the tolerant or intermediately tolerant fish

communities, whatever they are, anticipated

to be within the CAWS are likely to be

different than tolerant or intermediately

tolerant fish communities in a degraded

natural system. The organisms that live in

the CAWS today are opportunistic and are

severely limited by the artificial nature of

the CAWS.

So if you're thinking, well,

jeeze, if other states have tolerant and

intermediately tolerant descriptions, that's

based on a natural system. And those are

from a natural system that has become

degraded. Those types of communities,

whatever they are, may be different than the

161

CAWS which has started from basically a

concrete pipe and is basically moved upward

and has become colonized by organisms that

happen to be passing through the system. I

think that there would be a difference

between the two.

MS. WILLIAMS: Dr. Mackey, can I ask a

follow-up, what you base that opinion on?

DR. MACKEY: Pardon?

MS. WILLIAMS: What do you base that

opinion on that the tolerant organisms here

would be different here than in a natural

degraded system.

DR. MACKEY: It's an inference that

I'm making based on best professional

judgment. I have no data or information that

would suggest that that would be the case.

MS. WILLIAMS: That's professional

geologic judgment or --

DR. MACKEY: I'm not sure I would call

it geologic judgment.

MS. WILLIAMS: Can you give examples?

DR. MACKEY: I cannot give an example

of that. It's just one would think that in a

162

system that is natural and is degraded, that

there were existing communities, say existing

biological communities that exist for

organisms. And as you degrade those systems,

that community structure may change. And,

again, this is an assumption I make in just

having general discussions with fisheries

people.

MS. WILLIAMS: And do they mean that

the specific species that would be present

are different or the relative abundance of

certain species?

DR. MACKEY: It could be either. It

could be either.

MS. WILLIAMS: But you can't point to

any examples?

DR. MACKEY: I cannot point to

anything. I just -- The point I'm trying to

make here is that, again, I believe that

there is a difference between a natural

system that is degraded and an artificial

statement that has been created from nothing

and has been opportunistically colonized by

organisms that happen to be passing through

163

the system. And to assume that both of those

types of systems would be equivalent or would

have similar characteristics, I do not

believe is a reasonable assumption.

MS. WILLIAMS: But aren't you making

the assumption also that they're different?

I don't understand how that assumption is

more reasonable.

DR. MACKEY: Absolutely. But that's

my prerogative.

MR. ANDES: Well, you believe there's

a reasonable basis for the assumption that

these two water bodies would be different in

terms of the population they support?

DR. MACKEY: Yeah, I do. I do.

Definitely.

MS. WILLIAMS: Thank you.

MS. DIERS: I'm going to strike 69,

70, 71, 72, 73, 74, and go to, I believe,

Question 75. Just give me a minute.

Question 75: Did Mr. Rankin in

his report, Attachment R, indicate that

because of effects of often multiple

stressors, the biological results may

164

underestimate the potential attainment that

could be expected in the absence of such

stressors? In these cases, the QHEI and

metric scores at a site, scores of nearby

reaches, and accrual of important limiting

habitat factors and the loss of positive

habitat factors are used as evidence and in

support of given aquatic life use along with

the knowledge of the feasibility of restoring

the limiting factors.

DR. MACKEY: Yes.

MS. DIERS: On Page -- This is

Question 76: On Page 13 of your prefiled

testimony, you state, "In a statement of

reasons, the IEPA hypothesizes that increased

DO and reductions in temperature will

significantly improve fish diversity and

community structure within the CAWS. Would

you please identify the specific part in

Illinois EPA statement of reasons to which

you refer?

DR. MACKEY: IEPA or the Illinois EPA

has proposed incremental increases in the

minimum dissolved oxygen standards for the

165

proposed Aquatic Life Use A and B Waters on

Table 1, Page 50 in the IEPA statement of

reasons.

MS. WILLIAMS: I think we agreed that

was Page 60.

DR. MACKEY: I apologize. That's a

typo on my part. Thank you. Higher

dissolved oxygen standards are proposed for

Aquatic Life Use A waters to protect larval

and young-of-the-year fish emerging from

potential undocumented spawning sites in the

CAWS. Illinois EPA in the statement of

reasons on Page 48 also states that they

anticipate tolerant and intermediately

tolerant fish communities in response to the

proposed standards associated -- I'm sorry --

also states that they anticipate tolerant and

intermediately tolerant fish communities to

be present in response to the proposed

standards associated with Aquatic Life Use A

Waters. Since Illinois EPA has not presented

any data or information that would support

the contention that an incremental increase

in water quality standards will result in

166

attainment of the proposed aquatic life use

goals. Illinois EPA is hypothesizing that an

incremental increase in water quality, or the

dissolved oxygen standards, will result in

tolerant and intermediately tolerant fish

communities, whatever they are, since these

communities have not been defined.

MS. DIERS: I'm going to strike 77.

You might have answered 78, but I'll go ahead

and ask it anyway. On Page 14 of your

prefiled testimony you state, "Physical

limitations such as lack of shallow bank edge

habitats and riparian cover, lack of instream

cover diversity, in quotes. Are you aware

that these types of habitat attributes are

taken into account in the QHEI?"

DR. MACKEY: Yes. These factors are

certainly considered in the QHEI scores.

However, many of the QHEI metrics and

submetrics are the same. In other words,

they've been held constant throughout a good

portion of the CAWS, and we've already

discussed that. And the scores reflect

variability, and only a few of the submetrics

167

used to calculate the overall QHEI scores.

Two of the most important metrics, substrate

and instream and bank edge habitat have not

been properly assessed due to a reliance on a

limited number of lively spaced point

samples, 20, to be exact. With minimum

ranges between sampling sites of about half a

mile, the mean is 4.3 miles and the maximum

distance is 15.8 miles. So there's an awful

lot of habitat there that we really don't

know that much about or have any data on.

For example, the substrates and instream

habitat at bank edge habitat in the 16-mile

long Cal-Sag Channel are characterized by

only two widely-spaced sampling sites 10.7

miles apart. My experience mapping aquatic

habitat in great lakes tributaries and near

shore areas clearly shows considerable

heterogeneity and habitat structure within

these systems. Unfortunately, existing data

are insufficient to properly assess substrate

distributions and instream habitat within the

CAWS. The ongoing habitat evaluation

improvement study is designed to address many

168

of those deficiencies.

MS. DIERS: I'm going to strike

Question 79.

Do you understand that the

proposed Aquatic Life Use A and B Waters by

Illinois EPA are designated uses that are

below the Clean Water Act goal?

DR. MACKEY: What question is this?

MS. DIERS: It's actually the last

question on prefiled Question 79. I struck

the beginning of it, but I'm going to ask the

last half.

DR. MACKEY: Okay. All right. Well,

I think we discussed this already a bit. I

think from the narrative description, yes,

the proposed Aquatic Life A and B designated

uses are below the Clean Water Act goal, but

from a standards perspective they are, in

essence, the same as the Clean Water Act

goal. And we talked about that, I think,

earlier this morning. In other words, in

terms of dissolved oxygen standards.

MS. WILLIAMS: I thought this morning

that you said that you didn't know if the

169

standard had all the components of the

general use.

DR. MACKEY: That's not what I stated,

I believe. I think I referred to that, the

table that was in the Illinois statement of

reasons, and that described the dissolved

oxygen as to whether or not that's an exact

lay-down. I said in essence. There may be

some minor variation of differences between,

but from a dissolved oxygen standard and for

all intents and purposes, it's basically the

same.

MS. DIERS: I'm going to strike

Question 80.

Question 81 on Page 15 of your

prefiled testimony you state, "For much of

the CAWS, fish richness and diversity has

improved remarkably since effluent

chlorination was terminated in 1984." Is it

true that MWRDGC did not dechlorinate prior

to this time?

DR. MACKEY: That quote, I believe, is

on Page 14 of my testimony. I think that's

an error in your question. Other than what's

170

published in the district fisheries report by

Dennison, et al., in 1998, I think it's

report 98-10, I do not know the

dechlorination history of the CAWS. I do not

have the background or expertise to evaluate

the potential effects of wastewater,

nitrification, nonfish-richness and diversity

within the CAWS, and nor am I aware of any

significant improvements in physical habitat

and quality overview from that time period.

That answers the entire question, okay?

MS. DIERS: So you -- Would you

consider the addition of nitrification to

wastewater treatment plants to also be major

factor --

DR. MACKEY: I have no opinion. I've

not done any. I don't have that expertise.

MS. DIERS: Question 82: On Page 15

of your prefiled testimony you state,

"Moreover, the existence of active angler

groups in bass fishing tournaments on the

waterway also suggest that for many species,

water quality, DO and temperature for much of

the CAWS is not a significant limiting

171

factor."

What is the scientific basis for

this statement and what species are you

referring to?

DR. MACKEY: The answer to this is

fairly simple. If fisherman are catching

significant numbers of largemouth bass in the

waterway, then current environmental

conditions in the waterway are not limiting

the abundance of the largemouth bass.

Anglers may be catching other species as

well, but I don't have a list of species

commonly caught on the waterway. And I would

refer you to fisheries biologists who worked

on the waterway to get a better assessment of

what fish are actually being caught there.

In terms of the species in this particular

statement, I was referring to largemouth

bass.

MS. DIERS: Do you believe the Agency

needs to establish dissolved oxygen standards

to protect largemouth bass?

DR. MACKEY: I would say at this point

no, because I think you've already got a --

172

from what I understand largemouth bass are

abundant within many portions of the CAWS.

And I would suggest that existing dissolved

oxygen levels are adequate to maintain the

largemouth bass population.

MS. DEXTER: Are you making a

distinction between an existing level and a

standard?

DR. MACKEY: I'm not sure that I am.

MS. DEXTER: Well, there is a

difference.

DR. MACKEY: Okay.

MR. ANDES: Was the question does he

think there should be any standard or does he

think that the standard should be tightened?

I think he was responding to whether he

thought the standard should be tightened.

MS. DEXTER: I think her question was

should dissolved oxygen standards protect

largemouth bass.

DR. MACKEY: In that case I would say

yes, the answer is yes. It certainly is an

appropriate species to be protected, yes. I

misinterpreted that question.

173

MR. ANDES: Do you think the existing

standards do already protect the largemouth

bass?

DR. MACKEY: Given the numbers of

largemouth bass, apparent numbers of

largemouth bass in the system, I would say

yes.

MR. ANDES: Thank you.

MS. WILLIAMS: Do you know what the

current levels of dissolved oxygen are in the

system?

DR. MACKEY: No, I do not.

MS. WILLIAMS: Do you know what the

current standards are?

DR. MACKEY: No. I'm not prepared to

answer that.

MS. WILLIAMS: Thank you.

MS. DIERS: I'm going to go to

Question 83. On Page 15 of your prefiled

testimony you state, "Certainly there

continue to be DO and temperature limitations

for other desirable less tolerant species."

Do you understand that the

proposed dissolved oxygen standards are based

174

on protecting early life stages as sensitive

as those as the channel catfish and other

life stages as sensitive as those of the

largemouth bass, USEPA 1986?

DR. MACKEY: That's my understanding.

MR. ANDES: Could you put your

statement into context in terms of what you

said in your prefiled testimony more fully?

MS. WILLIAMS: What did you ask, Fred?

I missed your question.

MR. ANDES: The statement that was

quoted, I asked him to please put it in

context.

DR. MACKEY: Okay. The place to quote

in context in the prefiled, in my prefiled

testimony, I said certainly there continue to

be dissolved oxygen and temperature

limitations for other desirable less tolerant

species. And that's what was in the

question. But also included, in parentheses,

which are not specifically identified in the

UAA report or Illinois EPA's statement of

reasons. But if suitable habitats are not

present, sustainable populations of these

175

species will not become established in the

CAWS irrespective of how much improvement

there is in water quality. So when taken in

context, I'm basically suggesting that the

habitat limitations in the CAWS may be more

significant or are more significant than some

of the apparent DO or temperature limitations

in the CAWS.

MS. DIERS: Question 84: On Page 15

of your prefiled testimony you state, "In

fact, fair to good Macroinvertebrate Biotic

Index, the MBI scores, from the in-water

column Hester-Dendy samplers an very poor MBI

scores within the CAWS sediments on our graph

samples suggest that water quality

improvements may already be sufficient to

support a more robust and diverse

macroinvertebrate community if suitable

habitats were present in the CAWS." That's

Wasik testimony. Is it true that in the

Wasik testimony -- the Wasik testimony does

not discuss nor provide any MBI data?

DR. MACKEY: You're correct.

Miss Wasik did not present nor discuss any

176

MBI data. This was a typo in my prefiled

testimony. The corrected version should

state, quote, "If suitable habitats were

present in the CAWS, and then parentheses,

prefiled testimony of Dr. Melching on Page

9."

MS. DIERS: What is the MBI based on?

DR. MACKEY: Again, my expertise is in

habitat and not in macroinvertebrate

communities. So I am not, I think, qualified

to answer that question in terms of -- Oh,

okay.

However, just follow on, a

description of the macroinvertebrate biotic

index and sampling protocols as used by

Illinois IPA and the CAWS UAA contractor are

described in more detail in the CAWS UAA

report in Attachment B. And that's on Pages

4-17 through 4-19. And in answer to that

question based on the description, again, I

don't actually calculate MBIs. I don't pick

bugs, at least these types of bugs. The MBI

is based on the pollution tolerance for

individual species where the average

177

tolerance ratings are rated by species

abundance.

MS. DIERS: Question 85: On Page 15

of your prefiled testimony you state, "The

substantial investment needed for

infrastructure to provide incremental

increases in DO and/or reductions in

temperature will not yield a proportionate

biological response with respect to attaining

sustainable fish communities and/or

beneficial uses."

What is the substantial

investment to which you refer?

DR. MACKEY: I was making a general

comment based just on common sense. And that

is if you're going to spend substantial sums

of money to upgrade the infrastructure to

meet new proposed aquatic life use standards,

then you'd better be sure that you do

homework to be sure, No. 1, it's going to

work and that it's cost-effective, and that

the anticipated benefit's worth the cost.

MS. DIERS: So you haven't

performed --

178

DR. MACKEY: No. I do not have that

expertise or capability. I can't balance my

checkbook, according to my wife, so.

MS. DIERS: Question 86: On Page 16

of your prefiled testimony you state, "The

lack of diverse bank edge and instream

habitats in the CAWS may be a much more

significant limitation on the development of

sustainable fish communities and current

levels of DO or temperature." Do you believe

that current levels of DO and temperature in

the CAWS are having no detrimental impact on

the present fish community?

DR. MACKEY: Illinois EPA has not

presented any data or information that would

support the contention that a system-wide

incremental increase in dissolved oxygen

standards or reductions in temperature result

in attainment of the proposed aquatic life

use goals. Illinois EPA has not presented

data sufficient to show that current

dissolved oxygen or temperature levels are

having a detrimental impact on the present

fish communities. If this were the case, one

179

would expect frequent fish kills in the

waterway. However, it's my understanding

that fish kills are not common which would

suggest that current DO and/or temperature

levels are adequate to maintain and support

the fish -- the existing fish and aquatic

communities that are currently in the

waterway. So I guess my answer is no, I

don't -- I don't see evidence that the

dissolved -- the current dissolved oxygen

levels are necessarily having a detrimental

impact on the fish communities in the

waterway.

MS. DEXTER: Did you say that you also

believe that was true with temperature also?

DR. MACKEY: I've not -- It's in my

statement that I've responded to, but I have

not done an analysis of temperature. So I

will step back from that and say that's not

my area of expertise.

MS. DIERS: To be negatively affected

by low DO or temperature, do fish have to

die?

MR. MACKEY: Not necessarily, I would

180

think. But I would think that that would

certainly, if you have fish kills, that would

be one reason to have for those fish to die,

of coarse, would be low dissolved oxygen

levels. And that does occur in some areas in

the Great Lakes. And we have what they call

the Dead Zone in the central basin of Lake

Erie.

MS. DIERS: Question 87: Do you

believe that the chemical, physical, and

biological information available from the

CAWS indicates that insufficient physical

habitat conditions are the primary reason for

the existing low fish IBI scores in the CAWS?

DR. MACKEY: Again, qualifying this

more as a lay person because of the IBI

scores, that's not something I calculate

directly. But from the perspective of a

habitat, yes, I believe the CAWS has a

habitat limited system and that limited

habitat availability is the primary cause of

existing low fish IBI scores in the CAWS.

However, I do not agree with the statement

that the physical habitat has been degraded.

181

The CAWS channels were originally constructed

and maintained without regard to habitat or

ecological function. The CAWS channels --

I'm sorry -- high quality physical habitat

has never existed in the CAWS; and,

therefore, degradation has not occurred. In

fact, current waterway system is, for the

most part, entirely artificial and does not

bear any resemblance to the natural

conditions that existed prior to construction

of the waterway.

MS. DIERS: Question 88: Is it your

opinion that the habitat index that I believe

you're involved with working on will show

that the aquatic life uses proposed by

Illinois EPA for the CAWS are not attainable?

DR. MACKEY: That's what we discussed

earlier. I'm not directly involved with the

development of that habitat index at this

time. And so really I can't predict if the

habitat index will show whether or not the

aquatic life use as proposed by Illinois EPA

for the CAWS are attainable. I do believe

that a new habitat index will provide a more

182

accurate assessment of habitat quality in the

CAWS and in other urban systems as well. And

I think that the assessment will be much more

appropriate than an assessment that's based

on existing indices that are derived from

natural systems.

MS. DIERS: Question 89: How will a

CAWS specific habitat index be used to

determine the biological potential; i.e., the

best possible biological conditions assuming

that all reversible -- reversible detrimental

impacts are mitigated?

DR. MACKEY: Again, same caveat

applies about my involvement with or the

involvement of the habitat index. As I

mentioned in the previous statement, I

believe that a new habitat index will provide

a more accurate assessment of habitat quality

in these urban systems and artificial

systems. And I would envision this new index

being applied in conjunction, perhaps, with a

more rigorous biological index, something a

bit different than the IBI. How that would

play out and whatever I don't know, but I

183

would think that there may be a more

appropriate or a different type of biological

evaluation that would be applicable in these

types of artificial or highly modified

systems. And what I would envision is the

linkage of these two types of indices and

give us a very powerful tool to evaluate not

only habitat, but the biological linkages to

that habitat; and, even more importantly, it

would be done at a much finer scale than

we're currently doing it now, which would

give us a much better feel for where

potential enhancement or improvement

opportunities may exist within the system.

And I think that's -- We'll have to wait and

see what the results are from habitat

assessment evaluation and improvement study.

But I think that there is a potential here to

develop something that could be incredibly

useful and helpful in terms of moving this

process forward.

MS. DIERS: That's going to take me to

Question 9 on Page 96. When was it

determined that the habitat evaluation and

184

improvement study referred to on Page 16 of

your prefiled testimony needed to be done?

DR. MACKEY: This is Question 9?

MS. DIERS: Yes.

DR. MACKEY: I have go up here.

Question 9. I don't know -- I'm not privy to

the internal machinations or discussions of

the District. All I can answer is that the

District issued a request for proposals in

the fall of 2007 for the habitat evaluation

improvement study. I have to assume that

sometime before that that the District made

the decision that they needed more detailed

and accurate habitat information.

MS. DIERS: So, in your opinion, is

this habitat evaluation and improvement

study, is it redoing what CDM did with the

UAA or will it be building on what was done

with the UAA Attachment B?

DR. MACKEY: Well, in answer to your

question, the -- I'm not sure that's

necessarily redoing the CDM report. My

understanding is that the study is focussed

on characterizing the physical habitat

185

characteristics and evaluating the biological

communities, some very specific taxa that may

be important to the system that use those

habitats within the CAWS. We have a handout

here, and Fred will -- and then we can

discuss this for a few minutes. This was an

attachment in my prefiled testimony, I

believe. It's also in color. Red, green,

and black, as I said, are the only colors I

have.

HEARING OFFICER TIPSORD: This is an

attachment to your testimony.

DR. MACKEY: I believe it's

Attachment 3 to my prefiled testimony.

HEARING OFFICER TIPSORD: For ease of

reference, and since this one is in color,

we'll mark this as Exhibit 184, if there is

no objection.

Seeing none, it's Exhibit 184.

MS. WILLIAMS: You just want to break

the exhibit record, don't you?

HEARING OFFICER TIPSORD: I'm working

on it.

DR. MACKEY: If this wasn't in color,

186

would it still be an exhibit?

HEARING OFFICER TIPSORD: No. It's

because of the color. It makes it Christmas.

MR. ANDES: We'll remember that for

future handouts.

DR. MACKEY: It has to be seasonal,

right? Okay.

I'm not going to go through

everything on this thing, but what this

really does is it describes some of the major

sort of assessment factors or characteristics

which I think are important in terms of

looking at physical habitat and some other

aspects of this system. And whether or not

those assessment factors, what they're really

applicable to, whether they're applicable to

natural and/or artificial types of systems.

And what I've done is on the two columns to

the right, the column that says Rankin 2004

CAWS UAA and the statement of reasons, this

is basically in red a summary of sort of the

approach that was taken up to this point in

terms of the current habitat assessment and I

believe analysis, as I understand it. And

187

then on the right-hand side is the habitat

evaluation improvement study, and there's a

bit more of a detailed description of some of

the similarities and differences that this

study is going to be actually, from what I

understand, going to be doing. This document

was reviewed and updated by LimnoTech. So I

think it is a reasonable summary of what the

habitat evaluation and improvement study will

be doing.

Just to sort of skip on down

here, there's going to be some more sampling

work done. It will be geospatially

integrated with the continuous monitoring

stations. LimnoTech has run a survey of all

the bank areas in the CAWS. They actually

hooked up a video camera and tied it to the

GPS and actually ran a boat up. So they have

pictures along all of the CAWS shoreline now

with GPS coordinates. So for the side-scan

data we can tie that and integrate it right

together geospatially into a series of

different types of data layers.

Again, there's the, let's say,

188

the type and extent of substrates. They are

using all of the historic data, and that

would include CAWS UAA report data. So none

of that is going to be chucked out the window

necessarily. But I believe they also will be

using some newer techniques such as some of

the side-scan sonar and other data to

integrate this altogether.

In terms of substrate quality,

they are going to be looking at the sediment

quality data which is talking about grain

size. And if I recall from Dr. Melching's

description when he's talking about the

macroinvertebrate communities, it was a real

concern about the predominance of silt in

some areas of the waterway. And that was a

major limitation. I think they're also

looking at some of the inorganic chemical

data, some of the potential trace metals,

contaminants, and toxicity issues; and

looking at some of the historic chemistry and

contaminants data as well.

Instream habitat, they're looking

at the 30 sampling sites, and that's based in

189

part on physical habitat characteristics.

It's also linked back to some of the

biological sampling sites. And also that

will be tied in with the -- with some of the

side-scan data as well. The type and extent

of shoreline and bank edge habitats, we've

already talked about that. That's the

digital shoreline video. Riparian cover,

it's the same sort of thing where part of it

is based on the video data and then you've

also got some high resolution aerial

photography. They're not doing anything with

flow regime or water levels. And the reason

is this is primarily a regulated system, and

the chances for us really modifying the flows

in this system, you're not going to -- You

know, it's going to be regulated by the

lochs, it's going to be regulated for

navigation purposes, it's going to be

regulated for public health and safety. We

don't want to flood out the south side of

Chicago during a major storm event -- or the

north side either, as a matter of fact. I

think that happened recently. In fact, when

190

I was up in the North Shore Channel, I was

driving -- there was a pontoon boat. It was

actually flipped upside down on top of the

dock, and the motor was upside down as well.

And I think that was the result of some of

this flooding activity. That's a side point.

Water quality is a rigorous

evaluation of the continuous dissolved oxygen

data. And they have other supplemental

sites. Again, the details of that I'm not as

familiar with. They are working on a new

physical habitat metric --

MS. DIERS: Dr. Mackey, can I stop you

for just a second?

DR. MACKEY: Please.

MS. DIERS: Just so I understand,

LimnoTech is going all this work? Not you?

DR. MACKEY: That's correct.

MS. DIERS: Are you assisting

LimnoTech?

DR. MACKEY: Yes.

MS. DIERS: Exactly what are you doing

for LimnoTech?

DR. MACKEY: I have a subcontract with

191

them to acquire side-scan sonar data within

the CAWS, and then to assist them down the

road once we see what are the different

characteristics that come out of the side

scanning, how can we best integrate that in

with these other different data sets, the

historic data sets, and the data that is

currently being collected by their biologists

and by their sampling.

MS. DIERS: Do you know when the new

biological index you mentioned will be

completed?

DR. MACKEY: I do not know. I believe

the study is anticipated to be completed

sometime in the summer of 2009, but that was

an estimate several months ago. I don't know

if there's been an update or a change in that

date.

MS. DIERS: And do you know if this

study, is it going to have to go through peer

review and everything? Do you know how

that's going to work?

DR. MACKEY: I would suspect -- Again,

that's something that just -- this is work

192

being done for the District, and that would

be up to the District to decide as to what

sort of external review or peer review would

be required. I would suspect that a portion

of this work were to be published in a

scientific journal that it would undergo

professional peer review as any sort of

publication would.

MS. DIERS: So do you know if that

2009 date we talked about, did that factor in

a peer review time frame?

DR. MACKEY: I have no idea.

MR. ANDES: We can address some of

those issues. I know there were some issues

about the habitat study addressed to the

District witnesses Wasik and Dennison. They

can answer some of those questions. And then

if we need to bring in folks from LimnoTech,

the managers of that project, we can make

available to answer more detailed questions.

MS. DIERS: Thank you.

DR. MACKEY: I don't need to go

through the rest of this?

MS. DIERS: No. It speaks for itself.

193

DR. MACKEY: But you understand it

gives you a pretty good summary of the

detailed work that's ongoing, and they've

made very good progress to date from what I

understand.

MS. DIERS: Thank you. Question 91:

On Page 18 of your prefiled testimony you

state that, "The objective of the habitat

evaluation and improvement study is to

identify the most efficient and

cost-effective means to further protect and

enhance aquatic life use waters and

associated benefited uses in the CAWS."

Is the primary objective of

the habitat and evaluation improvement study

to determine the best attainable aquatic life

uses required by Clean Water Act in the CAWS?

DR. MACKEY: Counsel has reminded me

that I'm speaking as a nonlawyer, and this is

from a layman -- a lay person's perspective

here.

HEARING OFFICER TIPSORD: Often more

informed than the attorneys.

DR. MACKEY: Pardon?

194

HEARING OFFICER TIPSORD: Lay person

often more informed than attorneys.

DR. MACKEY: I'm not going to --

MR. ANDES: No objection.

DR. MACKEY: I'm sitting right next to

Fred here, okay? This is a dangerous place

to be.

The habitat evaluation

improvement study is designed to address

physical habitat characteristics of the CAWS

and to develop and apply new habitat metrics

and indices that are appropriate for urban

waterways or artificial waterways. This

study may develop a more rigorous biological

index based in part on habitat suitability

analysis for taxon, and linkages would be

developed; the more detailed and

comprehensive evaluation of biological

potential than is currently possible.

A comprehensive geospatial

data set also be developed to link together

environmental data sets associated with the

CAWS. And a copy of the District's request

for proposals, I believe, was attached to my

195

written summary report, and I believe it was

Attachment M if you want to see the details.

And where I'm going with this, what I've just

said, is that all of these are components and

things that need to be considered in terms of

moving toward determining what the best

attainable aquatic life uses are going to be

that are required by the Clean Water Act.

What I cannot say that this report

specifically, in terms of its objectives and

goals at this stage, is to come up with

recommendations for, let's say, new aquatic

life uses for the CAWS. But I think it puts

some pretty good pieces of the puzzle into

place. That will allow others to move

forward to get to where you want to be in

terms of actually identifying attainable

aquatic life uses that are appropriate for

the CAWS.

MS. DIERS: Do you believe habitat

improvements are not possible anywhere in the

CAWS; and, if not, why not? And this is just

a follow-up question based on the habitat

we've been talking about today.

196

MR. ANDES: Can you restate that?

MS. DIERS: Do you believe habitat

improvements are not possible anywhere in the

CAWS; and, if not, why not?

DR. MACKEY: I believe we touched on

this topic this morning, is that I do -- I do

not believe that there is no hope for the

CAWS. I do believe that there may be reaches

in the CAWS or areas within the CAWS where

either existing habitat characteristics,

which are very limited at this point, but

there may be opportunities for some types of

habitat enhancements or perhaps different

management strategies that would allow us to

improve the habitat conditions in the CAWS.

I can't answer specifically where or how that

would be done, because right now I don't

believe we have adequate data, habitat data

inhouse to make that type of assessment.

But, again, you know, the habitat evaluation

and improvement study, one of the objectives,

I think, is to identify potential

opportunities for enhancement or improvement

in the system. And I think with some of that

197

data, perhaps coupled with other information,

one could probably -- certainly I think we

could see improvements in the system. But I

don't think you'll see it on a system-wide

basis. I think there will be more local

improvements on a system-wide basis.

MS. DIERS: I'm done with my prefiled

questions. I think Miss Williams might have

a question she wanted to follow-up with.

MS. WILLIAMS: I just want to

follow-up real quick on a question that was

asked of Mr. Melching that he punted to

future witnesses, and you were one of the

folks he named. I'm not sure that he should

have named you, so I just want to --

DR. MACKEY: That's okay.

MS. WILLIAMS: I want to clear that up

just in case we don't have you back again.

DR. MACKEY: Steve Melching doesn't

get mad, he gets even. So he's getting even.

MS. WILLIAMS: He was asked, it was

Question 11 on Page 84 of his testimony, he

was asked about wet weather standards and how

whether wet weather standards would be

198

intended to protect recreational aquatic life

uses and whether -- how can aquatic life

potential vary before and after a storm

event. And he thought maybe you or

Mr. Friedman or others would better to answer

that question.

MR. ANDES: The question is how

aquatic life uses can vary or is it

potential?

MS. WILLIAMS: Potential, aquatic life

potential.

DR. MACKEY: I'm trying to find out

what the question is here, what are you

asking? Is that how the aquatic life use

potential may change as a function of wet

weather impacts or whatever? I really don't

have the expertise to answer that question.

The only area I might be able to touch on

that might be that it's from flow regime

perspective, if you have very high flows that

could be associated with wet weather. It may

have potential to change some of the bottom

habitat structure perhaps some of the grain

size of the material that is potentially

199

available to be transported. But I can't

really speak to some of the other wet weather

impacts or the time dependencies which he was

discussing in his testimony.

MS. WILLIAMS: Okay. Thank you. I'll

continue.

HEARING OFFICER TIPSORD: Miss Dexter,

you had some prefiled questions?

MS. DEXTER: Yes. And I have a couple

of follow-ups before I ask, before I ask the

prefiled questions. My first you had listed

a number of rivers that you've studied

previously. How many of those are artificial

systems that you would liken to this system?

DR. MACKEY: None of them are

artificial systems like the CAWS. I'm not

sure I would call the CAWS to be a unique

system, but it's a very rare and unusual type

of system. I would say the closest system

that I have worked in that is similar to this

would be the Don River in Toronto.

MS. DEXTER: Is that D-O-N-N?

DR. MACKEY: D-O-N, just the Don

River. That is the river system that -- It

200

is a natural river, but there are extensive

portions that had been channelized. It's a

straight channel reach, and either have sheet

pile structures or concrete or timber crib

structures along both banks. It is in

downtown Toronto, so it is every bit as urban

as downtown Chicago. It's concrete parking

lots right up to the edge, very few trees.

The only trees that are there are, in some

cases, there's woods on the bridges of which

there are tens of them going across. The

main difference in that system between the

CAWS is that it's considerably shallower

water depth. It is not used for any sort of

navigation. In fact, I think our boat, which

was an 18-foot John boat was probably the

only boat that had been up there in about six

months. And it is almost completely, the

substrate on bottom is almost completely a

median defined sand and some gravel.

Virtually no clay exposed, no bedrock

exposed. Discharges, it's an extremely

flashy system, and by that I mean that

because it is in an urban environment is that

201

water hits that pavement, it runs off and the

flood peaks are almost instantaneous and

very, very high.

The interesting thing is down

at the bottom where it flows into Lake

Ontario, this is going into the eastern-most

of the great lakes, the river actually takes

a 90 degree turn and heads due west, and it's

all armored. There are boats and ships.

It's just like a port where there are loading

and offloading facilities there. The reason

I'm involved in that work is that we are -- a

number of us have been thinking a lot about

river mouth systems, river mouths, which in

virtually all of the rivers in the great

lakes are highly altered, channelized, and

carved in shoreline banks very much like the

CAWS. And the Toronto Regional Conservation

Authority has, I think, around $65 million,

it's Canadian, but $65 million, and they are

looking to do habitat restoration and

actually modifying the channel design down at

the mouth of the river to try to attempt to

restore some of the natural habitat

202

functionality there. And so they'll

straighten the channel, they'll do some other

things. The issues are the same, though, in

the sense that they still have flooding

issues and storm water issues to deal with.

There's public health and infrastructure.

And those are all things that you have to

consider in these urban environments just as

you do in the CAWS. Because for the sake of

habitat, you can do certain things, but if it

floods out half the city, habitat is not

going to be a very popular issue, okay.

MS. DEXTER: Okay. Also earlier today

you stated that the Sanitary and Ship Canal

and the Cal-Sag are more similar than they

are different. Can you tell me whether the

Sanitary and Ship Canal has a shallow

littoral zone as the Cal-Sag does?

DR. MACKEY: In some areas there is a

shallow littoral zone. It's not as extensive

or as well developed or necessarily -- it's

not necessarily 80 percent of the San-Ship,

but there is something -- there is -- There

are some shallower water areas where the

203

channel widens out. And basically once you

get north of some of the bedrock areas and

you go more into the clay areas, you'll see

armor stone revetments that are behaving very

similarly to the coarse blocks that I

described in the Cal-Sag. The other issue,

as I mentioned before, along the vertical

bedrock walls. These are things that you

wouldn't necessarily be able to check very

easily, but on the side-scan it's very clear

that there is a series of lineal ridges that

are right along the edge of that bank and

it's made up of somewhat coarser material.

And that extends for, you know, it is

discontinuous. It also happens to have a few

car bodies down there as well, so there's

some anthropogenic in stream habitat as well.

MR. ANDES: I'm sorry to clarify. You

were saying that in the Cal-Sag, and I assume

this to be the same case possibly in the Ship

Canal, those could provide habitat for

predators, but you would not believe it would

provide spawning habitat?

DR. MACKEY: That's correct. That's

204

correct.

MS. DEXTER: Do you think it would be

reasonable to set water quality standards to

protect species presently found in the CAWS?

DR. MACKEY: I would think that that

would be appropriate, sure.

MS. DEXTER: Okay. My next question

is regarding your Exhibit 180 that you passed

out today.

MR. ANDES: Which one was that?

MS. DEXTER: It's the Exhibit 180, the

circle graph. Under water mass, you describe

that he -- you describe temperature as one of

the qualities of water mass. Is that -- Do

you think the temperature is a component of

habitat?

DR. MACKEY: I do from the perspective

of I'm thinking about the seasonal

fluctuations that occur in temperature, and

from what I understand how temperature is one

of the primary triggering mechanisms to

initiate certain types of, say, spawning

activity or when fish move up into tributary

systems to begin their spawning runs or

205

whatever. And that's the reason that I think

that -- that's the context in which I'm

discussing temperature here. In the great

lakes, that's on the riverine system. On the

great lakes, many times in the summer there's

a thermal structure that's built in the

lakes. You have a thermal climb where the

upper 10 or 15 meters are much warmer, and

then you go through a very rapid drop-off,

and then below about 15 meter water depths

and the water is incredibly cold. And it

turns out that a lot of the fish communities

and how they're geographically distributed

and the types of communities are tied very

much to that temperature, internal

temperature structure within the lakes. And

that in the fall that whole thing just

basically turns over as the upper waters cool

down. In a riverine system or in a system

such as the CAWS, I suspect that the

turbulence is such, and even though the flows

aren't great, there's still enough mixing of

the water column that you're -- you probably

cannot get that type of -- that temperature

206

stratification at least in the active areas

that you get in the lakes.

MS. DEXTER: Do you have any reason to

believe that this system is being impacted by

temperature?

DR. MACKEY: I've not evaluated any of

the temperature data or information in this

system, so I can't answer your question.

MS. DEXTER: Okay. I'm looking now to

my prefiled questions. I don't know given

your answer to that how well they are, but

I'll try. In various parts of your

testimony, you mention temperature effects as

something you do not believe that IEPA has

adequately studied. What portions of the

CAWS do you believe need further study with

regard to temperature effects, if you

actually believe --

DR. MACKEY: Basically I say my

expertise is primarily focussed on

characterizing mapping and physical habitat

and linking those habitats to physical

processes. And, as I said just a short while

ago, the comments in my prefiled testimony

207

refer to temperature in a general way and

were primarily focussed on seasonal changes

in temperature that occur in natural systems.

I did not consider temperature in my prefiled

testimony, nor do I have any recommendations

on the need for further study with regard to

temperature effects.

MS. DEXTER: In that case, I'll strike

my second question and just ask this last one

here. Are there ways -- And I think you may

have answered this, but I'll just let you try

to again. Are there ways to categorize

subsections of the CAWS that make more sense

to you than the categories proposed by IEPA?

DR. MACKEY: Yes. As I've indicated

before, I think that there -- with more

detailed information such is that -- similar

to that which maybe coming out from the

habitat evaluation and improvement study.

We'll get a much better feel. And it's not

just for the habitat itself, but also for the

distribution and the pattern and

juxtaposition of that habitat. It's

important to understand that because I think

208

if you get the patterns right, I think you

have an opportunity to maybe do some things

on a more local basis or on a reach basis

that would be very effective in terms of

trying to reach some of the biological data

or biological outcomes that I think that you

folks are interested and I suspect others are

as well.

And that's the type of thing that

I think that really we need to focus on. You

get the best data that we can. And I'm not

talking about doing a study for the next 20

years. I think we can have some good data in

hand within the next year, maybe eight months

to a year from now that will allow us to move

forward in a very effective and intelligent

way. And that's what I hope to see.

MS. DEXTER: I just have one more

question, just because it occurred to me. Do

you think that habitat needs to be continuous

to be useful to fish?

DR. MACKEY: Not necessarily. And

by -- See, I would ask you what you mean by

discontinuous. Certainly the patch I nature

209

of habitat, you know, habitat -- you know,

the distribution of habitat, the pattern of

habitat is important. And it doesn't

necessarily mean that, you know, you

necessarily have a continuous sequence. This

goes back to my definition of connectivity

where I'm saying, hey, there are some limits

to this. There are time, distance

relationships, there are energy

relationships. I mean you can't expect a

fish to come out of a spawning bed and then

swim for 200 miles to get to the nearest

nursery habitat. It's just not going to

work. And there are examples, and I don't

think we need to go into it, but there are

examples in the number of the tribs where

I've worked where they've actually done the

calculations where really very much show the

upstream limits of how it could be effective

spawning habitat for certain species of fish,

primarily because of time and distance

relationships.

The Sandusky River is one of the

examples. If you want to show that stuff,

210

you can.

MR. ANDES: I would.

DR. MACKEY: You're in for it now,

guys.

MR. ANDES: We have two exhibits.

DR. MACKEY: He's been chomping at the

bit for this one.

HEARING OFFICER TIPSORD: He knows

he's falling down on his responsibility.

DR. MACKEY: Do you need to --

HEARING OFFICER TIPSORD: We've got to

beat all the records, not just the hearing

records.

DR. MACKEY: Do you want to go over

200 then?

HEARING OFFICER TIPSORD: I have been

handed a Side-Scan Sonar Mosaic of

Calumet-Sag Channel, which I will mark as

Exhibit 185 if there is no objection.

Seeing none, it's Exhibit 185.

DR. MACKEY: You should know that the

originals are in color.

MR. ANDES: My fault.

HEARING OFFICER TIPSORD: And the

211

lower Sandusky River Northwest Ohio, which

I'll mark as Exhibit 186 if there is no

objection.

Seeing none, it's Exhibit 186.

DR. MACKEY: Well, tied to this time

distance connectivity -- I'll get into these

things in a second here, but the time

distance relationships have to do with the

upstream limits of potential spawning

habitat. So we're in the process of pulling

out one of the largest dams in the great

lakes Boulder Dam, and opening up 22 more

miles of potential spawning habitat. We need

to know as to whether or not the fish are

actually going to use it and whether it

actually makes sense to do this. It turns

out the calculations suggest that it's

appropriate, but this has to do with the

whole connectivity issue.

So in answer to your question,

no, they don't necessarily have to be

continuous. What Fred has just handed out

are a little bit more extensive side-scan

data. I think you can see on the side-scan

212

sonar mosaic for the Calumet-Sag Channel,

this is basically an area, I don't know if

any of you have launched out of Howy's

Landing in Alsip boat ramp, but this is an

area that goes for about 1.2 or 1.3 miles

west from that. And you can see basically a

continuous coverage of the side-scan sonar.

And if you were to zoom in in the center of

that, you'll see where it says car. There

actually is a car on the bottom of the

Cal-Sag Channel. And for scale I've circled

a car on 294 there as well. So you can see

that we're, you know, this is like we're

probably 5,000 feet in the air when we're

looking at this system. And what I've done

is zoomed in on this one over here to the

east or on the right-hand side. This is

showing an area that was very similar to

Route 83 in a sense where you have, in this

case, the littoral zone is on the north side.

There's no hard concrete wall. You have

bedrock in the center of the channel and silt

on either side. Again, you're looking at

fairly large blocks again. So this shows you

213

again that this is laterally continuous for

quite a way. If you move for a little bit to

the west here, what you find is that the

character of the channel changes. Again, on

north side you have these large armor stone

rock slabs and blocks, but in the middle the

entire channel is still mud. So what we have

just done over a distance of perhaps a couple

tenths of a mile is transitioned from an area

where bedrock is actually exposed on the

channel bottom, and then I think the bedrock

actually takes a bit of a dive here, they

actually dug it a little bit deeper, and now

it's 100 percent silt. And this extends for

many miles until you get to within about

three miles of Route 83 where bedrock starts

coming back up again. And what I'm trying to

illustrate here is that if you have two

sampling points and if you look at the Cicero

bridge site, the two sampling points, there's

one just to right here or to the east, and

then over to the far left they both show

bedrock. And you would have completely

missed this stretch here which is almost 100

214

percent silt the bottom with no bedrock. So

there is a distinct difference in the

habitat -- the instream habitat and substrate

characteristics here which are not captured

because you have such a wide sample spacing.

The other thing I want to show is

on the Lower Sandusky River plot, this river

actually flows north into lake Erie into

Sandusky Bay and this is the lower reaches of

the river. The Ballville Dam is probably

another twelve river miles upstream from

here, and this is some work I've done with

the Ohio State University side-scan sonar.

This is a natural system. So what I want to

do with you just for a few seconds is to just

take a look at -- look at the structure and

what you see in the Cal-Sag and then look at

the different all the different patterns and

shapes and things that you see in the natural

system. This is the compare and contrast

between the natural and the CAWS and -- the

natural and the artificial systems. And you

can certainly see that it's a sinuous

meandering system. In this case it's

215

approaching Lake Erie water levels. So you

have some large shallow riverine embayments

which are great spawning habitats and great

nursery habitat. But at the areas that I've

highlighted, let's say the one to the left or

the center of the Lower Sandusky River that

sort of blow-up there, what you're seeing is

that these channels, because this channel is

created by the flow of the river, this is not

artificially dug or channelized. That there

is an internal structure to the river where

it's -- you have shallow water areas, and

then as you head towards the outside of the

bank and the flow is from the lower left to

the upper right in the system, the -- it

actually scours out a deeper pool, and in

there you have a range of different substrate

materials. You have sand, you have sand and

gravel, you have cobbles. You have exposed

cohesive clays which are the old lake bed

deposits. And you can see some of that sort

of lines and actually the bedding planes

there. And you also have lots of woody

debris here, too. There are trees and stumps

216

and logs, and there's some areas where these

materials preferentially accumulate. And

that's a function of the hydraulics of flow.

The point being is that this is the type of

thing that gives you incredible diversity in

terms of habitat. This is not present in the

CAWS for the most part. Now, the North Shore

Channel and a few other areas approaches

this. But this is what the natural system

should look like. And this is what -- This

is how you get aquatic diversity. It's

because of the habitat diversity. And these

patterns of the different types of substrates

and structures are connected together in a

pattern which organisms can use. They can go

to deep areas to rest, they can come out and

go to shallower water areas and feed or

spawn, and then they can move back and it's

connectivity of the different types of areas.

And that's the type of thing I'm not sure

you'll ever be able to mimic that type of

thing in the CAWS. So I think we have some

severe limitations there. But I wanted to

illustrate this is an important difference

217

between the natural system and an artificial

system which we have in the CAWS.

Same sort of patterns here on the

right-hand side, the sort of the blow-up

there. What's interesting there is that

there's woody debris, but they've also --

this an area where they've put in this

armored shoreline docks, large limestone

blocks, very similar to the limestone that we

have here or drop along the shoreline. And

you can see some of that extending down into

the river channel. Again, similar types of

habitat characteristics, not what I would

consider to be ideal spawning habitat, but

it's good predator habitat. And I know that

in this reach here there's really good

fishing.

So this is just a compare and

contrast and shows you what you can do.

Thank you.

MS. DEXTER: I'm done.

HEARING OFFICER TIPSORD: Anything

further for Dr. Mackey?

Let's take a ten-minute break

218

and we'll come back with Ms. Wasik.

(Short break taken.)

HEARING OFFICER TIPSORD: I think

we're ready to go back on the record. Could

we have Ms. Wasik sworn in.

(Witness sworn.)

HEARING OFFICER TIPSORD: And Mr.

Andes and I talked at the break. And rather

than resubmit Miss Wasik's testimony in the

form of hard copy since it's so large with

all the attachments, he's going to provide us

with a CD-ROM. If there's no objection, we

will mark the CD-ROM as Exhibit 187.

Seeing none, it's Exhibit 187.

And I understand Miss Wasik is going to

clarify some --

MR. ANDES: There are a couple of

points that were raised in the questioning of

Dr. Mackey that I think Miss Wasik will

provide some helpful information on. One of

them was as to the IBI scores and some errors

and corrections, and why don't you take that

one.

MS. WASIK: In terms of the mistakes

219

in calculating the IBI on Page 4-17 of the

UAA report, which I believe is Attachment B

to EPA's testimony, there's a Table 4-11 and

at the very bottom row it says fish numbers,

and it says that five points were given if

there were less than 200 fish caught and one

point was given if there was greater than 450

fish caught. Those were swapped. It should

be the opposite, because the more fish you

get the higher score should be reflected.

And then in Footnote C it says

excludes tolerant species. Special scoring

procedures are used when relative numbers are

less than 200 per .3 kilometers. And that

should read 200 per 1.0 kilometer, because

that is the nonwadable IBI. The .3 would be

appropriate for the wadable IBI. So that's

why we believe there are incorrect

calculations of the IBI.

MR. ANDES: And then in terms of the

comparison Dr. Mackey was making of the Use A

Water Quality Standards to the general use

standards, if you can compare those.

MS. WASIK: Dr. Mackey basically said

220

that the Aquatic Life Use A CAWS proposed

standards for DO were essentially the same as

the general use standards. The 5.0 minimum

during March through July is, indeed, the

same; during August through February there's

a 3.5 minimum and a 4.0 mean of minimums.

And then the difference is that in the

general use dissolved oxygen standards,

there's a 6.0 mean of means for a seven-day

mean of means, and there's also a 5.5 daily

mean averaged over 30 days.

MR. ANDES: And that's in the general

use standards?

MS. WASIK: Right. So that's the

difference. But then on Page 59 of the

IEPA's statement of reasons, it does state

that, however, Illinois EPA does not propose

these two chronic standards, meaning the

seven-day mean of means and the 5.5 daily

mean averaged over 30 days because this level

of protection is already provided by the

other applicable standards. Specifically for

early life stages, if dissolved oxygen

concentrations remain at all times above the

221

proposed acute standard of 5.0 milligrams per

liter, it is mathematically impossible for a

daily mean averaged over seven days to be

less than 5.0 milligrams per liter.

Similarly for other life stages, if seven-day

averages of daily minimum remain above the

proposed 4.0 milligrams per liter standard,

it is unnecessarily redundant to require that

daily means averaged over seven days remain

less than 4.0 milligrams per liter. So I

interpret that to mean that they actually

are, as Dr. Mackey said, essentially the

same.

MR. ANDES: Thank you.

MS. DEXTER: Could I just ask one

question to clarify. This is -- You just

compared CAWS Use A waters to the general use

waters. It doesn't apply to Use B?

MS. WASIK: Yes.

MS. DEXTER: Thank you.

HEARING OFFICER TIPSORD: With that I

think we're ready for the IEPA.

MS. WILLIAMS: I'd like to ask a

similar follow-up at this point.

222

HEARING OFFICER TIPSORD: Absolutely.

MS. WILLIAMS: Do you think the

general use standards are more stringent by

including the seven-day mean and the 30-day

mean of daily means?

MS. WASIK: My understanding based on

Page 59 is that they are the same because it

would be mathematically impossible to

actually violate one of the standards without

violating the chronic standard. I think

they're saying they're redundant. I'm just

trying to interpret what was in the statement

of reasons, but.

MS. WILLIAMS: Right.

MS. WASIK: But I think they're in

that way essentially the same.

MS. WILLIAMS: I think -- I don't want

to misparaphrase Dr. Mackey, but would you

agree with his testimony regarding if one of

the water quality standards is similar or

even the same as a general use standard that

that automatically means the designated use

must be the same as the general use

designated use?

223

MS. WASIK: I think the idea is that

because the aquatic life use is admittedly

not meeting or able to meet the Clean Water

Act goals that it should not have a general

use water quality standard that's reflective

of an aquatic life use that is meeting the

Clean Water Act goals.

MS. WILLIAMS: Do you agree in some

cases it would be possible for two different

aquatic life uses to require the same numeric

criteria to be protected?

MS. WASIK: I'm not sure why that

would be the case.

MS. WILLIAMS: So in every case when

you have a different tier of designated uses,

you would always have a different numeric

standard to go with each one?

MS. WASIK: Well, there could be other

parameters that are affecting the achievement

of aquatic life use. But in general --

MS. WILLIAMS: I don't think I'm

talking about whether the use is attained or

not. Just in terms of adopting standards

necessary to protect the use. Would you

224

always have to have a different standard for

each parameter for each use?

MS. WASIK: I couldn't say in every

case if that would be impossible, but I would

think with the CAWS, strictly for the CAWS, I

believe they should have different standards

than the general use standards considering

they're very altered in state.

MS. WILLIAMS: For every parameter? I

know you're not saying speaking for every

waterway, but for every numeric criteria,

would you suggest that they would have to

be --

MS. WASIK: No, not necessarily.

HEARING OFFICER TIPSORD: Ms. Wasik,

you need to be sure to let her finish her

question before you answer.

MS. WASIK: Thank you.

MS. WILLIAMS: I'm sure I'll interrupt

her at some point, so it will be a wash.

HEARING OFFICER TIPSORD: And I will

point it out, but.

MR. ANDES: If I can follow up on

that. When we're talking about standards, is

225

specifically designed to protect early life

stages. I assume you want to make sure there

were actually early life stages to protect?

MS. WASIK: Right, yes.

MS. WILLIAMS: Okay. Why don't we

start with the prefiled questions. And just

to be clear for the record and folks

following along, on Page 34, the questions

for Miss Wasik begin first with the set of

questions on a different piece of her

testimony. So I'll start with the questions

that say sediment and macroinvertebrate

testimony.

Question 1: On Page 1 you state

that, quote, "Twenty-eight of the stations

are in the CAWS, whereas the other stations

are located in the general use shallow draft

waterways," unquote.

Based on Attachments 1 and 2,

there appear to be only 26 stations within

the CAWS reaches that are part of the

rulemaking. Can you -- The question asks

could you identify which 28 stations are in

the CAWS. I think maybe if you could help us

226

identify which two --

MS. WASIK: Right. There are 26

stations that we monitor that are in the

CAWS. I had included Ashland on the Little

Calumet River South which is not part of the

rulemaking, and I think I had included Wolf

Lake which actually is not part of the CAWS

as defined by IEPA.

MS. WILLIAMS: When you say I've

included them, can you explain where you've

included them?

MS. WASIK: Just in that count of the

26. I don't think I listed them out in my

testimony, although I can, if you'd like me

to.

MS. WILLIAMS: No, no, no.

MS. WASIK: They are in, as you said,

in the map attachment.

MS. WILLIAMS: Okay. So they're on

the maps. But did you include the data in

the reports?

MS. WASIK: Yes. The Attachments 1

and 2 are reports for all of our ambient

stations, so they actually include all 59 of

227

our ambient stations; 26 of which are in the

CAWS.

MS. WILLIAMS: And then Attachment 3

is a map that lists various stations, I

think.

MS. WASIK: Yes. That's the

monitoring map.

MS. WILLIAMS: And that's where

there's 28 identified but only 26 are

technically in the CAWS; is that correct?

And if I'm not correct, do not hesitate to

tell me no.

MS. WASIK: Actually, that map, I'm

trying to think, might include all of our

ambient stations. So you'd have to go

through yourself and determine which ones

were at the waterways that are part of the

rule-making. But in the second part of your

first question I can clarify which other

parts of our -- of the waterways aren't

included.

MS. WILLIAMS: I guess could you just

tell me from this map what numbers represent

this Wolf Lake and the Little Calumet South.

228

MR. ANDES: Are you talking about

Figure 1?

MS. WASIK: It's Attachment 3. I'm

just wondering are there -- Does that have

the general use waterways on it as well?

MR. ESSIG: Yes, it does.

MS. WASIK: Okay. So I can read

through here and pick out the ones that are

in the CAWS.

MS. WILLIAMS: No, no, no. I would

just like to know, to be sure that I can

identify, because I'm assuming these two are

close, right, Wolf Lake?

MS. WASIK: Okay. Wolf Lake would be

No. 50 and then the Little Calumet at Ashland

would be 57. So that's in the more shallow

portion of the Little Calumet. That's not

part of this rulemaking.

MS. WILLIAMS: Thank you. So I'm

assuming then the answer to -- I think you've

sort of already answered to Question No. 2,

but are there other waterways in the

Districts's ambient water quality monitoring

network that are not part of this rulemaking?

229

MS. WASIK: Yes. There are -- the

shallow portion of the north branch Chicago

River System including the Skokie River, the

middle and west forks of the north branch

Chicago River and also the shallow portion of

the north branch Chicago River upstream of

the confluence with the North Shore Channel.

Also in the Calumet River system, Thorn reek,

and the southern tributary of the Little

Calumet River were not included in the

rulemaking.

MS. WILLIAMS: Question 3: During

biological collections, physical habitat is

assessed at -- I'm sorry. This is a quote

from Page 2 of your testimony. "Physical

habitat is assessed at four locations at each

sampling station: At the beginning and end

of the sampling reach, at the side and center

of the waterway," unquote.

How long are the sampling

reaches?

MS. WASIK: We have 400 meter sampling

reaches.

MS. WILLIAMS: And which side of the

230

waterway is evaluated?

MS. WASIK: The side of the waterway

that's evaluated is whichever side the

Hester-Dendy sampler is located. This is --

The side on which the Hester-Dendy is

installed is based on basically where a cable

can be easily fastened to a tree or some

other fixed object on the shore and where

there's least likely a chance of vandalism.

MS. WILLIAMS: Why don't you try to

reach both sides of the reach?

MS. WASIK: We evaluate the ponars and

the Hester Dendys from one side, because it's

an acceptable procedure to get samples from

the same place. And we don't need both

sides, because the side ponar and

Hester-Dendy are representing a lower flow

area as opposed to the center which would be

a high flow area. And we expect both sides

in the lower flow areas to be similar. U.S.

EPA 2006, the document that I referred to in

my testimony, it's called Concepts and

Approaches For the Bioassessment of

Nonwadable Streams and Rivers. That document

231

says that Hester-Dendy colonization can

differ based on whether it's in a high or low

flow area of the waterway. So that is why we

look at one Hester-Dendy in each.

HEARING OFFICER TIPSORD: May I ask a

follow-up? You said it was an approved

method for placing them on the side. Is that

approved by U.S. EPA or approved scientific

standard?

MS. WASIK: Well, in general when

you're -- for monitoring you want to collect

your samples from I think it's as proximate a

location as possible. And I believe this is

in the 2006 document that I mentioned.

MS. WILLIAMS: Do you know whether

this U.S. EPA 2006 is a guidance document or

an approved method as --

MS. WASIK: I guess not technically a

guidance document. It's called Concepts and

Approaches. It's an EPA report, so I suppose

it's not necessarily called an approved

method.

MR. ANDES: We can provide a copy or

at least a link.

232

HEARING OFFICER TIPSORD: Thank you

very much.

MS. WILLIAMS: And do you consider

four locations on a site to be representative

of the sampling range?

MS. WASIK: Not necessarily, but in

many of the channelized waterways of the CAWS

I don't think that habitat varies too much

necessarily in a 400 meter stretch, as

Dr. Mackey has previously testified.

However, I want to point out that we did

evaluate habitat at two locations at each of

our 26 ambient locations in the CAWS, so that

would be a total of 52 locations. So that is

still quite a bit more than the 23 locations

that were evaluated by Ed Rankin in the

Attachment R because there are -- for the

entire 78 miles of the CAWS this is one of

the main reasons that we initiated a habitat

RFP for the CAWS was because we wanted to get

a more complete picture of the habitat at

smaller increments.

MS. WILLIAMS: When did you decide

this would be necessary?

233

MS. WASIK: There were inhouse

discussions regarding habitat RFP after the

UAA report came out and after the initial

IEPA draft proposal came out in January of

2007, is it? So we had been talking about it

early 2007. And, in fact, it does take a

while to initiate an RFP, but I think even

late in 2006 there were discussions about

that.

MS. WILLIAMS: Do you recall if this

was ever raised by the District either in any

of the stakeholder meetings or in comments on

the draft proposal that more detailed

habitat --

MS. WASIK: I wasn't at any of the

earlier stakeholder meetings, so I'm sorry I

don't know.

MS. WILLIAMS: Do you know who would

know?

MS. WASIK: I think Mr. Lanyon

attended those meetings, but I think that

they're on record, the minutes from the

meetings.

HEARING OFFICER TIPSORD: Excuse me,

234

Miss Williams if I may. Just to back up for

a little bit for the lay people out there.

RFP is request for proposal?

MS. WASIK: Yes.

MS. WILLIAMS: Mr. Lanyon, I believe,

is not being presented by the District as an

aquatic life use witness.

MS. WASIK: Right.

MS. WILLIAMS: So do you know if there

are any other aquatic life use witnesses for

the District that I could ask that question

of?

MS. WASIK: That could say whether or

not it was brought up at the stakeholder

meetings?

MS. WILLIAMS: Correct.

MR. ANDES: I would say probably

Dr. Grenada who's going to summarize the

aquatic testimony for the District.

MS. WILLIAMS: That sounds good.

MS. WASIK: I don't --

MR. ANDES: I'm not sure why it's

relevant, but.

MS. WASIK: I'm not sure how many

235

stakeholder meetings were actually, if any,

actually took place between January at the

time the proposed draft came out and October

when the final draft came out.

MS. WILLIAMS: I don't think that's

what I'm asking. I'm just trying to

understand, and I think it's better that I

ask Mr. Grenada why the first we're hearing

of a need for more habitat studies or any

habitat index, in fact, actually, is with

this testimony submitted by the District this

summer.

MR. ANDES: Doesn't the Agency know

what was said at its own meetings?

MS. WILLIAMS: I'm not sure if you

heard what I just asked then. I just -- Did

you hear what I just clarified for her?

MR. ANDES: I'm sorry. I didn't hear

the whole thing. Can you repeat what was

said?

HEARING OFFICER TIPSORD: I think the

issue is there is some question as to whether

or not this was raised. The Agency doesn't

believe it was necessarily raised.

236

MS. WASIK: I would only say that the

discussions to have more habitat were raised

after this January 2007 proposal, and I don't

know that there were opportunities in terms

of stakeholder meetings after that point to

raise it.

MS. WILLIAMS: Okay. So you're saying

now that it -- because I thought what you

said was that the internal meetings began

after the draft UAA came out. So I was

thinking you were referring to Attachment B.

So there was quite a bit of time between

Attachment B being developed and the January

2007 --

MS. WASIK: I can't remember the exact

date in which the draft UAA came out.

MS. WILLIAMS: Okay. We can move on

to Question --

MR. ANDES: When did that come out?

I'm sorry. When did the UAA report come out?

MS. WILLIAMS: I can refer to the time

line if you want me to. I mean I'm just

going to ask Dr. Grenado.

MR. ANDES: Fine.

237

MS. WILLIAMS: That's fine with me.

Question 4: You testify on Page 2

that, quote, "A sediment evaluation is one

component of the habitat assessment process,"

unquote.

Describe the other habitat

attributes that are assessed and how this

assessment is conducted.

MS. WASIK: Again, this is described

in my Attachments 1 and 2 in the methodology

section. A team biologist also assesses the

following habitat features on a field data

sheet which is Figure 2 in those attachments.

We assess weather, channel development, water

depth, channel width, water level, manmade

structures, channelization, bank erosion,

presence of floatable materials, aquatic

vegetation, instream cover for fish, canopy

cover, immediate shore cover, riparian land

use, sediment composition, sediment color,

sediment odor, oil present in sediment,

embeddedness in the sediment, sinuosity, and

the depth of fines.

MS. WILLIAMS: Question five: On Page

238

2 you mention that --

HEARING OFFICER TIPSORD: Excuse me.

I'm sorry, Miss Williams. Before you go

ahead, fines is a term that I know is defined

and was defined in Dr. Mackey's written

testimony, but I think it's the first time

it's been used in the testimony today. So if

we could -- could you explain what fines is,

since it's not the normal --

MS. WASIK: Sure. That would be the

depth of the fine sediment that's deposited

on the river bed. We measure it with a one

inch diameter rod, telescoping rod, to

basically push it into the sediment and see

how far it goes before you get to the --

HEARING OFFICER TIPSORD: Like I said,

I know it was defined in the written

testimony, but it is a word that will jump

out when we read the transcript. Sorry,

Miss Williams. Please go ahead.

MS. WILLIAMS: So the list of habitat

attributes that are assessed, are they

assessed at four separate locations at the

site?

239

MS. WASIK: Right. Yes.

MS. WILLIAMS: And just to finish the

thought, what are those?

MS. WASIK: Four locations?

MS. WILLIAMS: Yes.

MS. WASIK: At the beginning of the

sampling reach in the center and the side,

and at the end of the sampling reach at the

center and the side.

MR. ANDES: So two at the beginning

and two at the end.

MS. WILLIAMS: Thank you. On Page 2

you mention that fine grade sediment

increases the probability of contaminants

absorption and desorption, thus silt and sand

generally support tolerant organisms.

Other than the possibility of

contamination, are there other reasons why

tolerant organisms predominate in silt and

sand?

MS. WASIK: Yes. Homogenous sediments

like the ones present in the CAWS are

correlated with lower species richness,

irrespective of contamination. Fine

240

sediments are not preferred habitat, nor do

they support several varieties of benthic

invertebrates because their food requirements

are not met. Abundant availability of

bacteria in the sediment provides food for

the more tolerant organisms that are deposit

feeders like the oligochaete worms. There's

little space for dissolved oxygen in the

interstitial spaces of silt. So both the

physical characteristics and the

contamination of sediment are separate

stressors in the CAWS.

MS. WILLIAMS: So you would agree that

tolerant organisms tend to predominate in

uncontaminated silt and sand?

MS. WASIK: Yes, in general.

MS. WILLIAMS: Question 6: On Page 3

of your sediment testimony it states that,

quote, "In the absence of sediment toxicity

data, the CAWS UAA report employed sediment

screening levels from McDonald et al., 2000,

in order to identify potential problem areas

and constituents."

Subpart A, do you agree that

241

another sediment quality guideline developed

by Morgan was also used?

MS. WASIK: Yes. Morgan's guideline

was also referenced in in the UAA report.

Long and Morgan was based on literature in

the marine environment, I believe, from

sampling stations from NOAA, the National

Oceanic and Atmospheric Administration.

McDonald was a more recent paper. I think

it's more widely recognized especially for

fresh water.

MS. WILLIAMS: Subpart B, it says was

the use of these guidelines agreed to by the

members of the CAWS UAA work group?

MS. WASIK: Again, I'll have to say I

wasn't a member of the work group, so I'm not

sure.

MS. WILLIAMS: Do you know if other

possible impacts to aquatic life, such as

water quality and habitat, were considered in

the development of the threshold effects

concentrations or TEC and probable effects

concentrations or PEC or was it assumed that

degraded biological conditions for CAWS

242

exclusively by sediment contamination?

MS. WASIK: My understanding of the

McDonald publication is that TECs and PECs

were based on the consensus of published

numerical SQGs or sediment quality

guidelines. These sediment quality

guidelines appeared to be limited to

approaches described by sediment chemical

contamination. I think this is why the

author suggests that these screening tools

should be used in conjunction with other

tools and tests.

MS. WILLIAMS: Subpart D: McDonald,

et al., 2000 defined TEC as threshold effects

concentration below which adverse effects are

not expected to occur. And PEC as probable

effects concentration above which adverse

effects are expected to occur. Would you

agree that potential biological effects in

sediments with contaminant concentrations

between the TEC and PEC are uncertain.

MR. ANDES: Before we answer that, I

want to introduce a copy of that particular

document, the McDonald paper.

243

HEARING OFFICER TIPSORD: If there is

no objection, we'll mark Development and

Evaluation and Consensus-Based Sediment

Quality Guidelines For Fresh Water Ecosystems

by D.D. McDonald, C.G. Ingersoll, T.A.

Berger, authors, published January 2000 as

Exhibit No. 188 if there is no objection.

Seeing none, it's Exhibit 188.

MS. WASIK: Well, I would say it that

these TEC and PEC thresholds deal in

probabilities. So if the concentration of a

contaminants is greater than the PEC then

sediment is presumably or probably toxic;

whereas concentration, if it's above the TEC,

they're possibly toxic. This is how the IEPA

contractor interpreted the McDonald paper on

Page 4-11 of the UAA report, Attachment B.

And Figure 4-4 of that report indicates that

if the concentration of a contaminants is

above the TEC then it is possibly toxic. And

if it is above the PEC it's presumed toxic.

And my testimony I just used the exact

wording that I found in this UAA report in

order to be consistent. And to read from

244

Exhibit 188, the McDonald paper, they

actually say that -- This is on Page 21 in

the second column, the PECs were intended to

identify contaminants concentrations above

which harmful effects on sediment dwelling

organisms were expected to occur frequently.

So the word frequently there is important

because if chemical contaminants

concentration is less than the PEC, there are

harmful effects. They just aren't expected

frequently.

MR. ANDES: And the word frequent was

not in the question as prefiled by the

Agency, am I right?

MS. WASIK: Yes.

MS. WILLIAMS: Can you explain what's

meant by possibly toxic?

MS. WASIK: I think, again, dealing

with probabilities, if possibly toxic, there,

again, are some harmful effects expected, but

it's not expected to occur frequently. So

it's less frequent than the -- above the PECs

where it's considered presumed toxic, but it

still occurs. And I think the quote kind of

245

sums that up. It's -- They're expected to

occur, but possibly not frequently. And,

again, the reason I use the words possibly

and presumed toxic are because they were in

the UAA report. So I was just trying to be

consistent with the IEPA contractor.

MS. WILLIAMS: Can you send us back to

the page you're reading from again?

MS. WASIK: Sure. In the UAA report

it was --

MS. WILLIAMS: I'm sorry. In the

McDonald.

MS. WASIK: Yeah. That's Page 21.

There's pages on the top. That's Page 21.

There's also pages on the bottom. That would

be Page 9800 on the bottom.

MS. WILLIAMS: Question 7: You

testify on Page 4 of your prefiled testimony

that, quote, "Hester-Dendy samples tend to

indicate benthic invertebrate taxa that might

be present at a given location if there were

habitat available."

Subpart A: Do Hester-Dendy

artificial substrate samples indicate taxa

246

that are present with other collection

techniques such as petite ponar grabs are

inadequate to sample substrates such as

coarse gravel, cobble, bolder, or woody

debris at a given location?

MS. WASIK: No. They indicate

organisms present in the drift that may not

be able to survive in the sediments due to

the wide spread homogenous silt sediments or

contamination possibly.

MS. WILLIAMS: Do you agree that

petite ponar grabs are more selective of

finer grain substrate such as silt, sand, and

fine gravel because larger material can

interfere with complete jaw closure of the

ponar?

MS. WASIK: Yes. And the reason we

use ponar samples is because I think they're

especially appropriate for a system like the

CAWS, because cobble and woody debris are

more rare than in a natural system.

MS. WILLIAMS: I mean I'm trying to

understand, I guess, if the CAWS was a more

natural system what would you do differently

247

than you did here?

MS. WASIK: Well, I think that our

sampling methods for benthic invertebrates

being ponars and Hester Dendys are perfectly

appropriate given that 2006 document because

they are deep draft, you couldn't really use

a kick net or anything like that that you

might use in a wadable stream. So I think

they are the most appropriate sampling

techniques and possibly the only appropriate

sampling techniques for the system.

MS. WILLIAMS: But those methods would

also be appropriate in a general use water as

well, right? I mean do you -- I guess maybe

I should ask it this way. Do you vary your

sampling method for the areas in the network

that are not part of this rulemaking?

MS. WASIK: We actually do not, no.

We also do ponars -- There's a lot of

siltation in those waterways as well, but we

do ponars and Hester-Dendys in those as well.

MS. DEXTER: Is there a limit on the

ponar's ability to catch the finest sediments

that sit on the top of the -- that would be

248

on the top?

MS. WASIK: I suppose some of the fine

materials may fall out of the jaw of the

ponar grab sample. But in general I think it

would be the best way to collect those kind

of sediments.

MS. DEXTER: Thanks.

MS. WILLIAMS: Is it your testimony

that Hester-Dendy sampling in the CAWS

attract macroinvertebrates from outside the

CAWS?

MS. WASIK: No, not at all.

Hester-Dendys, they provide an artificial

habitat and that they represent drift

organisms.

MS. WILLIAMS: Can you discuss for us

nonbug people here, can you just explain

drift organisms. I don't know that that's a

term that's come up.

MS. WASIK: So organisms that are

drifting in the water column could colonize

an artificial substrate, but would be

possibly unable to live in the fine sediments

at the bottom which is shown in our

249

comparison of ponar samples with the

Hester-Dendy samples.

MS. WILLIAMS: Do you believe the

Hester-Dendy substrates reflect the organisms

that would be found on gravel, cobble, or

woody debris substrates?

MS. WASIK: They reflect organisms

that might be able to survive in these

waterways were there appropriate habitat for

them and heterogeneous substrates.

MS. WILLIAMS: But they are surviving

in these waterways, aren't they?

MS. WASIK: Right. They would be able

to survive on the actual river bottom without

an artificial substrate if there were habitat

present for them to colonize in.

MR. ANDES: We can, to help -- I'm

sorry. To help people understand what we're

talking about, we have a picture of a

Hester-Dendy sampler which we thought might

be useful.

MS. WILLIAMS: I think he's padding

the exhibit numbers.

MR. ANDES: This is from the 2006

250

document EPA document, Concepts and

Approaches For the Bioassessment of

Nonwadable Streams and Rivers.

HEARING OFFICER TIPSORD: Oh, and it's

color.

MR. ANDES: That was my home printer.

HEARING OFFICER TIPSORD: If there's

no objection, we'll mark this picture as

Exhibit 189.

Seeing none, it's Exhibit 189.

MS. WASIK: So if you do look at that

U.S. EPA document on Page 6-6 of the benthic

invertebrate chapter, one of the advantages

mentioned for these Hester-Dendy or

artificial substrate samplers is that it can

be especially effective in reflecting water

quality as a result of the standardized

habitat they provide. So you're basically

standardizing the habitat and putting

something in there they can colonize when

there may not be actually any kind of habitat

that they can colonize in the system.

MS. WILLIAMS: Does it say that part

in there where it may not be --

251

MS. WASIK: I'm sorry. I ended the

quote after the standardized habitat they

provide.

MS. WILLIAMS: Okay. Do you believe

the sample of macroinvertebrates collected

only from fine bottom sediment provides

useful indication of overall biological

condition in the stream?

MS. WASIK: A sample from fine bottom

sediments is useful in combination with other

information and other collection techniques

which is why we also collect the Hester-Dendy

samples. Samples from the fine bottom

sediments, which are pretty ubiquitous in the

CAWS, are a good indicator sediment quality.

MS. WILLIAMS: Do you know of any

macroinvertebrate indices that focus solely

on samples from fine bottom sediments in

streams?

MS. WASIK: No. I don't know of an

index that focusses only on the fine bottom

sediments, but I also don't know of a

macroinvertebrate index that's created

specifically for a system like the CAWS.

252

MS. WILLIAMS: So are you saying if

there was an MBI specifically for the CAWS

that it would focus on only fine bottom

sediments?

MS. WASIK: Not necessarily. But I'm

just saying that -- I don't know of an index

just for fine bottom sediments, and I don't

know of an index for waterways such as CAWS.

MS. WILLIAMS: I mean I think this

question is getting at do you think it would

be appropriate in any water body, natural or

the CAWS, to only look at macroinvertebrate

samples for fine bottom sediments?

MS. WASIK: Well, we don't do that,

but --

MS. WILLIAMS: Is there a reason that

we don't do that?

MS. WASIK: We don't only look at fine

bottom sediments. We also look at

Hester-Dendys. So I don't know that it's

relevant to our sampling program, but I think

it's part of the picture that you would look

at, and it is certainly the adequate sampling

technique for the CAWS because silts is

253

mostly what we see there.

MS. WILLIAMS: We would look at

both -- we would want to look at both

Hester-Dendys and the bottom sediments in any

system, correct?

MR. ANDES: You mean Hester-Dendy and

the ponar samples?

MS. WILLIAMS: Correct.

MS. WASIK: Yes.

MS. WILLIAMS: Okay. Question 8: You

indicate on Page 4 that, "Sand and silt

dominated sediment throughout the North Shore

Channel and the depth of fines measured

greater than four feet at two stations."

Can you identify these two

stations?

MS. WASIK: The two stations that had

a depth of fines greater than four feet were

Oakton at the end center location and Touhy

at the end center and beginning center

locations.

MS. WILLIAMS: Are these stations

located in the upper or lower North Shore

Channel?

254

MS. WASIK: Where do you draw the line

between the upper and lower?

MS. WILLIAMS: The North Side Plant.

MS. WASIK: Oakton is above north side

Water Reclamation Plant and Touhy is below

it.

MS. WILLIAMS: Question 9: When you

indicate on Page 4 that, quote, "Toxicity

results show significantly lethality from

exposure to North Shore Channel sediments

from one station," unquote.

Are you referring to Foster

Avenue?

MS. WASIK: Yes.

MS. WILLIAMS: Subpart A: Is it true

that there were two samples from this site,

and only one sample showed a significant

difference in persistent survival compared to

only one of the two control samples?

MS. WASIK: Yes. Again, we collect a

side and a center sample from each station.

Only the side sediment sample showed

significant toxicity; flow was highest in the

center of the waterways and lower along the

255

sides often causing the fine sediment

particles to deposit on the sides. So

there's -- It stands to reason that the

toxicity would be shown on the side sample.

MS. WILLIAMS: Is it also true that

the other sample from this site had a

survival of 94 percent?

MS. WASIK: Yes. I was only

highlighting the areas of concern in my

testimony. But, actually, if I could go back

to your first question, I also notice that

you asked -- compared to only one of the two

control samples. And you get into this in

Question 26. But I just wanted to clarify

now that there's technically only one

official control, and that one is called the

West Bear Skin Lake. The other control is an

inhouse control run by our contractor. But I

can explain that later when you get to --

MS. WILLIAMS: I think if it makes

more sense now, that's fine. I think

Question 26 asks why was the number of

control samples for toxicity test reduced

from two controls to only one?

256

MS. WASIK: During 2002, our

contractor happened to be running the, what

was called the NC-Sand control which is acid

washed sand, which they run every month for

QC at their lab alongside with the tests that

they're running. Technically the West Bear

Skin, also referred to as WBS in some of our

toxicity reports, that control is the one

that was set up specifically for our

experiment and that is the one that should be

used in -- to determine significant

differences. The contractor said that the

negative control should be a field sample

like the West Bear Skin as opposed to acid

wash sand that you have to buy from a vendor.

MS. WILLIAMS: I don't think I

understood that. I'm sorry. Could you

simplify it for me a little bit?

MS. WASIK: Basically they were only

ever supposed to or required by the protocol

to run one sample which is called the West

Bear Skin sample. That's from a lake in

Minnesota. So that is the control that they

are comfortable comparing with our samples.

257

They also had an inhouse for their own QC for

all of their samples because they're running

other samples from other -- with other

contracts. So they run this NC-Sand control

which is an acid washed sand, and that wasn't

meant to be specifically compared to our

samples.

MS. WILLIAMS: Why? Maybe that's what

I'm missing. Why?

MS. WASIK: Because it's not a field

sample. They like to use a control that's a

field sample like the one from the lake in

Minnesota and in all of the future sediment

tox reports, that's all that there is because

they're just comparing --

MR. ANDES: So just happened in 2002,

they happened to run that acid wash sand --

MS. WASIK: With our samples, yeah.

MR. ANDES: And that didn't happen

after that?

MS. WASIK: Right.

MR. ANDES: Okay.

MS. WILLIAMS: I have to go back. I

think we left off on B.

258

MS. WASIK: I believe 9B I answered

yes. I was just highlighting areas of

concern in my testimony.

MS. WILLIAMS: Is it yes to the second

part as well? Did percent survival at the

other sites on the North Shore Channel range

from 79 percent to 96 percent?

MS. WASIK: Yes.

MS. WILLIAMS: How many different

types, and by types I mean taxa, of test

organisms were used in these toxicity tests?

MS. WASIK: The toxicity test we use

is a ten-day chironomus tentans toxicity test

with both sediment. So that's just one kind

of organism. And this is one of the tests

recommended by U.S. EPA in methods for

measuring the toxicity and bioaccumulation of

sediment associated contaminants with fresh

water invertebrates. One reason this

organism was chosen for our toxicity test is

because it's useful in assessing chemical

toxicity in the CAWS is because according to

this U.S. EPA publication, quote, larva of

c. tentans appeared to be tolerant of a wide

259

range of particle-sized conditions in

substrates. So this essay can better isolate

the chemical effects from grain size -- from

the grain size effects.

MS. WILLIAMS: Do you have an EPA

number for that publication you've referred

to?

MS. WASIK: Let me see if it's in

there. In my testimony it's referenced. Let

me see if I have it there. Okay. That is

research and development report

No. EPA-600-R-99-064.

MS. DEXTER: Could I ask a question to

clarify. You said that the test was done

with one organism. Do you mean one species?

MS. WASIK: Yes. One kind of

organism.

MS. DEXTER: Not just one?

MS. WASIK: Right.

MS. WILLIAMS: Are there -- Question D

asks, are there sources of contaminants

located upstream of the Foster Avenue Station

such as CSOs or points or dischargers?

MS. WASIK: Yes.

260

MS. WILLIAMS: Ten: When you state on

Page 4 that, "Concentrations of trace metals

in North Shore Channel sediments were

generally below the PEC, but most samples

exhibited cadmium, copper, lead, nickel, and

zinc concentrations above the TEC," end

quote.

Are these results comparable with

the North Shore Channel as presented in the

CAWS UAA Attachment B?

MS. WASIK: Yes. The results for the

North Shore Channel are consistent with what

was reported in Attachment B. However, I'd

note that their conclusions are based on a

different set of -- or a different data set

at different locations from, I believe they

maybe used one year of our data, but then it

was also based on U.S. EPA data.

MR. ANDES: But the overall

conclusions --

MS. WASIK: Are the same.

MS. WILLIAMS: Do you know which year

of your data they used?

MS. WASIK: 2002.

261

MS. WILLIAMS: And do you know why

they limited it to 2002 data?

MS. WASIK: I think that's when they

started preparing the report possibly, or I'm

not really sure.

MS. WILLIAMS: And the data -- In

Attachments 1 and 2, what are the years'

worth of data we're looking at?

MS. WASIK: Attachment 1 is 2001

through 2004 and Attachment 2 is 2005.

MS. WILLIAMS: Now, what was the

purpose of these two reports? Because I

believe their data in 2008, correct?

MS. WASIK: Right. The purpose of the

reports is to report our biological findings

and of the ambient water quality monitoring

program. And as to why they're dated 2008,

is that what you were --

MS. WILLIAMS: Right. I'm just sort

of trying to understand the schedule of

sampling compared to when the reports come

out.

MS. WASIK: We're basically running

behind. That's why they came out in 2008,

262

but normally we would try to get them out as

quickly as we could. But they, the

contractor, the IEPA contractor, contacted us

directly and got sediment data, I believe. I

don't know that they got it from the report.

MS. WILLIAMS: Okay. Question 11:

You also state on Page 4 that, quote,

"Oligochaeta was the dominant taxa collected

from the North Shore Channel," unquote.

Was this true for all sampling

sites for both petite ponar and Hester-Dendy

substrate samples?

DR. MACKEY: If you consider both

sampling methods together, the oligochaete

worms were the dominant benthic swana (ph.)

In the North Shore Channel. Oligochaete

worms dominated ponar samples but some

Hester-Dendy samples were not dominated by

oligochaete worms.

MS. WILLIAMS: What about Foster

Avenue?

MS. WASIK: Foster had a higher

percentage of turbellaria, which is a

free-living flat form, 49 percent, than

263

oligochaetes which were 32 percent in the

Hester-Dendy sample. 2005 Foster ponars

contained 98 percent oligochaete.

HEARING OFFICER TIPSORD: Could you

spell both of those.

MS. WASIK: Oligochaete is are spelled

o-l-i-g-o-c-h-a-e-t-e, and the turbellaria is

t-u-r-b-e-l-l-a-r-i-a.

HEARING OFFICER TIPSORD: Thank you.

MS. WILLIAMS: Question 12: Along the

North Branch Chicago River -- I'm sorry.

This is a quote from Page 4 of your

testimony. "Along the North Branch Chicago

River, sediments were less dominated by fine

sediments at the furthest upstream location,"

end quote.

Is this station located within

the CAWS just downstream of the confluence

with the North Shore Channel?

MS. WASIK: The furthest upstream

location along the deep portion of the north

branch would be Wilson, and it's .6 miles

downstream of the confluence with the North

Shore Channel.

264

MS. WILLIAMS: What station are you

referring to on Page 4 when you testify that,

quote, "Depth defined at this station was as

deep as greater than five feet"?

MS. WASIK: Depth of fines were five

feet or greater at our Grand Avenue Station.

MS. WILLIAMS: According to your

testimony on Page 5, quote, "Five of six

sediment samples from North Branch Chicago

River during 2005 had PAH concentrations

presumed toxic. Generally trace metal

concentrations in sediment samples were

either above the PEC or TEC screening levels

in all samples," unquote.

First, can you clarify for the

record what PAH stands for?

MS. WASIK: Poly aromatic hydrocarbon.

MS. WILLIAMS: How do these findings

compare to those reported in the CAWS UAA

Attachment B to the statement of reasons?

MS. WASIK: These results are

consistent with the UAA report Page 4-53,

although I'm -- It's not apparent to me from

the statement of reasons how exactly they

265

were used, but it is consistent with what was

reported on the UAA report.

MS. WILLIAMS: You state on Page 5

that, quote, "Toxicity results show

significantly lethality from exposure to

Diversey Parkway and Grand Avenue on the

North Branch Chicago River.

A: Is it true there were two

samples from both of these stations and that

only one sample at each site showed a

significant difference at percent survival

compared to the control?

MS. WASIK: If you're comparing it to

the West Bear Skin control, since the

contractor did tell us to ignore the acid

wash sand control, the side samples from

Grand and Diversey exhibited 13 and 49

percent survival respectively. And the

center samples from Grand and Diversey

exhibited 93 and 86 percent survival which is

compared to 96 percent in the controls. So

that was not significant. And, again, that's

somewhat expected because these are in the

side channel area. That's where we saw the

266

toxicity from the increase sediment

deposition.

MS. WILLIAMS: Did you just say that

the contractor advised you not to use the

acid wash sand control? Did I call it the

right thing, acid wash sand control?

MS. WASIK: I actually called the

contractor in response to your Question

No. 26 because I wasn't clear on why there

was the two controls, and that's when he

explained to me that we should look at the

West Bear Skin control because it was a field

sample and that would be the appropriate

comparison.

MS. WILLIAMS: So he told you that on

the phone?

MS. WASIK: Yeah, recently.

MS. WILLIAMS: Do you have your

attachments in front of you?

MS. WASIK: Some of them.

MS. WILLIAMS: I have one. I believe

it's -- Does 16 sound right? Titled --

MS. WASIK: 2003 Sediment Toxicity

Report.

267

MS. WILLIAMS: September 2003 Results

of Ten-Day Chironomus Tentans Toxicity Test?

MS. WASIK: Actually, I don't have

printed out copies of those. I have a

summary which is my attachment 14.

MS. WILLIAMS: I'm going to show you

this document and ask you to identify whether

it looks like Attachment 16 to your

testimony. Does this look correct?

MS. WASIK: Yes.

MS. WILLIAMS: Okay. Then I'd like

you to read the highlighted portion on

Page 9.

MS. WASIK: Second control set,

negative control sand was employed for the

first test set. However, after consulting

with personnel at MWRDOGC it was decided one

controlled exposure was sufficient for each

set of toxicity exposures.

So I guess all I can say is

that I recently talked to the contractor and

he said that they were only using the

negative sand control for the purposes of

their own internal QC. So I don't know. I'd

268

have to ask them about the discrepancy. But

in the U.S. EPA methodology reference that I

gave you, only one control is required for

the chironomus tentans.

MS. WILLIAMS: But you don't know for

sure whether it could have been someone at

the District that advised them not to use the

second control in the future?

MS. WASIK: In 2002 possibly. It

wouldn't have been me.

MS. WILLIAMS: Okay.

MS. WASIK: But one control is

consistent with, like I said, with the EPA.

MS. WILLIAMS: And I don't -- I don't

think I disagree with that. I'm just

questioning if you had two controls and one

was ignored, ordinarily that would not be a

valid scientific approach, would it?

MS. WASIK: To ignore one of the

controls? No. I would say none of the

survival data resulted in an instance where

toxicity -- toxicity was different from one

control but not the other. I think there was

one instance where the dry weight was

269

significantly different from one and not the

other, but there was never a conflict with

the survival data.

MS. WILLIAMS: Is it true that more

samples showed significant difference with

the West Bear Skin control than with the

NC-Sand or the sand control?

MS. WASIK: For toxicity or growth?

MS. WILLIAMS: I'm sorry. For what?

MS. WASIK: For --

MS. WILLIAMS: For survival. I'm

sorry.

MS. WASIK: For survival.

Significantly, not that I'm aware of. I

thought they were the same.

MS. WILLIAMS: So you thought the

survival was the same when compared to both

controls?

MS. WASIK: Yes. If you look at my

Attachment 14, it's a summary of the 2002

through 2007 sediment toxicity results.

MS. WILLIAMS: Okay. Go ahead.

MS. WASIK: I believe there was one

sample that has the Footnote B significantly

270

different from the negative control sand

control results. And that only occurred once

at Cicero in the Chicago Sanitary and Ship

Canal.

MS. WILLIAMS: And do you know how

significant is defined is in this context?

MS. WASIK: Well, it's a statistical

significance. So they run a statistical

test. I couldn't really describe more than

that.

MS. WILLIAMS: And then what does

Footnote A mean in this table?

MS. WASIK: Significantly different

from the West Bear Skin Lake control results.

MS. WILLIAMS: Well, I mean I can read

what it says. What does that mean? I'm

sorry. And I don't mean to be difficult. I

just don't understand.

MS. WASIK: That there's a statistical

difference between the tests that they ran,

the amount of either survival or growth in

the organisms from the West Bear Skin Lake

control than there was in the samples that we

sent them.

271

MS. WILLIAMS: Okay. And did they

determine what was the statistical difference

or did you determine?

MS. WASIK: Yes. They did that and

provided it in this report.

MS. WILLIAMS: This report -- I mean

do you mean this summary?

MS. WASIK: Not in this attachment,

but in the report that you showed me earlier.

HEARING OFFICER TIPSORD: Attachment

16.

MS. WILLIAMS: And the name of that

contractor is --

MS. WASIK: It's ASCI Corporation.

MS. WILLIAMS: But you developed

Attachment 14, this summary table?

MS. WASIK: Right. Just taking

directly what they had in their report.

HEARING OFFICER TIPSORD: Cut and

paste, not interpretation of the document?

MS. WASIK: Right.

MS. WILLIAMS: I think I left off on

Subpart B of Question 14. Is it true that

the other samples at these sites, referring

272

back to Diversey Parkway and Grand Avenue,

had survivals of 86 percent and 93 percent

with no significant difference when compared

to the control?

MS. WASIK: Yes.

MS. WILLIAMS: And was survival at

Wilson Avenue 84 percent and 93 percent with

no significant difference from the control?

MS. WASIK: Yes.

MS. WILLIAMS: Question B: When you

state on Page 5 that, quote, "Pollution

tolerant aquatic worms were the dominant

organisms collected from the deep draft

portion of the North Branch Chicago River, do

you mean that this was true for all sampling

sites, for both petite ponar and Hester-Dendy

substrate samples?

HEARING OFFICER TIPSORD: This is

Question 15.

MS. WILLIAMS: Fifteen.

MS. WASIK: Yes. Oligochaetes made up

84, 79, and 95 percent was 2001 Hester-Dendy

samples at Wilson, Diversey, and Grand Avenue

respectively. And 33, 29, and 75 percent

273

during 2005 samples. Of those six

Hester-Dendy samples, there were two in which

oligochaetes did not comprise a majority of

the sample. In the ponar samples

oligochaetes made up 88 to 99 percent of the

samples from all three stations in both years

in which we had focussed sampling on the

north branch system.

MS. WILLIAMS: What about the sites at

Diversey Parkway and Grand Avenue?

MS. WASIK: Yes. That's -- It

includes those stations.

MS. WILLIAMS: Okay. Question 16,

please indicate where in the record the data

is located to support the statement that,

quote, "Approximately 13 percent of midge

specimens collected and examined from Grand

Avenue in the North Branch Chicago River

during 2002 exhibited head capsule

deformities."

MS. WASIK: Page 3-44 of Attachment 22

entitled A Study of the Benthic

Macroinvertebrate Community in Selected

Chicago Metropolitan Area Waterways during

274

2001 and 2002 states, quote, "Chironomid head

capsule deformities were observed only in the

Hester-Dendy samples at Grand Avenue or

station 46, parentheses Table 3-41. Of the

117 midge specimens examined from Grand, 15

were 12.8 percent exhibited deformities."

MS. WILLIAMS: And what types of

deformities were found?

MS. WASIK: The contractor does not

report what kind of specific head capsule

deformities they observe in the specimen. I

believe it's common practice to count all

types of head capsule deformities together

when you're evaluating incident rates.

During 2002 no other stations in North Shore

Channel or deep draft North Branch Chicago

River exhibited head capsule deformities

besides Grand Avenue.

MR. ANDES: And give us an example of

what a head capsule deformity is.

MS. WASIK: Could I show you an

example?

MR. ANDES: Or just describe.

MR. SULSKI: Are you going to stand on

275

the chair?

MR. ANDES: Can you describe what that

means? Does it have a malformed head?

MS. WASIK: Right. It could be a jaw

deformity or other sort of mandible

deformities. There's various ones that we

have an expert to identify. And I considered

showing a photograph, but you can hardly kind

of tell what's going on unless you really

know what they're supposed to look like, so.

MS. WILLIAMS: What species exhibited

these deformities?

MS. WASIK: Let's see. The two taxa

with malformed specimens were chironomus and

dicrotendipes, d-i-c-r-o-t-e-n-d-i-p-e-s

simpsoni, s-i-m-p-s-o-n-i. Just over half of

the 19 chironomus examined from station 46 or

Grand were deformed.

MS. WILLIAMS: Do we know why this

station was unique in that respect?

MS. WASIK: No. I couldn't say.

MS. WILLIAMS: Question 17: Is the

statement on Page 5 that, quote, "Fine

sediments dominated the Chicago River bottom

276

with one to five feet depth of fines,"

unquote, based on a physical habitat analysis

of the sampling sites such as QHEI or the

analysis of the petite ponar sediment

samples?

MS. WASIK: It was based on both.

MS. WILLIAMS: What was the

predominant fine sediment: Silt, sand, fine

gravel, or other?

MS. WASIK: Well, in terms of the

first part of your question, based on

physical habitat analysis for which we take a

ponar sample, place it in a tray, and then

visually characterize the sediment as well as

probing the bottom with a telescoping rod,

during our most recent assessment in 2006,

silt made up 90 percent or more of the

sediment samples taken from the center of the

Chicago River at Wells and Lake Shore Drive.

The sides varied, mostly consisting of silt,

sludge, and zebra mussel shells.

MS. WILLIAMS: So you're relying on

2006 information in this question -- I mean

in this quote.

277

MS. WASIK: Yes. That may be true

also for 2002. I'll have to go back and

check.

MS. WILLIAMS: And then what was the

predominant fine sediment then?

MS. WASIK: Like I said, it was the

sides were varied, but it consists mostly of

silt, sludge, and zebra mussel shells.

Whereas the silt made up 90 percent or more

of the sediment samples from the center at

both Chicago River -- I mean in Chicago River

at both Wells and Lake Shore Drive station.

MS. WILLIAMS: When you state on Page

5 that, quote, "Analysis of sediments from

the Chicago River main stem sampling stations

showed presumed toxic concentrations of PAHs

and polychlorinated biphenyls or PCBs," are

these results comparable to what was reported

the CAWS UAA Attachment B?

MS. WASIK: Yes. PAH and PCBs are

listed on Page 4-53 of the UAA report as

being above presumed toxic levels. Since --

sorry. That's all.

MS. WILLIAMS: Did all eight toxicity

278

tests indicate 80 percent and 99 percent

survival with no significant difference

compared to the control?

HEARING OFFICER TIPSORD: A point of

clarification. The written question is 88

percent to 99 percent.

MS. WILLIAMS: Yes. That's correct.

I hope. 88 percent to 99 percent.

MS. WASIK: Since one of our samples

wasn't sealed properly, it was ruined during

transport to the consultant. Therefore,

there were only sediment -- seven total

sediment toxicity reports, not eight, for the

Chicago River. But the percent survival did

range from 88 to 99 percent with no

significant difference from the control.

MS. WILLIAMS: Question 19: Was it

true of both Hester-Dendy substrate and

petite ponar samples at both Lake Shore Drive

and Wells Street that, quote, "A majority of

benthic invertebrates collected from the

Chicago River were aquatic worms"?

MS. WASIK: The ponar samples from the

Chicago River constituted 98 to just over --

279

under 100 percent of the total organisms at

both stations. In the Hester-Dendy, 92

percent were oligochaetes and the Wells

sample; whereas the dominant organism in the

Lake Shore Drive Hester-Dendy sample was

gammarus fasciatus, an amphipod.

MS. WILLIAMS: Question 20 --

HEARING OFFICER TIPSORD:

Miss Williams, I don't think we're going to

get the rest of these in the next half hour,

so with that, let's close for today, give

everybody a break, and we'll start at 9:00

a.m. tomorrow morning.

MR. ANDES: One other scheduling

matter. I've been receiving e-mails from our

next round of witnesses, and it does appear

that after Dr. Dennison, our next three

Garcia, Friedman, and Nemura are all

available on the 17th and 18th of February.

So if we want to lock those dates in.

HEARING OFFICER TIPSORD: I already

asked in advance because you can always

cancel the rooms for the Thompson Center for

rooms. So if we get rooms, we'll go the 17th

280

and 18th of February. Great. Thank you.

See you all tomorrow morning.

(At which time the

hearing was continued to

December 6, 2008.)

* * * * * *

281

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF COOK )

I, LAURA MUKAHIRN, being a Certified

5 Shorthand Reporter doing business in the City of

6 Chicago, Illinois, County of Cook, certify that I

7 reported in shorthand the proceedings had at the

8 foregoing hearing of the above-entitled cause. And

9 I certify that the foregoing is a true and correct

10 transcript of all my shorthand notes so taken as

11 aforesaid and contains all the proceedings had at

12 the said meeting of the above-entitled cause.

___________________________

LAURA MUKAHIRN, CSR

CSR NO. 084-003592

282