RECE~VED
CLERK’S OFFICE
JUN 21 2004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE
OF
ILLINOIS
PoIIut~onControl Board
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO
)
R 04-25
DISSOLVED OXYGEN STANDARD
)
35 Iii. Adm. Code 302.206
)
NOTICE OF FILING
See Attached Service List
PLEASE TAKE NOTICE that on Monday,
June 21, 2004,
we filed the attached
Motion To Replace Written Testimony of James E. Garvey Instanter with the Clerk ofthe
Illinois Pollution Control Board, a copy ofwhich is herewith served upon you.
Respectfully submitted,
ILLiNOIS ASSOCIATION OF WASTEWATER
AGENCIES
BY:________
“~OneofIts Attorneys
Roy M. Harsch
Sheila H. Deely
GARDNER, CARTON
&
DOUGLAS
191 N. Wacker Drive
-
Suite 3700
Chicago, Illinois
60606-1698
(312) 569-1440
THIS FILING IS BEING SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS TO
)
R 04-25
DISSOLVED
OXYGEN STANDARD
)
35
Iii. Adm. Code
302.206
)
MOTION TO REPLACE WRITTEN TESTIMONY OF DR. JAMES E. GARVEY
INSTANTER
The Illinois Association ofWastewater Agencies (“IAWA”), by its attorneys Gardner
Carton & Douglas, moves to replace the written testimony ofDr. James E. Garvey filedon June
15, 2004. In support, IAWA states as follows:
1.
IAWA pre-filed written testimony ofits witnesses on April 19, 2004. Formatting
on page 2 of the Written Testimony ofDr. James B. Garvey was faulty and resulted in one
paragraph that was garbled.
2.
IAWA moves to replace the written testimony with the attached document.
WHEREFORE, IAWA moves the Board to replace the Written Testimony ofDr. James E.
Garvey.
Respectfully Submitted,
Orie of the Attorneys for Petit)?f~
Roy M. Harsch
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191 N. Wacker Drive
—
Suite 3700
Chicago, IL 60606
312-569-1440
• RECE~VED
CLERK’S OFFICE
JUN 2 1 2004
STATE OF ILLINOIS
PoIlut~onControl Board
RECENVED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
JUN 212004
IN THE MATTER OF:
)
0
PROPOSED AMENDMENTS TO
)
R 04-25
DISSOLVED OXYGEN STANDARD
)
35 Ill. Adm. Code 302.206
)
WRITTEN
TESTIMONY OF DR. JAMES E. GARVEY
FISHERIES AND
ILLINOIS AQUACULTURE CENTER
SOUTHERN ILLINOIS UNIVERSITY, CARBONDALE, ILLINOIS
I am Dr. James Garvey, Assistant Professor in the Fisheries and Illinois
Aquaculture Center at Southern Illinois University in Carbondale. I have been engaged
by the Illinois Association ofWastewater Agencies (IAWA), along with my colleague,
Dr. Matt Whiles, to scientifically evaluate the current State ofIllinois dissolved oxygen
standard and to provide recommendations about how the Illinois standard might be
revised and updated, if warranted by our scientific evaluation.
Both Dr. Whiles and I are broadly trained in aquatic ecology. My specialty is the
ecology of fishes, with much of my research focusing on how environmental conditions
affect fish physiology, abundance, and distribution. My Short Curriculum Vita has been
submitted as IAWA’s Exhibit
5.
Dr. Whiles, a professor in the Department ofZoology,
is an expert on the ecology ofaquatic invertebrates and theirrole in streams and lakes.
His Resume has been submitted as IAWA’s Exhibit 6. Our combined experience
qualified us to provide an objective assessment of the current state ofknowledge about
how dissolved oxygen affects aquatic organisms and to evaluate the current statewide,
one-day minimum standard of5 mg!L. We did not intensively evaluate the application of
the state standards to Lake Michigan, and IAWA has not proposed to revise that standard.
Dr. Whiles and I began our assessment by reviewing published, typically peer-reviewed
research on how dissolved oxygen affects aquatic organisms and how dissolved oxygen
varies in lakes and streams. We also reviewed the National Ambient Water Quality
Criteria Document for Dissolved Oxygen (NCD) published by the United States
Environmental Protection Agency (USEPA) in 1986, and submitted as IAWA’s Exhibit
2. We evaluated the current monitoring ofwater quality in Illinois and conferred with
Illinois EPA concerning the scientific basis for the current Illinois dissolved oxygen
standard. We then prepared a written report of our findings, which is submitted as IAWA
Exhibit 1.
In the final report, Dr. Whiles and I emphasize that using biological- and habitat-
quality criteria to evaluate suitability for aquatic life use in the surface waters ofIllinois
is ofparamount importance and should be continued to be emphasized in monitoring
programs. It is unlikely that any one water quality parameter such as dissolved oxygen
concentration will capture the capacity ofa stream or lake to support aquatic life.
Although our recommended dissolved oxygen standards are sufficiently protective of
aquatic life in Illinois, we recommend that regulators strive to maintain dissolved oxygen
concentrations well above these minima when possible. We agree with the concerns
voiced by some colleagues that the state should move toward a region-specific set of
water-quality criteria and aquatic life goals, although comprehensive regional data to
guide these decisions for Illinois are not yet available.
As the NCD suggests, dissolved oxygen concentrations in lakes and streams
fluctuate diurnally. During warm, summer months, dissolved oxygen concentrations
decline due to water’s reduced capacity to hold oxygen at elevated temperatures and the
2
high respiratory demand ofaquatic communities. A single dissolved oxygen standard
such as that in Illinois does not realistically capture these diurnal and seasonal
fluctuations. Although comprehensive surface water data are lacking for the state, many
pristine aquatic systems largely unaffected by agricultural run-off or municipal
discharges most likely experience occasional, non-lethal declines in dissolved oxygen
below the state’s current minimum of5 mg!L.
Our recommendations in the report include seasonally appropriate means and
minima that more realistically account for natural fluctuations in dissolved oxygen
concentrations, while remaining sufficiently protective ofaquatic life. These
recommendations are based largely on potential responses ofall life stages ofnative
Illinois fishes that fall in the NCD’s non-salmonid category. As with the NCD, we define
these as typically warm-water fishes, although much variation in temperature and oxygen
tolerance occurs among taxa in this group.
Research summarized in the 1986 NCD was used to set ourrecommended
dissolved oxygen standards above those concentrations expected to slightly impair
production of fishes. Research conducted since publication ofthe report generally
confirms that the seasonal standards we recommend are sufficiently protective~nffishes
and other aquatic organisms in Illinois surface waters. During spring through early
summer, most early life stages of fishes and other aquatic organisms are produced. These
early reproducing organisms are typically the most susceptible to low dissolved oxygen
concentrations and thus require the most stringent protection. Our reanalysis of data
within the NCD and our review ofthe literature led to the development ofa standard
proposed to be applicable during March 1 through June 30, which specifically protects
3
these early life stages and includes both a one-day minimum identical to the current
Illinois standard of
5
mgIL and a seven-day mean of 6 mgIL. During warmer, productive
months throughout the remainder ofthe year when species with sensitive early life stages
have largely completed reproduction, we recommend a one-dayminimum of 3.5 mgIL
and a seven-day mean minimum of4 mg/L, which is a more realistic general expectation
for Illinois surface waters than the current minimum standard of5 mgIL.
Our recommended standards are based on our current understanding ofthe short-
and long-term responses ofaquatic organisms to low dissolved oxygen. In most natural
aquatic systems, habitat use by juvenile and adult fish is largely unaffected by dissolved
oxygen until concentrations decline below 3 mg!L. Acute lethal effects on post-larval,
warm-water fishes do not occur until concentrations decline below 2 mg/L. As we note
in the report, chronic effects oflong-term exposure to low dissolved oxygen
concentrations are not well understood. See IAWA Ex. 1 at 18. Some impairment of
growth likely occurs in many warm-water species when dissolved oxygen concentrations
are chronically below 4 mg/L, which none of our recommended standards allow.
Initially, Dr. Whiles and I summarized our findings and outlined our
recommendations in a draft report that was distributed to IAWA and the Illinois
Department ofNatural Resources (IDNR). Dr. Whiles also presented our findings to a
special meeting ofIAWA this spring, where representatives from Illinois EPA (ILEPA)
and Prairie Rivers Network were present. During this time, I also distributed the draft
report to the U.S. Fish and Wildlife Service, Region 3, Carterville Fisheries Resource
Office; the U.S. Fish and Wildlife Service, Region 3, Ecological Services Sub-Office; the
IDNR, Office of Resource Conservation; the IDNR, Office ofRealty and Environmental
4
Planning, Division ofNatural Resource Review and Coordination; the Illinois Natural
History Survey/U.S. Geological Service, Long-Term Resource Monitoring Program,
Great Rivers Field Station; and the Illinois Chapter ofthe American Fisheries Society
(ILAFS). On June 10, 2004, I met with the extended Executive Committee ofthe ILAFS
to discuss the report. Questions voiced by many ofthe participants of the IAWA meeting
held this spring were answered in the final draft of the report. After circulating the draft,
I received informal comments from the IDNIR Office ofResource Conservation, which
also were addressed in the final draft. The IDNR Office ofRealty and Planning
informally found the science to support the recommended changes. During my recent
meeting with the Executive Committee ofthe ILAFS, I answered questions about the
report and the proposed changes to the current Illinois standards. I agreed with the
primary conclusion ofthe group that a set of regional standards are needed for Illinois.
The other groups have provided neither informal nor formal feedback to me to date.
A letter dated 28 May 2004 written by Ms. Beth Wentzel ofPrairie Rivers
Network to the Division ofWater Pollution Control, ILEPA raised several specific
concerns about our report. Ms. Wentzel noted that our report was not entirely consistent
with the NCD. Although the NCD recommends adopting the most conservative
standards for all early life stages offish through thirty-days post hatching whenever these
life stages occur, our report only recommends adopting these conservative standards
through June. Of the forty-eight fish taxa in Illinois that we surveyed, forty likely
complete the reproductive portion of their life cycle by the end ofJune or earlier
throughout Illinois. Given that fluctuating oxygen concentrations occur naturally in
Midwestern streams and lakes during summer, the remainder ofspecies that continue to
5
reproduce during these months must have adaptations that allow them to persist when
ambient oxygen concentrations occasionally approach our recommended summer
minimum. Hence, our report indeed departs from the NCD in that it attempts to generate
more realistic expectations for dissolved oxygen concentrations and the responses of
native aquatic life in Illinois.
Another criticism voiced by Ms. Wentzel was that we failed to address the
responses ofcool-water species such as smallmouth bass in ourrecommended criteria.
This is untrue. These species were generally grouped under our warm-water
categorization, because temperature requirements ofnon-salmonid fishes are not well-
delineated. Rather, species-specific temperature needs vary widely along a gradient from
cool to warm water among fish in the Midwest. Although cold-water salmonids can be
categorized by their high oxygen and low temperature requirements, I know ofno
specific research that identifies Midwestern cool-water fishes as having substantially
different oxygen requirements during non-reproductive periods than warm-water
counterparts. The main difference between species with cool- and warm- water
requirements appears to be their temperature-dependent growth optima and lethal
maximum temperatures, which is a separate issue regarding the interaction between
habitat quality and temperature. Interestingly, although smalimouth bass is specifically
listed in the NCD as a sensitive, cool-water fish, it has similar temperature requirements
as many conventional warm-water fishes. Further, smallmouth bass adults have a
minimum lethal dissolved oxygen limit of 1.2 mgIL (see Table I, IAWA Ex. 1), which is
well below our recommended Illinois minimum standard.
6
Ms. Wentzel noted that we omitted a thirty-day mean standard from our
recommendations, although such a long-term moving average is recommended in the
NCD. In our view, fishes and other aquatic organisms will respond at a much shorter
time scale to declining oxygen than thirty days, requiring a more frequently updated
moving average ofseven days. A thirty-day mean may erroneously miss periods of
chronically low dissolved oxygen if high concentrations occur during the remainder of
the thirty-day monitoring period.
Another argument made against our report’s validity is that it focuses primarily on
fish. Fish were selected as the regulatory focus because theywere the model in the NCD
and, as it was in 1986, most research on dissolved oxygen is available for this group.
Fish are also ofrecreational and economic importance. Although the data for other taxa
are indeed quite limited, we did address the influence of dissolved oxygen on other
organisms, specifically mussels and aquatic insects, and have found a pattern that appears
to be consistent with that for fish. As we outline in the report, species that have high
oxygen requirements tend to inhabit areas of consistently high and environmentally
predictable dissolved oxygen concentrations. In a stream, this would be a riffle habitat in
which high gaseous exchange occurs between the water and the atmosphere. In our
report, we recommend quantifying oxygen in areas and during times when dissolved
oxygen concentrations are expected to be lowest such as a stream pooi before dawn.
These locations should be more susceptible to declining oxygen than areas in which high
exchange elevates oxygen concentrations and typically harbors the most sensitive species
such as darters and mayflies.
7
We take issue with Ms. Wentzel’s supposition that our recommendations would
render Illinois’s dissolved oxygen standards the weakest in the nation. I have assessed
the standards forour peer State ofOhio. From what I understand, Ohio has various
aquatic use designations that are similar to but more specific than those recommended for
Illinois. Each ofthese specific designations has a different daily minimum and one-day
average dissolved oxygen concentration. Probably the most common designation for
surface waters in Ohio is “warm water” which includes a daily minimum of4 mgIL and a
one-day average of5 mg/L, which appears to apply to the entire year. Clearly, Ohio’s
general standard is less conservative than our recommended statewide standard during
spring, because its minimum of 4 mg!L is 1 mg/L less than our proposed minimum
standard. And Ohio’s minimum is not significantly different than our proposed minimum
standard of3.5 mg/L during the remainder ofthe year. Ohio’s seasonal salmonid and
coldwater designations are analogous to the Lake Michigan standards, which we do not
recommend modifying.
In my assessment, the largest difference between current standards within Ohio
and Illinois is that Ohio has developed more regional-specific criteria to protect waters
that they deem important. Ohio’s “exceptional warm water” criteria are very similar to
those that Illinois currently has adopted for the entire state, where Ohio’s daily minimum
is
5
mg/L and its one-day average is 6 mg/L. Given that all the surface waters in Illinois
would certainlynot be categorized as “exceptional”, it is clear that the current general
aquatic use Illinois dissolved oxygen standard is too strict. Our recommended standards
do provide similar protection as Ohio’s “exceptional” waters during the critical peak
reproductive times ofthe year.
8
During my conversations with other scientists, resource managers, and water
regulators, I have received many comments about how the recommended standards are
based on sound science and needed in the state. I recognize and somewhat understand
the perception by some individuals that our recommendations would weakenthe Illinois
standards. However, the weight of information available for aquatic organisms suggests
that the proposed standards set more realistic expectations for surface waters in Illinois
and will not degrade the biological integrity ofthese systems. I agree that more research
is needed in many areas and hope that the proposed standard changes will be viewed as
one step in a dynamic, continuing process. It is my view that the state should move
toward developing region-specific biotic integrity, habitat quality, and water quality
criteria, as credible long-term data sets become available.
CHO2/ 22318249.2
9
CERTIFICATE OF
SERVICE
•
The undersigned certifies that a copy ofthe
Motion To Replace Written Testimony of
James E. Garvey was filed by hand delivery with the Clerk ofthe Illinois Pollution Control
Board and served upon the parties to whom said Notice is directed by first class mail, postage
prepaid, by depositing in the U.S. Mail at 191 Wacker Drive, Chicago, IL on Monday, June 21,
2004.
CHOI/ 12369943.1
Service List
R2004-025
Fred L. Hubbard
415 North Gilbert Street
Danville, IL 61834-0012
Alex Messina
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
Bernard Sawyer
Metropolitan Water Reclamation District
6001 W. Pershing Rd.
Cicero, IL 60650-4112
•
Charles W. Wesselhoft
Ross & Hardies
150 North Michigan Avenue
Suite 2500
Chicago, IL 60601-7567
Claire A. Manning
Posegate & Denes, P.C.
111 N. Sixth Street
Springfield, IL 62705
Connie L. Tonsor
IEPA
1021 North Grand Avenue
P.O. Box 19276
Springfield, IL 62794-9276
Deborah J. Williams
IEPA
1021 North Grand Avenue
P.O. Box 19276
•
Springfield, IL 62794-9276
Dennis L. Duffield
City ofJoliet, Department ofPublic Works and
Utilities
921 B. Washington Street
Joliet, IL 60431
Dorothy M. Gunn
Illinois Pollution Control Boark
100 W. Randolph St.
Suite 11-500
Chicago, IL 60601
Erika K. Powers
Barnes & Thornburg
1 N. Wacker
Suite 4400
Chicago, IL 60606
Frederick D. Keady
Vermilion Coal
1979 Johns Drive
Glenview, IL 60025
James L. Daugherty
Thorn Creek Basin Sanitary District
700 West End Avenue
Chicago Heights, IL 60411
James T. Harrington
Ross & Hardies
150 North Michigan Avenue
Suite 2500
Chicago, IL 60601-7567
Joel J. Sternstein
Office ofthe Attorney General
188 West Randolph
20th Floor
Chicago, IL 60601
Service List
R2004-025
John Donahue
City of Geneva
22 South First Street
Geneva, IL 60 134-2203
Jonathan Furr
Illinois Department ofNatural Resources
One Natural Resources Way
Springfield, IL 62702-1271
Ketherine D. Hodge
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box 5776
Springfield, IL 62705-5776
Larry Cox
Downers Grove SanitaryDistrict
2710 Curtiss Street
Downers Grove, IL
60515
Lisa Frede
Chemical Industry Council ofIllinois
2250 E. Devon Avenue
Suite 239
Des Plaines, IL 60018-4509
Margaret Hedinger
2601 South Fifth Street
Springfield, IL 62703
Matthew J. Dunn
Office ofthe Attorney General
188 West Randolph
~
Floor
Chicago, IL 60601
Michael G. Rosenberg, Esq.
Metropolitan Water Reclamation District
100 East Brie Street
Chicago, IL 60611
Mike Callahan
Bloomington Normal Water Reclamation
District
P0 Box 3307
Bloomington, IL 61702-3307
Richard Lanyon
Metropolitan Water Reclamation District
100 East Erie Street
Chicago, IL 60611
Richard McGill
Illinois Pollution Control Board
100 W. Randolph St.
Suite 11-500
Chicago, IL 60601
Sanjay K. Sofat
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Stephanie N. Diers
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Sue Schultz
Illinois American Water Company
300 North Water Works Drive
P.O. Box 24040
Belleville, IL 62223-9040
Service List
R2004-025
Susan M. Franzetti
10 South LaSalle Street
Suite 3600
Chicago, IL 60603
Tom Muth
Fox Metro Water ReclamationDistrict
682 State Route 31
Oswego, IL 60543
Vicky McKinley
Evanston Environment Board
23 Grey Avenue
Evanston, IL 60202
W.C. Blanton
Blackwell Sanders Peper Martin LLP
2300 Main Street
Suite 1000
Kansas City, MO 64108
CHO2/ 22319597.1
