1
1
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
)
7
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.
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A P P E A R A N C E S
2
MS. MARIE TIPSORD, Hearing Officer
MR. THOMAS JOHNSON, Acting Chairman
3
MR. ANAND RAO
MS. ANDREA MOORE
4
DR. SHUNDAR LIN
Appearing on behalf of the Illinois
5
Pollution Control Board
6
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 North Grand Avenue East
7
P.O. Box 19276
Springfield, Illinois 62794-9276
8
(217)782-5544
BY: MS. DEBORAH WILLIAMS
9
MS. STEPHANIE DIERS
MR. ROBERT SULSKI
10
MR. SCOTT TWAIT
MR. HOWARD ESSIG
11
MR. RAY SMOGOR
12
BARNES & THORNBURG
One North Wacker Drive
13
Suite 4400
Chicago, Illinois 6606-2833
14
(312)357-1313
BY: MR. FREDRIC P. ANDES
15
Appearing on behalf of the Metropolitan
Water Reclamation District
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1
HEARING OFFICER TIPSORD: Good
2
morning. My name is Marie Tipsord. I've
3
been appointed by the Board to serve as
4
hearing officer in this proceeding entitled
5
Water Quality Standards and Effluent
6
Limitations for the Chicago Area Waterway
7
System and Lower Des Plaines proposed
8
amendments to 35 Ill. Admin. Code 301, 302,
9
303, and 304. The docket number is R08-9.
10
As we discussed, due to a family emergency
11
Dr. Girard is not with us today, but for him
12
to my left is board member Thomas Johnson.
13
Also present are board members Andrea Moore
14
to my right and Dr. Shundar Lin. Also to my
15
immediate right is Anand Rao for technical
16
staff.
17
This is our eighth set of hearings
18
to be held, and the purpose of today's
19
hearing is to continue hearing testimony from
20
the participants other than the proponents,
21
the Illinois Environmental Protection Agency.
22
At the close of hearing on November 17, we
23
had finished with 18 witnesses from the
24
Metropolitan Water Reclamation District of
4
1
Greater Chicago, and we'll continue with the
2
district starting with Dr. Scudder Mackey to
3
be followed by Jennifer Wasik, and if we have
4
time in these two days Samuel Dennison. The
5
testimony will be marked as an exhibit and
6
entered as if read. After marking the
7
prefiled testimony as an exhibit, we will
8
then proceed to questions for the testifier.
9
And I believe for Dr. Mackey the only
10
prefiled questions are from the IEPA.
11
MS. DEXTER: We have some, too.
12
HEARING OFFICER TIPSORD: I'm sorry.
13
The Environmental Law and Policy Center has
14
some as well. Anyone may ask a follow-up
15
question, and you need not wait until your
16
turn to ask questions. I do ask that you
17
raise your hand, wait for me to acknowledge
18
you. After I've acknowledged you, please
19
state your name and whom you represent before
20
you begin your questions. Please speak one
21
at a time. If you're speaking over each
22
other, the court reporter will not be able to
23
get your questions on the record. Please
24
note that any question asked by a board
5
1
member or staff are intended to help build a
2
complete record for the Board's decision and
3
not express any preconceived notion or bias.
4
I plan to try to go to around 5:00 today. If
5
we have a natural break before then, we'll
6
break then. We'll also have about an hour
7
for lunch.
8
Member Johnson, do you have
9
anything to add?
10
MEMBER JOHNSON: No. I suspect the
11
day will come when we'll all look back fondly
12
on Day 22, but.
13
MEMBER MOORE: Tomorrow.
14
MEMBER JOHNSON: Thanks for coming,
15
and we'll get started.
16
HEARING OFFICER TIPSORD: Mr. Andes,
17
will you have your witness sworn in.
18
(Witness sworn.)
19
MR. ANDES: I have a copy of the
20
prefiled testimony.
21
HEARING OFFICER TIPSORD: All right.
22
We will mark that as Exhibit No. 179, if
23
there's no objection. Seeing none, it's
24
Exhibit 179. By the way, I haven't found out
6
1
what the exhibit record is, but the hearing
2
is 35 days, so.
3
MS. WILLIAMS: Thank you.
4
HEARING OFFICER TIPSORD: And with
5
that, we'll begin with the IEPA.
6
MS. DIERS: Good morning, Dr. Mackey.
7
My name is Stephanie Diers with Illinois EPA.
8
I'll start with our prefiled questions. And
9
I'm going to go to Page 97 of those. After
10
looking over them and bouncing around a
11
little bit, so I'm going to try to do a
12
better job keeping it in line with the
13
record. I'm going to start with Question 13.
14
On Page 3 of your prefiled testimony, you
15
mention that you will provide an alternative
16
strategy that integrates all of the
17
fundamental habitat characteristics necessary
18
to maximize the productive and ecological
19
capacity of the CAWS. You proceed to say on
20
Page 4 of your prefiled testimony that
21
biological characteristics are also an
22
important element of aquatic habitat but will
23
not be discussed in detail in this testimony
24
or not included in Figure 1.
7
1
And the question is by not
2
including biological characteristics, how are
3
you integrating all characteristics as
4
mentioned on Page 3 of your prefiled
5
testimony?
6
MR. MACKEY: As stated clearly in my
7
prefiled testimony on Page 4, and contrary to
8
what's implied here, I do believe that
9
biological interactions are a fundamental
10
part of how an organism relates to its
11
environment. But that is not what I was
12
asked to review or comment on in my
13
testimony. My testimony is focussed
14
primarily on how aspects of physical habitat
15
were considered and evaluated by the Illinois
16
EPA with respect to the CAWS. Other
17
witnesses will discuss in more detail the
18
biological aspects of the CAWS. In other
19
words, I'm a geologist. I'm not a biologist,
20
okay, and I do not feel qualified to address
21
what I consider to be purely biological
22
questions, nor is that what I was asked to
23
do.
24
MS. DIERS: And do you know who the
8
1
biological witnesses are to address those
2
questions to?
3
MR. MACKEY: I believe Sam Dennison
4
from the District. I believe he's a
5
fisheries biologist, ecologist. And I
6
believe Jennifer Wasik has a biological
7
background as well. I'm not sure that that's
8
what she will be speaking to.
9
MS. DIERS: Moving on to Question 14.
10
What do you mean by maximize the productive
11
and ecological capacity?
12
MR. MACKEY: I use the term maximize
13
the productive and ecological capacity to
14
mean healthy self-sustaining aquatic
15
community that is balanced and supported by
16
diverse habitat structure. I believe this
17
definition would be compatible with a concept
18
of the Clean Water Act general use waters
19
aquatic life use designation. However,
20
physical habitat limitations within the CAWS
21
do not provide the diverse habitat structure
22
necessary to meet Clean Water Act general
23
aquatic life use goals. Irrespective of
24
improvements in water quality or as proposed
9
1
in IPCB R08-9, to establish appropriate and
2
attainable aquatic life use goals in the
3
CAWS, it is necessary to consider all of the
4
fundamental habitat elements, not just the
5
water quality element.
6
MS. DIERS: When you say fundamental
7
habitat, what are you referring to?
8
MR. MACKEY: What I'm talking about
9
are the components that are illustrated in
10
Figure 1 of my prefiled testimony. You're
11
talking primarily about energy, you're
12
talking about biology -- not biology. I'm
13
sorry. Substrate which is the geology. And
14
you're also talking about water mass
15
characteristics or the hydrology of the
16
system. So from a perspective of physical
17
habitat, I'm talking about the three
18
fundamental physical components that, when
19
integrated together with appropriate ranges,
20
actually represent usable habitat for a
21
particular species, organism, or, if you
22
want, community or ecological function.
23
MR. ANDES: We have copies of that
24
particular figure.
10
1
HEARING OFFICER TIPSORD: And this is
2
the identical Figure 1 in the testimony?
3
MR. MACKEY: Yes.
4
HEARING OFFICER TIPSORD: For ease of
5
referring to it here today, and since this
6
one is in color and mine is not, we will mark
7
this.
8
MR. MACKEY: I did that last night,
9
okay?
10
HEARING OFFICER TIPSORD: We will mark
11
this as Exhibit No. 180 if there is no
12
objection.
13
Seeing none, it's Exhibit 180.
14
MR. MACKEY: This diagram was
15
originally put together for a paper that I
16
wrote for the International Joint Commission,
17
my national commission in the Canada and the
18
U.S., where I was asked to evaluate and
19
actually define the concept of physical
20
integrity with respect to the Great Lakes
21
Water Quality Agreement which is currently
22
under review by both federal governments for
23
a provision.
24
MS. DIERS: So this figure that you
11
1
put together is this a concept you developed?
2
MR. MACKEY: It's one that, yes, I
3
developed even though there are other types
4
of conceptual systems, if you want, that are
5
very similar to this.
6
MS. DIERS: What would those be?
7
DR. MACKEY: In terms of other
8
systems?
9
MS. DIERS: Yes.
10
DR. MACKEY: There was a publication
11
that was put together that looked at how to
12
classify habitats basically in lake systems
13
where they have not a similar diagram, but a
14
similar set of characteristics that when
15
integrated together also are describing
16
habitat.
17
MS. DIERS: So this concept that we
18
are talking about in Figure 1, did you design
19
it for lakes?
20
DR. MACKEY: No. This actually, the
21
interesting thing is that, No. 1, yes, it was
22
designed initially for use in the Great
23
Lakes, but it also translates very nicely
24
into riverine systems. Because physical
12
1
habitat is physical habitat, whether it's in
2
a lake system or whether it's in a riverine
3
system. And the fundamental components here
4
are present in a riverine system as well such
5
as the CAWS. For example, when you look at
6
the right-hand column here on this diagram,
7
you see the topic of energy estimated from
8
hydraulic calculations for oscillatory and
9
unidirectional flows. On oscillatory flows,
10
you're talking about the back and forth
11
movement due to wave action, and that
12
typically is what will either transport
13
sediments or imparts energy into the water
14
column. In riverine systems, it's
15
predominantly unidirectional flows, where you
16
have flow from upstream to downstream, water
17
does flow down hill. So this diagram is
18
actually applicable to both types of
19
environments.
20
MS. DIERS: And have you used this
21
concept on any other river besides -- I
22
assume -- I guess I should start first you've
23
used this concept on the CAWS right now?
24
DR. MACKEY: Yes.
13
1
MS. DIERS: Okay. Have you done it
2
with other rivers besides the CAWS?
3
DR. MACKEY: Yes.
4
MS. DIERS: And what rivers would
5
those be?
6
DR. MACKEY: I've worked on the Maumee
7
River in Northwest Ohio, the Sandusky River
8
in Northwest Ohio and the Grand River in
9
Northern Ohio. I've worked on the Detroit
10
River, I've applied it to the Don River in
11
Toronto, Ontario Canada, to the Rouge River
12
and to the Dufference (ph.) River, all in
13
Ontario, Canada, in terms of specific
14
evaluations.
15
MS. DIERS: And are those rivers that
16
you just mentioned, are they comparable to
17
how the CAWS is set up like the nonwadable
18
have a lot of impact on the system? Are
19
those comparable to that?
20
DR. MACKEY: They have -- yes and no.
21
The answer to that question is that it's an
22
ending river. There are navigable portions
23
in many cases where you can't wade. It's too
24
deep, unless, perhaps, you've a professional
14
1
basketball player. There are wadable
2
portions as well. And I have used this
3
approach by evaluating these different
4
fundamental elements in all these riverine
5
systems in both wadable and nonwadable areas
6
of those rivers.
7
MS. DIERS: I'm going to go back to
8
our prefiled question 15. And the question
9
is what is this strategy an alternative to.
10
When you're using a strategy that was in your
11
prefiled testimony on Page 3 where you said
12
your alternative strategy.
13
DR. MACKEY: If I recall, your
14
question is focussed on as an alternative to,
15
and I think what I am proposing here is
16
something that's different than the apparent
17
focus of the Illinois EPA on water quality in
18
lieu of almost any other habitable element.
19
It's almost an exclusive focus on the
20
hydrology, water quality aspect, and really
21
didn't pay much attention to the substrate or
22
the energy conditions within the CAWS. Some
23
of these other examples in particular that
24
are important from habitat perspective, which
15
1
is what I focus on as well, is what's the
2
structure and the pattern and the
3
connectivity of these different types of
4
habitats in these riverine systems as well.
5
That is extremely important. And I think
6
there's a quote by Yoder and Rankin in 1998
7
out of one of their papers which I included
8
in my prefiled testimony. And it basically
9
says this: Because biological integrity is
10
influenced and determined by multiple
11
chemical, physical, and biological factors, a
12
singular strategy emphasizing the control of
13
chemicals alone does not assure the
14
restoration of biological integrity. In
15
other words, we need to look at the whole
16
package, not to just one very narrow portion
17
of that package.
18
HEARING OFFICER TIPSORD: For the
19
record, that quote is actually on Page 4 and
20
5 of your prefiled testimony, which is
21
Exhibit 180 or 179.
22
DR. MACKEY: That's correct.
23
MS. DIERS: I'm going to move on to
24
Question 19. Would the physiochemical water
16
1
standards proposed by Illinois EPA, if met,
2
fail to support attainment of the aquatic
3
life goals proposed by Illinois EPA for the
4
CAWS?
5
DR. MACKEY: Well, first, Illinois EPA
6
has not presented any data or information
7
that would support the contention that an
8
incremental increase in water quality
9
standards will result in attainment of the
10
proposed aquatic life use goals. According
11
to the testimony presented by Illinois EPA,
12
the increase in the dissolved oxygen standard
13
for Aquatic Use A Waters is designed to
14
protect early life stage fish based on the,
15
quote, undocumented assumption that fish
16
spawning is occurring within the CAWS.
17
However, no data or evidence has been
18
collected by the District or the CAWS UAA
19
contractors to indicate that spawning
20
activity has occurred in the CAWS. No eggs
21
or larval fish indicative of spawning
22
activity have been collected nor have fish
23
been observed and actively spawning within
24
the CAWS. Until spawning activity is
17
1
observed directly and/or eggs or larval fish
2
are recovered from potential spawning sites,
3
one cannot conclude that fish are spawning or
4
propagating in the CAWS.
5
Second, Illinois EPA has
6
suggested that different size classes of
7
fish -- different size classes of fish may
8
indicate the presence of an early life stage
9
fish. But different size classes are not
10
determinative of spawning or reproductive
11
activity. Different size classes could be
12
indicative of different growth rates and/or
13
the presence of different strains of the same
14
species. I know, based on some of the work
15
that I've done in Lake Erie with the
16
fisheries biologist in the agencies, that we
17
do see some substantial differences in the
18
size classes of fish, even though they are
19
the same, and it's more related to growth
20
rates and productivity and food supply and,
21
in part, water temperature than whether or
22
not these fish are coming from spawning
23
substrates.
24
Again, unless there's some direct
18
1
evidence such as either observing or sample
2
collection that link these fish to specific
3
spawning locations within the CAWS, these
4
fish could just as easily have migrated from
5
areas outside of the CAWS in either from Lake
6
Michigan or perhaps another tributary.
7
Third, with respect to
8
physical habitat, review of prior reports and
9
associated literature suggest that these
10
factors such as a lack of habitat
11
availability and diversity are more limiting
12
than degraded water quality in the CAWS. For
13
example, the CAWS UAA report on Page 5-3
14
states, "Improvements to water quality
15
through various technologies like reaeration
16
may not improve the fish communities due to
17
lack of suitable habitat support fish
18
populations. Unless habitat improvements are
19
made in areas like the Chicago Sanitary and
20
Ship Canal, additional aeration may not
21
result in the attainment of higher aquatic
22
life use. Ignoring their recommendations of
23
the CAWS UAA contractor, Illinois EPA has
24
recommended result oxygen standards that are
19
1
in, in essence, identical to general use
2
dissolved oxygen standards for the Type A
3
waters.
4
And, fourth, the implicit
5
assumption in Illinois EPA's proposal is that
6
improvements in water quality alone are
7
sufficient to attain the aquatic life uses
8
proposed by Illinois EPA and that the CAWS is
9
not habitat limited. I believe that is
10
incumbent upon Illinois EPA to demonstrate
11
that there is sufficient aquatic habitat
12
available in the CAWS to attain the proposed
13
aquatic life uses, and to show that the
14
system is not habitat limited.
15
Unfortunately, Illinois EPA has not provided
16
any data, information, or analyses to show
17
that there is sufficient aquatic habitat to
18
support attainment of the appropriate --
19
sorry -- attainment of the proposed aquatic
20
life uses in the CAWS.
21
We will have a better
22
understanding of the habitat conditions when
23
the ongoing habitat evaluation and
24
improvement study has been completed. Only
20
1
after comprehensive evaluation of habitat can
2
this question be answered properly. In other
3
words, we really don't have enough
4
information on the physical habitat and
5
characteristics in the CAWS to determine
6
whether or not the system -- if there is
7
enough habitat there to actually support the
8
proposed aquatic life uses.
9
HEARING OFFICER TIPSORD: Miss Dexter?
10
MS. DEXTER: Jessica Dexter. Do you
11
do any fish sampling yourself?
12
DR. MACKEY: No, I do not.
13
MS. DEXTER: Do you know anything
14
about the limitations of the equipment that
15
has been used for sampling?
16
DR. MACKEY: I have some familiarity
17
with the limitations. But, again, I would
18
qualify that statement that I am not a
19
fisheries biologist, and so that any answer I
20
may give will be from basically a lay
21
person's perspective.
22
MS. DEXTER: All right. So you might
23
say that your opinion on the samples is also
24
qualified down as -- You're not a biologist,
21
1
so what you're saying about the -- about the
2
biology --
3
DR. MACKEY: In my responses here and
4
in my prefiled testimony, I'm basically
5
quoting from other sources from people who
6
have more expertise in this issue than I.
7
MS. DEXTER: Thank you.
8
MS. DIERS: Where are you quoting
9
from?
10
DR. MACKEY: I was referring to the
11
life -- Actually, there's a report from the
12
District that discusses a lack of early life
13
stage fish. I believe it was a report 98-10.
14
It was an attachment to my testimony.
15
HEARING OFFICER TIPSORD: It was
16
listed as a reference, but I'm not sure it
17
was an actual attachment.
18
DR. MACKEY: Okay.
19
HEARING OFFICER TIPSORD: Let me
20
check. I'm looking right now.
21
DR. MACKEY: It may have been as an
22
attachment to the original report, a longer
23
piece that was in support of the prefiled
24
testimony. But I do believe we did include
22
1
that.
2
HEARING OFFICER TIPSORD: Yes. It's
3
M-3, attachment M-3.
4
MS. DIERS: Have you seen any reports
5
on the CAWS that shows that spawning is not
6
occurring in these waters?
7
DR. MACKEY: No.
8
MS. DIERS: I'm going to go to
9
Question 20. On Page 4 of your prefiled
10
testimony, you mention that fish will not
11
propagate successfully if spawning habitat is
12
not connected, connected is in quotes, to
13
suitable nursery and forage habitats. If all
14
detrimental reversible human impacts were
15
mitigated in the CAWS, do you believe that
16
there would be insufficient spawning habitat,
17
nursery habitat, and foraging habitat in the
18
CAWS to support the aquatic life uses
19
proposed by Illinois EPA for these waters?
20
And what biological information do you base
21
this conclusion on?
22
DR. MACKEY: Well, first, the implicit
23
assumption in Illinois EPA's proposal is that
24
improvements in water quality alone are
23
1
sufficient to attain aquatic life uses,
2
proposed aquatic life uses, and that the CAWS
3
is not habitat limited. And, once again,
4
I'll state I believe that it's incumbent upon
5
Illinois EPA to demonstrate that there was
6
sufficient aquatic habitat available in the
7
CAWS to attain the proposed aquatic life uses
8
and to show that the system is not habitat
9
limited.
10
Second, the habitat assessment
11
and analysis used by Illinois EPA propose
12
these aquatic life use designations were
13
deficient and severely flawed. The existing
14
data and analyses are not sufficient to show
15
that the CAWS has enough spawning, nursery,
16
or foraging habitat to support attainment of
17
the proposed aquatic life uses.
18
Third, the CAWS is an
19
artificial system originally constructed to
20
convey wastewater and serve as a commercial
21
waterway to promote commerce. The CAWS still
22
performs those functions, and those functions
23
are not likely to change in the foreseeable
24
future. Fish habitat and ecological function
24
1
were not on the radar screen when the
2
waterways were originally constructed. It is
3
not reasonable to expect that the system will
4
have habitat characteristics similar to a
5
natural system, nor is it reasonable to
6
assume that existing physical habitats within
7
the CAWS are sufficient to support the
8
proposed aquatic life use goals.
9
So based currently on the
10
current -- currently available habitat data,
11
I do not believe that there is sufficient
12
habitat diversity or connectivity to support
13
the aquatic life uses proposed by Illinois
14
EPA for these waters.
15
I would also say, as stated in
16
my prefiled testimony on Page 14, I think
17
we've already went through this comment. But
18
basically, again, restate this improvement to
19
water quality through various technology like
20
reaeration may not improve the fish
21
communities due to a lack of suitable habitat
22
to support the fish populations. And unless
23
habitat improvements are made in areas like
24
sanitary -- the ship sanitary canal,
25
1
additional reaeration may not result in the
2
attainment of higher aquatic life uses.
3
MR. ANDES: Is that a quote from the
4
UAA report?
5
DR. MACKEY: Yes, it is.
6
HEARING OFFICER TIPSORD: The CAWS UAA
7
Attachment B to the proposal.
8
DR. MACKEY: Also in my prefiled
9
testimony I listed several other potential
10
limiting factors. One is physical
11
limitations such as a lack of shallow bank
12
edge habitats and riparian cover, lack of
13
in-stream habitat cover and diversity, lack
14
of suitable substrates and substrate
15
heterogeneity or altered flow regimes. And
16
we're talking about flow, flow magnitude, and
17
also changes in water levels.
18
Second, biological limitations
19
such as limited, primary productivity,
20
degraded macrobenthic communities which is,
21
in essence, a food supply issue, predation or
22
lack of appropriate spawning and nursery
23
habitats.
24
Third, chemical limitations
26
1
such as legacy contaminants in the sediments.
2
And, fourth, functional
3
limitations such as navigation, prop wash
4
and/or turbulence, sediment resuspension and
5
waves from commercial vessels moving up and
6
down through the channel, and conveyance of
7
waste and flood waters. And that -- we're in
8
a regulated flow regime which regulates flows
9
in the system, but also regulates water
10
levels in part for navigation purposes.
11
In terms of the biological
12
information, I would refer you to
13
Attachment 1 of Dr. Melching's prefiled
14
testimony, where based on species specific
15
habitat suitability index models, HSIs, he
16
concludes that the CAWS is No. 1 for habitat
17
for adult smallmouth bass and channel
18
catfish; two, is near optimal habitat for
19
adult largemouth bass which is consistent
20
with the fish abundance data report in the
21
CAWS UAA report which I believe is Attachment
22
B.
23
And, furthermore, Dr. Melching
24
suggests that the high abundance of
27
1
largemouth bass demonstrates that current
2
water quality of the CAWS is sufficient for a
3
healthy largemouth bass community, and that
4
higher dissolved oxygen standards are not
5
needed. However, Dr. Melching does state
6
that the CAWS does not have suitable habitat
7
to support early life stages of these target
8
fish species, and that's a result of the
9
habitat suitability indeces analysis.
10
MS. DIERS: So you don't have personal
11
knowledge of this? You're going at what
12
Melching did and quoting back to us what he
13
said? Is that --
14
DR. MACKEY: Well, that's in part
15
true. But I've also spent some time on the
16
waterway. I've collected side-scan sonar
17
data where I'm actually able to image and
18
develop an image of the entire channel bottom
19
substrate in a continuous nature. So I have
20
a very good feel for what the different types
21
of substrates are, what the in-stream habitat
22
structures are. And compared to a natural
23
system, the CAWS system is extremely limited
24
in terms of the habitat types, but also the
28
1
patterns and the juxtaposition of different
2
types of habitat next to one another, which I
3
believe are critical to a naturally
4
functioning system that would support
5
appropriate aquatic life uses.
6
MS. DIERS: When were you on the
7
waterway?
8
DR. MACKEY: I've been on the waterway
9
intermittently for the last probably four
10
months.
11
MS. DIERS: And was that -- Were you
12
on the waterway to do this habitat study that
13
you're doing for the District? Is that
14
your --
15
DR. MACKEY: I have a small
16
subcontract with LimnoTech to provide some of
17
this data on a reconnaissance basis to
18
evaluate its potential utility to help
19
develop a more formal index that could be
20
applied to urban systems.
21
MS. DEXTER: Have you been on the
22
entire waterway?
23
DR. MACKEY: I have not been -- I have
24
been on the entire waterway, yes, on various
29
1
vessels. With respect to this work, I've
2
only done a portion of the waterway. Again,
3
this is a reconnaissance study. It's not a
4
complete survey of the entire waterway system
5
at this time.
6
MS. DEXTER: Which portions have you
7
been on?
8
DR. MACKEY: I have been on about
9
two-thirds of the Cal-Sag channel. I have
10
been on several different segments of the
11
Sanitary and Ship Canal, I have been on the
12
north branch, of the upper portion of the
13
north branch and the lower portion of the
14
North Shore Channel in terms of using the
15
side-scan sonar. I've also been in the
16
Indiana harbor area, and that was a separate
17
project that I was under contract with the
18
United States Coast Guard doing similar types
19
of surveys in Lake Michigan.
20
MS. DEXTER: Thank you.
21
MS. DIERS: Sir, are you relying on
22
the habitat suitability indeces for your
23
biological support that you're offering
24
today?
30
1
DR. MACKEY: I would have to say that
2
that is part of it. And really I'm not -- I
3
wouldn't say that I'm necessarily relying on
4
biological data. I am relying predominantly
5
on what I see in terms of the types of
6
physical habitat and the physical habitat
7
characteristics that I observe in the system.
8
And also relying on my, I think, considerable
9
expertise in evaluating other natural
10
systems. And this system is definitely
11
different than a natural system.
12
MS. DIERS: Do you know if
13
Dr. Melching was a biological expert?
14
DR. MACKEY: I do not believe that he
15
is.
16
MS. DIERS: Question 21: What do you
17
mean by connected, that we had in quotes,
18
based on your testimony on Page 4?
19
DR. MACKEY: Okay. This will be a
20
short answer, okay? What I mean by connected
21
is it's accessible land organism subject to
22
appropriate time, distance, and energy
23
constraints. This term is based on the
24
concept of a functional habitat mosaic. In
31
1
other words, the distribution, pattern, and
2
juxtaposition of habitats needed to support a
3
healthy balanced self-sustaining aquatic
4
community.
5
MS. DIERS: I'm going to go to
6
prefiled Question 24. On Page 4 of your
7
prefiled testimony, you mention that there
8
are three major classes of variables that
9
must be considered when assessing aquatic
10
habitat: Flow regime, substrate, and water
11
chemistry and quantity. What do you mean by
12
when assessing aquatic habitat?
13
DR. MACKEY: When assessing aquatic
14
habitat means an assessment of the
15
physical -- chemical characteristics and the
16
physical structure, processes, and energy
17
that allows specific life stages of aquatic
18
organisms to use an area or location as
19
habitat. And, again, I would refer back to
20
Figure 1 which is this, the three-ring
21
diagram, this sort of like half of the
22
Olympic rings, I guess, here. And the
23
definition of physical habitat provided in my
24
prefiled testimonies on Pages 3 and 4 that
32
1
clearly describe a conceptual foundation used
2
to assess physical habitat, and I quote,
3
"Physical habitats are defined by a range of
4
physical characteristics and energy
5
conditions that can be delineated
6
geographically to meet the needs of the
7
specific species biological community or
8
ecological function. To be utilized as
9
habitat, these physical characteristics and
10
energy conditions must exhibit an
11
organizational pattern, persist, and be
12
reputable elements that are essential to
13
maintain a sustainable and renewable
14
resource. The reputable nature of habitat
15
implies that the natural processes that
16
create physical habitat must be reputable and
17
may persist over a range of spatial and
18
temporal scales.
19
MS. DIERS: I'm going to go to
20
Question 26. On Page 4 of your prefiled
21
testimony, you state: All of these variables
22
must be spatially and temporally connected by
23
physical and biological processes in ways
24
that support diverse aquatic communities.
33
1
What do you mean by diverse aquatic
2
communities?
3
DR. MACKEY: Diverse aquatic community
4
means biological community composed of
5
different aquatic species and taxa. In this
6
context it means a diverse, balanced, healthy
7
aquatic community created by the interaction
8
of chemical, physical and biological
9
processes within the CAWS.
10
MS. DIERS: Is it true that the
11
Illinois EPA is proposing an aquatic life use
12
designation that is below the Clean Water Act
13
goal?
14
DR. MACKEY: That's an interesting
15
question. From a narrative perspective, the
16
answer would be yes in the way it's described
17
in the Illinois EPA statement of reasons.
18
But then when you look at the dissolved
19
oxygen standards, let's say they're
20
associated with the Type A waters, they're,
21
in essence, the same as general use water
22
standards. So I don't really see the
23
difference here. In other words, okay, yeah,
24
you've said that your proposed aquatic life
34
1
uses are below the general use criteria. But
2
the criteria or the standards are, in
3
essence, identical. So I don't see a
4
difference.
5
MS. DIERS: Can you explain how you
6
see that the Class A waters that you said the
7
Illinois EPA proposed is just like the
8
general use that was adopted from the
9
dissolved oxygen?
10
DR. MACKEY: Well, if I recall, and,
11
again, I'm not an expert on dissolved oxygen
12
and water chemistry, okay, but if I recall in
13
your -- I just want to refer to the proper
14
table here. Right. If you go to the
15
statement of reasons, Table 1, Page 50, there
16
is a table that is put together that
17
basically shows the different dissolved
18
oxygen standards proposed for the Type A and
19
Type B waters.
20
MS. WILLIAMS: What page?
21
DR. MACKEY: Page 50 on the Illinois
22
EPA statement of reasons.
23
MS. DIERS: We have Page 60. I don't
24
know if our pages are different, but.
35
1
DR. MACKEY: I'm sorry. It's the one
2
with the two little dark areas down at the
3
bottom here.
4
MS. DIERS: We have it Page 60 in the
5
statement of reasons.
6
DR. MACKEY: And basically I believe
7
it's 5 milligrams per liter is for the period
8
from March through July is the standard
9
that's been proposed for the Type A waters,
10
and I believe that is to protect early life
11
stage fish, and I believe the general use
12
water standard is also 5 milligrams per
13
liter.
14
MS. DIERS: Looking at this table, and
15
if you go to Chicago Area Waterway System
16
Aquatic Life Use A waters, is there a
17
seven-day mean of daily means proposed for
18
those waters?
19
DR. MACKEY: I don't know the answer
20
to that question.
21
MS. DIERS: I'm going to move on to
22
Question 27 of our prefiled questions. On
23
Page 5 of your prefiled testimony you state,
24
"This assessment should include an integrated
36
1
analysis of current physical habitat, flow,
2
temperature, water quality, and existing
3
aquatic communities."
4
Did the CAWS UAA, which was
5
Attachment B, include water quality,
6
sediment, temperature, habitat, biological
7
and flow information?
8
DR. MACKEY: I guess I would have to
9
answer yes. But I'm going to make that a
10
qualified yes. Because as described in my
11
prefiled testimony, I believe the Illinois
12
EPA's analyses of these data to be inadequate
13
and flawed. In fact, from what I can gather
14
from Illinois EPA's statement of reasons and
15
its subsequent testimony, the process used by
16
Illinois EPA was not based on clear
17
scientific methodology, at least that I can
18
determine from reading the testimony today.
19
But, rather, was based more on general
20
perceptions as to what areas had good aquatic
21
life potential and what areas had poor
22
aquatic life potential based on the data
23
collected by the CAWS UAA contractor, and,
24
perhaps, some other systems.
37
1
For example, in an artificial
2
system such as the CAWS, an assessment of
3
physical habitat is necessary, and I believe
4
required, to assess whether or not proposed
5
aquatic life uses can be attained. An
6
incomplete habitat assessment such as I
7
believe has occurred in the CAWS will lead to
8
the development of unattainable aquatic life
9
uses. The habitat assessment and analyses
10
used by Illinois EPA to propose these aquatic
11
life use designations were deficient and
12
severely flawed in my opinion. Illinois EPA
13
has not provided any data, information, or
14
analyses to show that there is sufficient
15
aquatic habitat to support attainment of the
16
proposed aquatic life uses in the CAWS or
17
that the system is not habitat limited.
18
And with respect to water
19
quality, Illinois EPA has not presented any
20
data or information that would support the
21
contention that an incremental increase in
22
water quality standards will result in
23
attainment of the proposed aquatic life use
24
goals. In the CAWS UAA report on Page 5-3 it
38
1
states, improvements to water quality through
2
various technologies like reaeration may not
3
improve the fish communities due to lack of
4
suitable habitat to support fish populations.
5
Unless habitat improvements are made in areas
6
like the Chicago Sanitary and Ship Canal,
7
additional aeration may not result in the
8
attainment of higher aquatic life use.
9
Illinois EPA ignored the data
10
and the recommendations made by the UAA
11
contractor and recommended dissolved oxygen
12
standards that are, in essence, identical to
13
the standards for use in the general use
14
waters.
15
MS. DIERS: Did you say Illinois EPA
16
has concluded that the CAWS is not habitat
17
limited?
18
DR. MACKEY: I'm saying that I don't
19
believe the Illinois EPA has shown that there
20
is adequate habitat to support proposed
21
aquatic life uses.
22
MS. DIERS: I'm going to move on to
23
Question 28. On Page 5 of your prefiled
24
testimony, you state, "Unfortunately the CAWS
39
1
UAA report and supporting documents submitted
2
by IEPA in this rulemaking effort did not
3
meet these criterion, contain data area and
4
flaws in the methodology used to develop the
5
proposed aquatic life use designation. Can
6
you please explain what data errors and flaws
7
you're referring to?
8
DR. MACKEY: Okay. It's very
9
difficult, it has been very difficult to
10
evaluate habitat in the CAWS and exactly what
11
Illinois EPA has done. Because in some of
12
the testimony there are apparently some
13
errors reported in the QHEI values that were
14
used in part of the assessment. And this
15
specifically I am referring to the hearing
16
testimony of Essig on April 23, 2008, Pages
17
192 and 193, where he reports that the values
18
reported on Table 3 on Page 5 of the Rankin
19
2004 report are supposedly the correct
20
values. The corrected value -- are the
21
supposedly correct values. Table 2, which is
22
what was used by the UAA contractor in their
23
analysis, apparently contains incorrect QHEI
24
values. There are four sites where the
40
1
values were transposed: North Shore Channel
2
had a value, original value of -- I'm sorry.
3
Had an original value of 54, and, in fact,
4
that was the reference site that was used,
5
the IBI reference site that was used by the
6
CAWS UAA contractor in that analysis. But
7
apparently that value was transposed with the
8
Route 83 on the Cal-Sag channel. And so the
9
new revised value is a 42. So it's dropped
10
considerably in terms of its habitat quality.
11
And at the Dempster Road site on the North
12
Shore Channel, the original value was a 47.5,
13
which is -- it's a poor habitat, but it's
14
probably one of the better habitat areas
15
within the CAWS. But the revised values are
16
now down to 37.5. And that, the Dempster
17
Road, that North Shore Channel Dempster Road
18
site was transposed or switched with the
19
Cicero Road site on the Cal-Sag channel. And
20
we have a hand-out that we'd like to show you
21
that shows the changes in a bit more detail.
22
MR. ANDES: This will need to be an
23
exhibit.
24
HEARING OFFICER TIPSORD: I've been
41
1
handed what is titled at the top Original
2
QHEI Scores and a table below that with the
3
corrected QHEI values. If there is no
4
objection, we will mark this as Exhibit 181.
5
Seeing none, it's Exhibit 181.
6
DR. MACKEY: What this exhibit is
7
showing and what it is, it's based on Figure
8
5-2 on Page 59 of the CAWS UAA report. And
9
this diagram has issues which we don't need
10
to discuss right now, but basically is a way
11
the contractor chose to display geographic
12
distribution of IBI scores, fish IBI scores
13
which is a measure of the health of the
14
aquatic community, at least the fish aspect
15
of it. And then the black dots are the QHEI
16
scores which is a measure of habitat quality,
17
okay, and of macrohabitat quality, in
18
essence. What I'm going to ask you to do is
19
let's not focus on the top plot, but let's
20
look at the bottom plot, because that's what
21
we're discussing right now. What I had
22
plotted there on Figure 5-2 is, No. 1, that
23
the colored areas are where Illinois EPA has
24
proposed aquatic life use A and B waters,
42
1
okay, to give you a feel for what's
2
apparently better or not so good. Secondly
3
what I've shown, there are three horizontal
4
red lines, and those red lines represent
5
boundaries that are established by Ed Rankin
6
and his group that delineate different types
7
or narrative scores for -- different
8
narrative descriptions for the QHEI values.
9
And those are listed on the right-hand side.
10
A QHEI value of 30 is very poor, 30 to 45 is
11
poor, 45 to 60 is fair, and then above 60 is
12
good habitat conditions. And then, again,
13
take a look at the black dots. And what I've
14
done, have actually put the corrected QHEI
15
values there. You can see on the bottom are
16
the geographic locations, and the locations
17
that are outlined in the red box are the ones
18
where the changes were made. And what I'm
19
showing is there is an open circle with a
20
couple of horizontal lines. That was the
21
original score, and actually was the score
22
used by the UAA CAWS contractor, and I
23
believe also used by Illinois EPA in their
24
initial designation process. And what's
43
1
happened is with the changes is that you can
2
see for the North Shore Channel, the one to
3
the furthest to the left, that we've had a
4
drop from a fair habitat to, in essence, a
5
poor habitat. For the next one, which is the
6
North Shore Channel at Dempster Street, it's
7
listed there, not Dempster Road. You also
8
see a substantial drop in the QHEI scores.
9
And then if you move to the right side of
10
that figure, you'll see the Cal-Sag Channel,
11
it's Cicero Ave, is that what was originally
12
classified as poor habitat has now moved up
13
to the fair habitat area. And the Cicero
14
Road site has also moved from the poor to
15
fair. So those are the changes.
16
MS. DIERS: Where did you get the
17
corrected QHEI values at?
18
DR. MACKEY: That was from the
19
testimony of Essig. It was in the hearing
20
testimony. And they provided -- they said
21
those were transposed values. And those were
22
the values that were reported in the hearing
23
testimony. And the point is is that, and
24
this is really important, that these
44
1
transposition errors can only be verified by
2
examining the original field data sheets that
3
score each of the six major metrics and/or
4
submetrics that are used to calculate the
5
QHEI scores. Based on the hearing testimony,
6
we understand that Illinois EPA has not
7
reviewed the original field data sheets to
8
validate the reported QHEI scores. In other
9
words, which of these values are real? We
10
really don't know until we look at the
11
original data sheets, okay?
12
In a follow-up question as to
13
whether or not Mr. Rankin would change his
14
recommendation based on the revised scores,
15
the response from Illinois EPA was we have
16
not fully examined all of the corrected
17
scores. And this is testimony by, and let me
18
pronounce, Smogor, is that correct, on April
19
23, 2008 on Page 212. Through the District
20
and through Mr. Andes, I have requested
21
copies of the original field data sheets to
22
evaluate how different metrics and submetrics
23
were scored. These requests apparently went
24
to Illinois EPA, and we understand that
45
1
Illinois EPA does not have copies of the
2
field data sheets inhouse, nor did they
3
review those original field data sheets prior
4
to submitting their proposal to the Board.
5
In my mind, if you have a question about what
6
these numbers are and if they're in the right
7
place, you need to go back to the original
8
field data sheets to see exactly how they
9
were scored to be sure what the values were,
10
which is correct. I don't know because I
11
don't have the original data. I mean I'm not
12
so good at adding things. You know, my
13
fingers and toes and if it goes above that I
14
sometimes have problems. But it would be a
15
very simple matter to go back to those
16
original field data sheets, add those things
17
up, and see what the real scores are.
18
A couple other notes tied to
19
that. QHEI scores have some value from a
20
very regional perspective. But, for me, the
21
real intrinsic value in these scores is what
22
are the submetric scores, what are the
23
metrics telling us. Because if you're
24
looking for restoration, improvement, or
46
1
enhancement opportunities, a value of a 54
2
doesn't tell you anything about, well, what
3
is it really that needs to be fixed in the
4
system, you know. What do you have to do to
5
reach a proposed aquatic life use. And if
6
you just have, well, it's a 54 and you say,
7
well, is it pool depth, is it pool riffle
8
sequences, are they there or are they absent.
9
Is there in-stream habitat structure there,
10
is it not there, what are the substrate
11
materials like? Well, the score is a 54.
12
That doesn't tell you anything. And I don't
13
see how you could possibly use the QHEI
14
scores to do any sort of habitat assessment
15
without actually looking at the field data
16
sheets to see exactly what's going on at each
17
of these sites in part because, No. 1, you
18
need to assess whether or not the problems
19
with the habitat are systemic, are they
20
across the entire watershed in the entire
21
system or are they a very local phenomenon.
22
And those scores are not necessarily going to
23
tell you that.
24
MS. DIERS: Do we get any value out of
47
1
these scores?
2
DR. MACKEY: As I said before, I think
3
you could use them for a general regional
4
macrohabitat assessment. But I think in
5
terms of actually trying to do -- to take
6
action or to determine what the actual
7
problems are, just a number is not going to
8
do it -- is not going to really help you out.
9
I would use the analogy of a
10
stock market. So I don't know what it is
11
today, I'm not sure I want to know what it's
12
doing today, but the stock market, a value of
13
8,000, okay? Well, six months from now it
14
may be up at 10,000. Then you say, okay,
15
well, what component of the economy has
16
really taken off here? Well, the stock
17
market scores, it's 8,000. The DOW is at
18
10,000. Those numbers are basically
19
meaningless, just an index. It doesn't tell
20
you about the underlying fundamental
21
structure or what the different components
22
are doing. It's the analogy, you just take
23
it right back to habitat. You need to
24
understand the details, you need to
48
1
understand what is happening with each of the
2
individual submetrics here.
3
MR. ANDES: Dr. Mackey, on that point,
4
you talked a little bit about reasons why you
5
might have questioned about the particular
6
new corrected values for those sites on your
7
chart.
8
DR. MACKEY: Sure. I'm going to ask
9
the Board, have any of you been on a boat on
10
the waterway or actually seen portions of the
11
waterway at all? I'm just curious.
12
HEARING OFFICER TIPSORD: The Board
13
has their offices in the Thompson Center, so
14
I think it's safe to say the board members --
15
DR. MACKEY: You've seen it. Okay. I
16
don't know. I'm clueless, all right, at
17
least in that respect. The reason I'm saying
18
it is that if right now with the corrected
19
revised scores, if you look at state
20
Route 83, the bridge at state Route 83 across
21
the Cal-Sag Channel, that right now, based on
22
the QHEI scores, is the best habitat
23
available in the CAWS. Have you seen state
24
Route 83 on the Cal-Sag Channel? Have you
49
1
looked at that area?
2
HEARING OFFICER TIPSORD: You need to
3
tell us about that area.
4
DR. MACKEY: Okay. Here we go. Okay.
5
It's on the Cal-Sag channel, the channel is
6
about 260 feet wide. Water depths there are
7
running around 12 feet. On the north side of
8
the channel for many miles there is a
9
vertical concrete bulkhead that rises up
10
about 8 to 10 feet off the water surface, and
11
there is silt that comes right up to the base
12
of that. So it's a straight-walled channel,
13
and there's not a whole heck of a lot of
14
habitat there. On the south side of the
15
channel, you have large limestone blocks,
16
bedrock slabs, some bedrock exposed. The
17
smallest blocks are, at least that I've
18
observed there, are in the order of 12 to 16
19
inches across. There is a small, very narrow
20
littoral zone, which is what I believe
21
Illinois EPA calls it. Water depths there
22
range from probably about two feet, and then
23
it just sort of slopes right down and grades
24
into a silt area along the flanks of both
50
1
sides of the channel. And based on the
2
side-scan sonar data, what you see in the
3
center part of the channel is bedrock. It's
4
exposed bedrock within the lower areas, those
5
small pockets are filled with silt, okay? So
6
you basically have, in terms of in-stream
7
substrates, you have basically two types of
8
substrate present there. You have hard
9
bedrock surface, you have silts on the flanks
10
of the channel and filling in some of the
11
lower impressions. And then on the north
12
side of the channel you have a concrete
13
bulkhead, and on the south side you have this
14
very coarse, it's almost like a -- It's
15
really not a revetment. It's, I think,
16
construction debris and material that was
17
left behind as people -- the channel was
18
built. And we have an exhibit that shows
19
some of these features. In terms of the
20
riparian habitat associated with it, it's a
21
good 12 to 15 feet up off the water column,
22
almost a vertical area.
23
MR. ANDES: Hold up for a minute.
24
DR. MACKEY: Sure. There is a
51
1
riparian area --
2
HEARING OFFICER TIPSORD: Dr. Mackey,
3
let's mark this first.
4
DR. MACKEY: I'm getting excited about
5
this. Okay.
6
HEARING OFFICER TIPSORD: If there's
7
no objection, I've been handed Calumet Sag
8
Channel Side-Scan Sonar Data State Route 83
9
Sampling Site. If there's no objection, I
10
will mark in as Exhibit 182.
11
Seeing none, it's Exhibit 182.
12
Go ahead, Dr. Mackey.
13
DR. MACKEY: Okay. We'll get to the
14
exhibit in just a second. With respect to
15
riparian habitat, there is some trees and
16
waterway available, but they're well back
17
from the channel. There is no overhanging
18
trees or brush anywhere near the water
19
surface or the water itself. And, in fact,
20
based on the side-scan data there is very
21
little wood at the bottom of the channel. A
22
little further to the east of here, though, I
23
did find a car in the center of the channel,
24
so we'll discuss that another time.
52
1
The exhibit that was just
2
handed out is an example of a side-scan sonar
3
data, and this was collected probably about
4
three weeks ago, three to four weeks ago.
5
And what I'm showing here is -- and these are
6
basically segments that are on the order of
7
several hundreds of feet long or greater.
8
And it's an area, on the right-hand panel
9
here, it's an area about a half mile east on
10
the Cal-Sag Channel of the Route 83 bridge.
11
And the panel on the left-hand side is an
12
area that it's about a half mile, located
13
about a half mile to the west. So I'm just
14
trying to give you a feel for what it's like.
15
And we can produce a continuous strip of the
16
entire channel bottom. What you're looking
17
at is side-scan sonar data. It's like an
18
aerial photograph, okay, except it's made
19
with sound rather than light. So it allows
20
us to pick up features on the bottom. We can
21
see shipwrecks, you can see cars, you can see
22
bedrock, you can see sand, you can see
23
riffles. And in one pass, I can basically
24
scan the entire width of the channel. So I
53
1
see what's on the bottom. And it's a very,
2
very useful tool for mapping different types
3
of substrate materials and different types of
4
structure on the bottom. This is what I do
5
for a living all over the Great Lakes, okay.
6
And on the right-hand side here, let's look
7
at the right panel. This is oriented
8
properly. Again, the channel is 260 feet
9
wide, so it's -- that's the scale that we're
10
looking at. Both along the north edge and
11
south edge of the channel we have a silt, and
12
you can see the bedrock area right in the
13
center of the channel exposed there. And, in
14
fact, if you look, there is sort of irregular
15
pattern of a pock marks there, and I suspect
16
that those are old drill hole sites, and they
17
were going to blow it out but they just
18
walked away. But those are remnants of the
19
old drill hole sites.
20
On the north shore, that black
21
line, is that vertical concrete wall. That's
22
what it looks like, a very hard surface
23
acoustically. So it will show up black on
24
this particular image. And on the south
54
1
shore you can actually see that coarse
2
shoreline. And the thing is is that you have
3
to consider the scale of this. These blocks
4
that you're seeing here are quite large, and
5
look at the scale. That's -- This channel is
6
260 feet wide, and those blocks, you can
7
discern them. So you know that those have to
8
be several feet across. On the left-hand
9
side you can see the same sort of features,
10
not quite as dramatic. Again, you have silt
11
along the edges of the channel, and in the
12
center you have bedrock exposed. And I
13
expect that's in part due to the prop wash
14
effects. The interesting thing on this is
15
that there is a swamp boat. You can see
16
that, sort of that block mass up there is
17
actually a steel, a small steel barge which
18
has actually sunk. The only thing that's
19
sticking out of the water is the cabin. And
20
then to the right, even though it's very
21
small in this case, there's actually a vessel
22
that you don't even know there, that's a
23
sunken vessel sitting on the bottom. So that
24
gives you an idea of the scale.
55
1
MR. ANDES: If I can ask, so under the
2
corrected scores, this is the best habitat in
3
the CAWS?
4
DR. MACKEY: That's correct, right.
5
Now, I don't have a similar image. I have
6
collected side-scan sonar data up on the
7
north branch and the North Shore Channel.
8
The habitat conditions there are considerably
9
different. It is, in many areas, heavily
10
vegetated. There are overhanging trees. The
11
channel isn't quite as deep. It's about
12
eight to ten feet deep, and the side-scan
13
sonar data shows three or four different
14
substrate types there. It appears that you
15
have sand, you have cobbles and boulders, you
16
have silt. So you have a juxtaposition of
17
different types of substrate materials which
18
may actually be somewhat useful in terms of
19
you have potential spawning habitat, nursery
20
habitat, or just refuser (ph.) for different
21
types of organisms.
22
MR. ANDES: And that Sheridan Road
23
site in the North Shore Channel I understand
24
was the highest quality reference stream for
56
1
this assessment by IEPA?
2
DR. MACKEY: It was done by the UA --
3
by the CAWS UAA contractor, yes. That --
4
Those sites also have some of the highest
5
IBI, fish IBI scores within the CAWS as well.
6
So I have some issues. Even if Ed Rankin's
7
scores, if we get the original field data
8
sheets and we look at them and, indeed, he
9
ranks this as a 54, I would have serious
10
concerns about that based on this
11
information. All due respect to Ed Rankin.
12
He did not have access to a side-scan sonar.
13
And if I understand correctly, Sam Dennison,
14
who I believe will be a witness coming up
15
shortly or sometime down the road, depending
16
how long it takes to get through this, Sam
17
Dennison was with Ed when they actually did
18
the habitat assessments. And the way they
19
did the habitat assessments is they used a
20
steel rod and they just sort of drip it
21
around and were poking the bottom. And that
22
can be a very effective technique, but it is
23
very limited in terms of being able to
24
spatially connect all the different types of
57
1
substrates together.
2
MR. ANDES: So in terms of where we're
3
standing here, what you're saying is the
4
corrected scores indicate that the Cal-Sag
5
channel at Route 83 is the best habitat in
6
the CAWS, and you have reason to doubt that.
7
Am I right?
8
DR. MACKEY: I would not call this the
9
best habitat that I have observed in the
10
CAWS.
11
MR. ANDES: Now let's switch to north
12
shore channel at Sheridan Road which is used
13
as the highest quality habitat in the CAWS.
14
And what do the new corrected values tell you
15
there?
16
DR. MACKEY: There was a significant
17
drop in those scores, and they basically
18
went, I believe, from a fair habitat quality
19
to a poor habitat quality.
20
MR. ANDES: And what would that do to
21
the Agency's assessment if their referenced
22
highest quality stream is, in fact, in the
23
poor range?
24
DR. MACKEY: Well, it would
58
1
certainly -- I would have some questions
2
about the IBI scores from a comparative
3
perspective. In other words, one of the
4
reasons that you establish a reference stream
5
for an area is to say you try to find the
6
highest quality stream that you can to say
7
this is what you should be able to attain.
8
And it is the standard by which you measured
9
the other IBI scores in terms of the, let's
10
say, fish communities, okay? And if, for
11
some reason, your referenced stream really
12
doesn't represent the best of the best, then
13
your comparisons are not going to be terribly
14
meaningful in terms of when you're trying to
15
evaluate one area versus another, or in terms
16
of determining what is actually potentially
17
attainable in the system. The IBI system, as
18
I understand it, again, this is a more of a
19
biological indeces to which I do not claim to
20
be an expert. But from my understanding, and
21
as described in the CAWS UAA report as they
22
describe the IBI process, the establishment
23
of a reference stream is an important
24
component of that analysis for comparison.
59
1
MS. DIERS: Is there too much silt for
2
the water body to be unable to attain IEPA's
3
proposed aquatic life uses?
4
DR. MACKEY: It depends on where you
5
are in the system. I would probably say no.
6
And you have exposed bedrock here, and there
7
are areas -- I think there are some areas in
8
the CAWS where you may have sands, from what
9
I understand. I have not imaged that yet. I
10
have not been around the O'Brien Lochs and
11
whatever. But I don't believe that is a lack
12
of -- that is too much silt. I believe it's
13
a problem of not having enough of a diversity
14
of a substrate material. Let's go down a
15
slightly different path here. You've got me
16
on a roll here, okay, guys? This is
17
important from a geological perspective.
18
There's this concept, it's called provenance
19
in geology, okay? And what it means, it's a
20
very simple concept. And if you have a river
21
and it's flowing across to a watershed, the
22
river has plenty of energy, it has stream
23
pumps, and it can transport materials that
24
are available to it. And that's the key is
60
1
the materials that are available to it. In
2
northwest Ohio when you look at the Maumee or
3
the Sandusky River systems, you will find
4
that that's an old glacial lake plane with
5
virtually no sand available in that system;
6
very, very small percentage of the sand that
7
these rivers flow through. And so it's
8
unreasonable to expect these systems to be
9
sand rich. In other words, they have very
10
high suspend loads because the only material
11
available for them to transport is either
12
clay or silt because that's all that's there.
13
So let's switch that concept back to the
14
CAWS, all right? In many areas of the CAWS,
15
you've got limestone and bedrock. This thing
16
was carved out of bedrock, all right? Not
17
easily erodible material. What other
18
materials are available to be transported in
19
the system? Where is the sand going to come
20
from? Where is there sand exposed in the
21
CAWS that can be eroded by flows to actually
22
put sand in the system? Now, there is sand
23
in the system, I believe, but much of that
24
sand probably came from earlier this last
61
1
century before we put road salt on. We
2
probably sanded the streets and all that sand
3
went into the storm water sewers and
4
eventually worked its way into the CAWS. But
5
it's not a huge volume of sand. So if you
6
have no sand to transport, there's not going
7
to be any sand available to help construct
8
habitat. The same thing with gravel and
9
coarse sand and all of those really need
10
substrates that you need to perform, to
11
create spawning habitat if that's what you're
12
interested in doing here. Where is it going
13
to come from? The flows in the CAWS system
14
are highly regulated, all right? And
15
typically in a gravel bed stream you have
16
rock that's being tumbled and rolled because
17
of high flow velocities, and they get chipped
18
off and the rock gradually gets smaller and
19
smaller. And I think, based on the flows in
20
the Cal-Sag or in the San Ship or some of
21
these other channels, we're going to be
22
around for a long time before we see a lot of
23
the bedrock around here broken down into
24
gravel and coarse sand material. It's just
62
1
not going to happen in our lifetimes. And so
2
we have a severe limitation in terms of the
3
materials available to create the different
4
types of substrates and different types of
5
habitat structure in the CAWS. Okay.
6
MS. DIERS: Where did the UAA
7
contractors call the North Shore Channel a
8
reference stream?
9
DR. MACKEY: I believe if you looked
10
at -- I'll have to see if I can find the
11
page, but the Sheridan Road site was defined
12
as the reference stream for the CAWS system,
13
and I believe it's --
14
MR. ANDES: We can look for the page
15
and cite it later.
16
MS. DIERS: That's fine.
17
DR. MACKEY: It's explicitly stated.
18
They talk about the importance of the
19
reference streams and how this was the best
20
that they could do in the CAWS because this
21
was predominantly an artificial system.
22
MS. DIERS: I want to go back to QHEI.
23
Were high and moderate influence attributes
24
included along with the QHEI in Rankin's
63
1
report which was Attachment A?
2
DR. MACKEY: Yes.
3
MS. DIERS: So it's more than just a
4
number? I mean they're out there doing
5
observations, correct?
6
DR. MACKEY: Yes.
7
HEARING OFFICER TIPSORD: Miss Diers,
8
Attachment A, are you referring to the UAA
9
report?
10
MS. DIERS: Attachment R, I'm sorry,
11
was Rankin.
12
DR. MACKEY: I might point out that
13
that's Table 2, I believe, that you were
14
referring to. That has a number of different
15
metrics and submetrics there, but it doesn't
16
provide any sort of a meaningful waiting in
17
terms of what's there and what's not there at
18
the sites. There's a series of characters
19
that show up in it, but there are no scores,
20
per se.
21
MS. DEXTER: What parts of the CAWS
22
have the limestone channel that you
23
described?
24
DR. MACKEY: Bear in mind that I've
64
1
not been everywhere on the CAWS. What is
2
certainly a significant portion of the
3
Cal-Sag Channel has been cut out of bedrock.
4
The southern -- significant portion of the
5
southern section of the Sanitary and Ship
6
Canal has been disposed, and those are the
7
two primary areas where bedrock appears to be
8
exposed in the banks and/or where channels
9
were cut through bedrock.
10
MS. DEXTER: Did you see any evidence
11
that the limestone is eroding along the
12
sides?
13
MR. MACKEY: Yes.
14
MS. DEXTER: All right. And I'm not
15
sure I understood you correctly when you said
16
that there were no trees along the Cal-Sag
17
channel. Can you describe what you mean by
18
that?
19
DR. MACKEY: What I mean by that, I'm
20
referencing that with respect to water, the
21
aquatic system. There are many trees -- in
22
fact, I believe there's some forest
23
preserves, and it's really a pretty neat
24
area. But those trees are sitting back off
65
1
the channel. They're not trees that are
2
hanging over into the water for the most
3
part, nor did I observe much in the way of
4
any debris. I think maybe there were --
5
maybe I found three trees, trunks, if you
6
want, on the bottom of the Cal-Sag Channel in
7
the two-thirds of the area that I went.
8
There's not much wooded debris there at all.
9
MS. DEXTER: You wouldn't say that
10
there were no trees leaning over the Cal-Sag
11
Channel?
12
DR. MACKEY: No. I don't think I
13
would make -- I'm sure you could probably
14
point someplace that there's a branch or two
15
that hang over, but it's not the, let's say,
16
a more, if you're thinking about shading
17
effects or things of this sort, it's not the
18
type of thing where the trees are actually in
19
the water and providing some sort of shore
20
line habitat structure in water, okay?
21
MS. DEXTER: And on your side-scan
22
sonar data in Exhibit 182, you have a
23
littoral zone here indicated. How wide would
24
you say that is?
66
1
DR. MACKEY: In this location, my
2
guess is probably 18 to 20 feet apart.
3
MS. DEXTER: All right. And do you
4
know whether fish tend to live in the center
5
of a channel or if they might migrate towards
6
the sides of the channel?
7
DR. MACKEY: I don't know. I don't
8
know the answer to that question. I'm not a
9
fisheries biologist.
10
MS. DEXTER: Thanks.
11
MS. DIERS: I think we're back to
12
Question 29 in the prefiled questions. On
13
Page 6 of your prefiled testimony you state,
14
"These new aquatic life tiers were based on a
15
comparison of IBI percentile scores and QHEI
16
scores at each sample location." Are you
17
aware that it was discussed at the hearings
18
and that Illinois EPA indicated that current
19
biological conditions were not the primary
20
criteria used to determine the proposed
21
aquatic life uses?
22
DR. MACKEY: Actually, I'm unsure
23
exactly what methods or criteria were used by
24
Illinois EPA to determine the proposed
67
1
aquatic life uses. In the hearing testimony,
2
Illinois EPA stated that they used habitat,
3
for example, the QHEI scores, and individual
4
attributes to determine the attainable
5
biological potential of the waterway. And
6
that's in Smogor's testimony on January 29,
7
2008, on Pages 238, 241, and 243. Illinois
8
EPA also stated that, quote, we designate
9
uses based on existing habitat and some other
10
factors and then we set criteria to protect
11
those uses. And that's in testimony by
12
Sulski on January 29, 2008, on Pages 246 and
13
247. And later testimony, Illinois EPA
14
indicated that a combination of habitat and
15
fish IBI scores were used to categorize
16
aquatic life uses within the CAWS. And that
17
was testimony by Sulski on March 10, 2008,
18
Pages 14 to 18. Then the following
19
testimony, Illinois EPA indicated that they
20
used a weight of evidence approach and/or a
21
weight of evidence judgment call that
22
includes the use of both habitat QHEI scores
23
and biological condition, which are the fish
24
IBI scores maybe with some MBI data thrown in
68
1
as well. That's unclear. To categorize
2
aquatic life uses within the CAWS. And
3
that's in Sulski -- testimony by Sulski on
4
March 10, 2008, Pages 20 to 21, and testimony
5
by Sulski on March 10, as well, on Page 30.
6
From what I can gather from
7
the testimony, the process used by Illinois
8
EPA was not based on a clear scientific
9
methodology, but rather was based more on
10
general perceptions as to what areas had good
11
aquatic life potential and what areas had
12
poor aquatic life potential.
13
In answer to your question,
14
the IBI scores presented in the CAWS UAA
15
report were not derived from current data,
16
but represent a range of historic IBI values
17
from fish data collected by the District
18
during the period 1992 through 2002, and
19
that's in the CAWS UAA report on Page 5-8.
20
However, in IEPA's statements of reasons,
21
this is the section on aquatic life use
22
designations, IEPA explicitly describes
23
ranges of QHEI and IBI scores for Aquatic
24
Life Use B and Aquatic Life Use A
69
1
designations in the CAWS. Moreover, the
2
prefiled testimony of Sulski on Pages 16 and
3
17 and the hearing testimony of Smogor on
4
Page 238, 241, and 243, the dates are the
5
same as we had earlier. On Sulski on Pages
6
14 and 18, and Essig on Pages 19 and 21,
7
clearly describe the ranges and uses of QHEI
8
and IBI values and the use of Figure 5-2 of
9
the CAWS UAA report and how those values
10
justify the distribution of Aquatic Life Use
11
A and B waters.
12
MS. WILLIAMS: Excuse me, Mr. Mackey.
13
You lost me when you said the dates are the
14
same.
15
DR. MACKEY: I'm sorry. In my text
16
here I don't have the dates that were set
17
testimony. It's the same dates that I
18
referred to earlier when I was talking about
19
the testimony --
20
HEARING OFFICER TIPSORD: That
21
April 23?
22
DR. MACKEY: Yes. I believe so.
23
MR. ANDES: March 10.
24
MS. WILLIAMS: You referred to several
70
1
dates. That's why I'm confused.
2
DR. MACKEY: Okay.
3
MR. ANDES: I believe March 10.
4
DR. MACKEY: March 10. I believe it's
5
March 10.
6
MR. ANDES: 2008. We can double-check
7
that.
8
DR. MACKEY: We're going to get there
9
in a few seconds. Let's go back to the
10
handout on the offering QHEI scores. We'll
11
look at the top --
12
HEARING OFFICER TIPSORD: Exhibit 181?
13
DR. MACKEY: Yes. And the thing I
14
want to point out here, as I indicated
15
before, what I'm going to ask you to do at
16
this time is to ignore all the big black
17
circles, the QHEI scores. Because right now
18
the question is about IBI scores and whether
19
or not they were used for the aquatic use
20
designation. What I want you to look at are
21
the box-and-whisker plots. Those are the
22
rectangles and these are -- and the error
23
bars associated with the IBI scores. That's
24
the lighter things behind the block dots.
71
1
And you'll note that I have highlighted in
2
green the A designation waters, and in sort
3
of red or orange color, the B designation
4
waters. And look what the UAA contractor did
5
was if you will see on the far left side, the
6
Sheridan Road site, that is the reference
7
site. So what they did is took the 75th
8
percentile of that site and said that is
9
going to basically be the boundary for, in
10
essence, general use waters. In other words,
11
IBI scores higher than that are general use
12
waters. And then if you look at the 25th
13
percentile line, that's a black, the black
14
horizontal line that says 75th percentile IBI
15
of all data within the CAWS. What they've
16
done is looked at all of the historic IBI
17
data and then calculated the 25th percentile
18
from all of the data sets, and that's this
19
lower line, okay, the lower black horizontal
20
line. Just bear with me here. Because where
21
I want to go is to basically say that with
22
two exceptions, that the A and B designations
23
are almost an exact match for where the IBI
24
scores either fall at or above this 25th
72
1
percent -- the 75th percentile IBI for all of
2
the CAWS versus the areas that don't, that
3
fall below the two exceptions are outlined in
4
the red boxes. One is the inner harbor area
5
where you have very low habitat scores, but
6
you have very high IBI scores. And I suspect
7
that is because of proximity to Lake Michigan
8
that you're probably getting the higher fish
9
IBIs because you actually got some lake water
10
there or there is some lake access at one
11
time or another. And at the Cicero Ave.
12
score, and this is interesting, this has some
13
of the -- not the lowest, but certainly the
14
lower IBI scores, and yet Illinois EPA has
15
designated that as an aquatic Use A water.
16
The point is is that there is
17
a very, very good correspondence between what
18
the UAA contractor did here in terms of the
19
percentile analysis and the IBI scores. It's
20
a virtual lay-down for how they actually did,
21
how they actually had geographically
22
designated aquatic life Use A and B waters.
23
MS. DIERS: Did Illinois EPA testify
24
that they exclusively relied on Figure 5.2 in
73
1
the CAWS UAA?
2
DR. MACKEY: No, they did not.
3
MS. DIERS: I'm going to go to
4
prefiled Question 31. In what way and for
5
what purpose do you believe the Illinois EPA
6
relied almost exclusively on fish IBI scores?
7
DR. MACKEY: That's Question 31.
8
Well, I basically would -- I don't want to
9
give the same testimony again, but I think
10
that, in essence, this upper figure here
11
entitled original QHEI scores, again,
12
basically tells the story that there is a
13
very, very good correspondence between the A
14
and B water designations. It's almost an
15
exact match for the variations in the IBI
16
scores here.
17
MS. DIERS: Question 32: In what way
18
and for what purpose do you believe that the
19
Illinois EPA adopted the percentile approach
20
to which you refer?
21
DR. MACKEY: As I stated in my prior
22
testimony, I believe you can see that the
23
75th percentile IBI line for all of the data
24
within the CAWS seems to be a very clear sort
74
1
of demarcation line, if you want, between the
2
A and B waters as proposed by Illinois EPA.
3
MS. DIERS: Question 33: On Page 6 of
4
your prefiled testimony, you mention that
5
spatial distribution of the CAWS sites
6
selected for QHEI analysis in 2004 were not
7
based on an appropriate statistical sample
8
design. Does the QHEI data from these sites
9
provide no useful information for determining
10
the biological potential of the CAWS?
11
DR. MACKEY: All right. I have real
12
concerns if these are the only -- if the QHEI
13
data were the only habitat data used to
14
determine the biological potential in the
15
CAWS. And that is assuming that Illinois EPA
16
did, indeed, use the QHEI data and habitat.
17
Primarily because the QHEI was designed to be
18
applied to natural systems, not artificial
19
systems such as the CAWS. Rankin in 1989,
20
they were testing and developing this whole
21
sort of indicator system described in the
22
QHEI as a macro scale approach that uses
23
qualitative metrics to describe the, quote,
24
emergent properties of habitat. Examples of
75
1
emergent properties would be sinuosity or
2
pool or riffle development. These are the
3
large macro habitat features, okay. This is
4
what QHEI is designed to look at. However,
5
because many of the metrics and submetrics
6
are held constant throughout most of the
7
CAWS, only a few of the emergent properties
8
of habitat or the QHEI metrics are actually
9
used to calculate QHEI scores. And I believe
10
we have an exhibit for this. The point is
11
here -- sorry.
12
HEARING OFFICER TIPSORD: I've been
13
handed QHEI metrics in the CAWS. If there's
14
no objection, we will mark this as
15
Exhibit 183.
16
Seeing none, it's Exhibit 183.
17
DR. MACKEY: My printer only has three
18
colors: Black, red, and green, so.
19
Where I'm going with this is
20
that the QHEI is a metric or an indicator
21
that's designed for natural systems, and
22
primarily for degraded natural systems. The
23
CAWS is an artificial system. The CAWS was
24
never a degraded system. It never had high
76
1
quality habitat to begin with because it's
2
basically equivalent to a concrete pipe,
3
okay, in many respects. And because many of
4
the characteristics of the CAWS are pretty
5
much constant or are the same throughout most
6
of the water, not all, but most of the
7
waterway, many of the submetrics here are
8
basically the same throughout the entire
9
waterway. And this is another reason why
10
it's really important to get or take a look
11
at those original field data sheets to see
12
exactly what different submetrics were held
13
constant throughout the system and/or how
14
much did those scores vary. Because right
15
now we really don't know. I have no idea
16
between one site to the next what was it that
17
was actually varied. So if we take a look at
18
this exhibit entitled QHEI Metrics in the
19
CAWS, and there's some text to it which is of
20
interest, but really the table is the key.
21
What I have attempted to do here is to break
22
out the major QHEI metrics, and it's in the
23
very left-hand column. There are really six
24
major ones, okay. And then the next column
77
1
over called metric component rates out the
2
different factors that are sort of summed
3
together that make that total QHEI metric,
4
and I've shown you what the scoring ranges
5
are. And what that means is that you
6
actually have the ability to assess which of
7
these components is more important than
8
others relative to the potential range of
9
scores. And it also, the next column shows
10
the metric maximum score. In other words,
11
what is the max -- if this is -- if this is
12
God's gift to the earth in terms of habitat,
13
this, the -- you know, you end up with a
14
total score of 100, a QHEI score of 100, and
15
this is what each of these components, the
16
maximum values, could be. And then on the
17
far right-hand side what I've done is for the
18
CAWS, is I have basically identified where I
19
believe these metrics were in essence held
20
constant throughout most of the waterway
21
system. And those are the areas that are in
22
red. So if they are being held constant, the
23
only changes or variation that you get in the
24
calculated QHEI scores are based on two
78
1
sub -- basically on the two QHEI metrics:
2
No. 1 and 2, substrate and instream cover,
3
and to a lesser extent perhaps some
4
submetrics of the riparian zone. I don't
5
have the page number, but in the UAA, the
6
CAWS UAA report, I do know that they talk
7
about gradient being held constant. And the
8
reason -- where I inferred whether or not
9
these values varied is that if you look at
10
Table 2 in Rankin's report where you talk
11
about the moderate influence and high
12
influence and low influence and you see the
13
individual submetrics, for many of these
14
things, the values are the same for every
15
site all the way through. And that means
16
that more than likely they're being held
17
constant for the entire waterway. So these
18
scores are -- the QHEI scores, if they're
19
calculated properly, are based on just two,
20
possibly three components, and all of the
21
rest of the values are held constant. This
22
is one of the reasons why the QHEI has some
23
severe limitations in this type of a system.
24
It was not designed for an artificial system,
79
1
okay.
2
MS. DIERS: So if we're not supposed
3
to use the QHEI for this type of system, what
4
are we supposed to use?
5
DR. MACKEY: Well, that's what the
6
habitat evaluation improvement study is
7
attempting to do. It's currently ongoing and
8
funded by the District. It's taking a
9
good -- as I understand it, it's taking a
10
good, hard look at physical habitat in this
11
system, a more detailed sampling regimen.
12
They have done a number of things in addition
13
that I think are very important in terms of
14
collecting additional habitat data, and I'm
15
not one who wants to see studies going on
16
forever, but you've got to have some minimum
17
information. And I don't think we even have
18
the minimum information yet necessary to
19
adequately characterize the habitat in the
20
system. The idea is, in the study, is to do
21
the physical habitat assessment. I
22
understand that they're looking at some
23
biological data as well and they hope to
24
integrate that together and actually develop
80
1
an index that may be much more appropriate
2
for a highly urbanized or an artificial
3
system such as the CAWS rather than using a
4
metric or an indeces that was developed for
5
natural system, a natural system that has
6
been degraded. They're two completely
7
different animals.
8
MS. DIERS: So what the habitat study
9
will be developing is something that's never
10
been done in the United States; is that
11
correct?
12
DR. MACKEY: That's probably correct.
13
MR. ANDES: Do we want to take a
14
break?
15
HEARING OFFICER TIPSORD: Yes. Sure.
16
Ten minutes.
17
(Short break taken.)
18
HEARING OFFICER TIPSORD: We can go
19
back on the record. Okay. We're back on the
20
record. Miss Diers?
21
MS. DIERS: I think we're on
22
Question 34. What statistical design
23
guarantees that additional physical habitat
24
information from the CAWS will provide more
81
1
accurate characterization of the biological
2
potential of the CAWS than does the currently
3
available data?
4
DR. MACKEY: Okay. As you may know, I
5
have some very strong concerns about the
6
habitat data that was used as part of this
7
physical habitat assessment used as part of
8
this aquatic use designation. The habitat
9
sampling sites used in CAWS UAA report and in
10
the Illinois EPA analyses were based on
11
existing Water Reclamation District fish
12
sampling sites. And I'm referring
13
specifically to, I think it's Attachment R of
14
the Rankin report. And in terms of what I
15
would do, in other words, to improve this,
16
the sampling protocols, is first in addition
17
to using the sites that were selected for the
18
biological sampling, I would also select
19
additional sites based on the inferred
20
physical processes and anticipated
21
differences in substrate distribution and/or
22
in-stream habitat structure within the CAWS.
23
In other words, I would have looked at the
24
system and said where might I expect to see
82
1
some changes in substream, where might I
2
expect to see accumulations of woody debris
3
or other types of in-stream structure that
4
may be important from a habitat perspective.
5
And I would also use remote sensing and
6
geophysical tools such as side-scan sonar,
7
which you've seen a small example already, to
8
continuously map the entire submerged area of
9
the channel within the CAWS. Then I would
10
use the acoustic data to select additional
11
sampling sites to confirm substrate materials
12
and to identify areas with in-stream and bank
13
edge habitat structure. If water clarity is
14
appropriate, I would attempt to validate
15
substrate and instream bank edge habitats
16
with underwater video. I own underwater
17
video cameras and use them on a regular basis
18
on Lake Michigan and the other great lakes in
19
order to validate what I see with the
20
side-scan sonar. Unfortunately, having been
21
on the CAWS waterway, it's -- I'm not sure
22
what the second depths are, but it's very
23
turbid, and there's not a lot of light at
24
that depth. So I don't think the underwater
83
1
camera would work. But you can do some
2
additional sampling work either with a Ponar
3
samplers or other types of sampling devices
4
to validate what you see on the side-scan
5
data.
6
Second -- And that takes care
7
of the instream habitat and substrate data
8
which is really, really important as we know
9
the key components as part of the analysis.
10
Second, I would undertake a comprehensive
11
inventory of the CAWS shore line where I
12
would document type, composition, location,
13
distribution, and condition of shore line and
14
bank edge features in the CAWS. And I would
15
use these data to identify and map the
16
location of the potential bank edge habitat
17
structure. In other words, for example, some
18
of Illinois EPA's littoral zones, I've taken
19
a really good close look at those areas and
20
to assess the pattern and juxtaposition of
21
different type of bank edge habitats. The
22
key thing here is that, and this is a real
23
problem I have with the proship (ph.) Rankin
24
used is that they didn't look at what's along
84
1
the banks. When you look at aquatic habitat
2
in these channel systems, you either have
3
structural or materials on the bottom of the
4
channel or on the sides of the channel. You
5
know, what's sitting up here hundreds of feet
6
away is not going to make any difference for
7
the most part for the fish that are in the
8
water. And so if you're just going to look
9
at what's on the bottom of the channel and
10
not look at what's along the sides or in the
11
banks, you're missing a big part of the
12
picture. Let's use an example here. On the
13
Sanitary and Ship Canal you have the bedrock
14
walls that goes straight down, okay? And I
15
will tell you there actually is some
16
structure down at the bottom. We'll talk
17
about that another time. But from there you
18
transition into different types of materials,
19
more I'm going to call it alluvial materials
20
and those materials erode fairly easily or
21
have a potential to. So those banks have
22
been armored and they've been armored with
23
different types of materials. In many places
24
it's concrete, in many cases it's sheet piled
85
1
walls, vertical, but in many places and some
2
extensive places they construct what they
3
call revetments. These are large blocks of
4
stone or rock or even concrete slabs that are
5
sort of filed up along the side at a fairly
6
steep angle to protect shore line from
7
erosion. And what most people don't remember
8
is that what you see up at the surface, that
9
extends down below the water surface well out
10
into the channel. And actually I've mapped a
11
fair number of those areas with the side-scan
12
sonar. And the point is is that you can
13
infer what areas may have additional habitat
14
potential by doing this sort of comprehensive
15
shore line inventory. This is really
16
important, and this is something that was not
17
done as part of this habitat assessment.
18
And, third, what I would do is
19
I would integrate shore line assessment, bank
20
edge materials, and what you see just above
21
the water and just below the water with the
22
in-stream habitat. And you build a series of
23
data layers and you put them together, and
24
that allows you to actually connect the two.
86
1
I see this type of thing here along the bank
2
edge, this is generally the type of thing
3
that I see down in the channel itself; not
4
only in the bank edge, but in the instream
5
portions as well. And I would use that data
6
to construct a set of data layers that can be
7
used to illustrate the type, quality,
8
location, distribution, and connectivity of
9
these different types of habitats. And the
10
connectivity issue is really, really
11
important. Because you need to understand if
12
you have a habitat of a certain type here,
13
what's adjacent to it. And is there a
14
reasonable expectation that organisms that
15
use this may also use this for the purpose of
16
the adjacent habitats for a different
17
purpose. Without understanding that habitat
18
juxtaposition and connectivity, you really
19
don't have an understanding of habitat at
20
all. In fact, it's just a pile of rocks
21
sitting in the water.
22
MS. DIERS: So is your habitat
23
evaluation something that you're involved in,
24
is it using those recommendations that you
87
1
just stated?
2
DR. MACKEY: Yes.
3
MS. DIERS: And do your
4
recommendations involve a statistical design?
5
DR. MACKEY: The answer to that would
6
be no.
7
MR. ANDES: Can you clarify what you
8
mean by a statistical design?
9
DR. MACKEY: Well, a statistical
10
design is basically a mathematical process
11
whereby you have, let's say, a certain
12
expectation with certain distribution of,
13
let's say, organisms or whatever. And you
14
design, you use a statistical design to
15
sample that distribution in a way that is
16
statistically valid, such that the result
17
that you get are actually real and you can
18
actually assess the error and have some
19
competence in the results.
20
MS. DIERS: So what's wrong with the
21
District's choice sampling sites that the EPA
22
used in their evaluation?
23
DR. MACKEY: There is nothing wrong
24
with the District's choice of sampling
88
1
locations. But you have to remember that the
2
objectives and the reasons why, if I
3
understand correctly, those sites were
4
selected were not to perform a habitat
5
assessment. They were performed to evaluate
6
the aquatic communities associated -- that
7
may be associated with outfalls or other
8
specific characteristics within the waterway.
9
The reasons that those sites were selected
10
were different than for a habitat assessment.
11
MS. DIERS: Can you explain the
12
reasons they were selected?
13
DR. MACKEY: I cannot. I would refer
14
you to someone who works with the District
15
and/or has responsibility for those sampling
16
locations.
17
MS. DIERS: Do you know the bank edge
18
habitat requirements of aquatic life that can
19
potentially live in the CAWS?
20
DR. MACKEY: Well, No. 1, Illinois EPA
21
has not defined what the organisms are that
22
could potentially live in the CAWS. And,
23
No. 2, that is a biological question. When I
24
do my habitat assessment work, I am focussed
89
1
almost exclusively on the physical
2
characteristics. I am a physical scientist
3
by nature. But I always work cooperatively
4
with the fisheries biologist or with aquatic
5
ecologists, and I rely on their expertise.
6
And it's actually the integration of that
7
expertise with my expertise that usually ends
8
up with a sum that's greater than its parts
9
and a better understanding of the habitat.
10
MS. DIERS: How will this integration
11
work here?
12
MR. ANDES: This integration in terms
13
of the habitat study? Is that what you're
14
asking?
15
MS. DIERS: Yes, the habitat study of
16
the biology.
17
DR. MACKEY: That's actually going to
18
be done, I believe, internally by LimnoTech
19
probably in conjunction with the District.
20
And I have not been -- I have not had
21
discussions with LimnoTech as to actually how
22
that integration is going to work. So the
23
answer is I don't know.
24
MS. DIERS: Thank you. Prefiled
90
1
Question 36: On Page 7 of your prefiled
2
testimony, you state that the channel
3
morphology of flow characteristics of South
4
Branch Chicago River differ distinctively
5
from those of the South Fork of the South
6
Branch Chicago River. What information is
7
the basis for this conclusion?
8
DR. MACKEY: My conclusion is based on
9
several things: No. 1, I've been there. I
10
actually ran the side-scan sonar survey
11
through that confluence and also above the
12
creek until side-scan -- the fish, which was
13
totally in the water, actually was -- it was
14
like real crop agriculture on the bottom.
15
Let's put it this way. It was in the bottom
16
it was fairly shallow. So I have an idea of
17
what the actual bottom materials are and what
18
that structure actually looks like.
19
Second, the U.S. Army Corps of
20
Engineers, and this also has -- and the USGS,
21
I believe, both have performed detailed
22
bathymetric surveys within Bubbly Creek or
23
within the South Fork of the Chicago River as
24
they have also within the Sanitary and Ship
91
1
Canal. And there are some very clear
2
differences based on that bathymetric data in
3
terms of the bathymetry within the two
4
different channels.
5
Third, also based in part on
6
the field examination, and also if you look
7
at the NOAA navigation charts which extend
8
down through the Chicago waterway in that
9
South Fork area, there are clear differences
10
in water depth marked on the navigation
11
charts and also clear differences that show
12
areas that are generally navigable and not
13
navigable. It's very clear if you've been
14
into the Bubbly Creek area, South Fork area,
15
that it's very difficult to get some of those
16
large barges up that system. It's very, very
17
narrow. So it's not subject to commercial
18
navigation. So there are some substantive
19
differences.
20
MS. WILLIAMS: Did you say NOAA
21
navigation charts? I'm sorry to interrupt.
22
MR. MACKEY: NOAA, the National
23
Oceanic and Atmospheric Administration. They
24
generally, they generate virtually all of the
92
1
navigation charts used in the lakes and in
2
many of the navigable portion of the rivers.
3
MS. DIERS: Question 37: On Page 7 of
4
your prefiled testimony, you criticize the
5
Illinois EPA proposal for not including a
6
comprehensive habitat assessment that
7
includes knowing the relative percentage,
8
location, pattern, and distribution of shore
9
line types and bank edge habitat for each
10
CAWS segment and knowing the pattern in
11
juxtaposition of different types of aquatic
12
habitats for each CAWS segment. Is it your
13
opinion that the Clean Water Act requires
14
this type of comprehensive habitat assessment
15
for a defining and designating aquatic life
16
uses in fresh water streams throughout the
17
United States?
18
DR. MACKEY: I'm not an expert on the
19
Clean Water Act. I want to make that clear.
20
So taking that as a caveat, I don't know if
21
the Clean Water Act would require a
22
comprehensive habitat assessment for every
23
fresh water stream throughout the United
24
States. But common sense would dictate that
93
1
where there is a reasonable expectation that
2
the system is habitat limited, and that would
3
be especially in an artificial waterway such
4
as the CAWS, an assessment of physical
5
habitat is necessary, and I believe required,
6
to determine whether or not a proposed
7
aquatic life use can be attained.
8
Unfortunately, Illinois EPA has not provided
9
any data information or analyses to show that
10
there is sufficient aquatic habitat to
11
support containment of the proposed aquatic
12
life uses in the CAWS. Irrespective of
13
improvements in water quality, the proposed
14
aquatic life use is not attainable if aquatic
15
organisms are habitat limited.
16
MS. DIERS: Question 39: On Page 8 of
17
your prefiled testimony you state, however,
18
Illinois EPA contends that these shallow
19
water bank edge habitats in the Calumet-Sag
20
Channel should be considered to be spawning
21
habitat, which is problematic given that no
22
direct data was -- is available to support
23
that contention. Could you please point out
24
in the hearing record where Illinois EPA
94
1
contends that shallow water bank edge
2
habitats in the Calumet-Sag Channel should be
3
considered to be spawning habitat?"
4
DR. MACKEY: This statement is an
5
inference from the testimony and the
6
information provided by Illinois EPA. The
7
primary reason to designate Cal-Sag Channel
8
as an Aquatic Life Use A water is based on
9
the presence of a shallow water,
10
predominantly based on the presence of a
11
shallow water littoral study,
12
L-I-T-T-O-R-A-L, associated with bank edge
13
areas of that channel. And I'll refer to you
14
the prefiled system of Sulski on Pages 16 and
15
17 and the hearing testimony by Rob Sulski on
16
March 10, 2008, on Pages 30 to 31; Smogor
17
on -- testimony by Smogor on March 10, also,
18
2008, on Page 32; and Essig on March 10,
19
2008, on Page 35. Since the primary physical
20
difference, according to Illinois EPA,
21
between the Chicago Sanitary and Ship Canal
22
and the Cal-Sag Channel is the presence of an
23
undocumented shallow water -- I'm sorry -- is
24
the presence of a shallow water littoral zone
95
1
in the Cal-Sag Channel, one may infer that
2
since Illinois EPA is proposing that the
3
Cal-Sag Channel be designated as a type A
4
water, that Illinois EPA believes that these
5
shallow littoral zones within the Cal-Sag
6
Channel may serve as potential spawning sites
7
and/or refuges for early life stage fish.
8
Otherwise why apply a dissolved oxygen
9
standard designed to protect early life stage
10
fish during the months of March through July
11
to Cal-Sag Channel?
12
MS. DIERS: What do you mean by direct
13
data? That was Question 40.
14
DR. MACKEY: Yes. Direct data means
15
sampled or directly observed, not inferred.
16
And the type of data collected will depend on
17
the type of water body and the complexity of
18
the system. In the case of a complex
19
artificial system such as the CAWS, Illinois
20
EPA has not provided data or analyses
21
sufficient to show that the proposed aquatic
22
life uses are attainable for that associated
23
physical chemical standards.
24
MS. DIERS: This is 41: Do you
96
1
believe that no fish are spawning or
2
propagating is occurring in the Calumet-Sag
3
Channel?
4
DR. MACKEY: I believe we discussed
5
this earlier in another question, and I'll
6
just restate that no data or evidence has
7
been collected by the District or by the CAWS
8
UAA contractors to indicate that spawning
9
activity has occurred in the Cal-Sag Channel,
10
nor have eggs or larval fish indicative of
11
spawning activity been collected by the
12
District from the channel. Until spawning
13
activity is observed directly and/or eggs or
14
larval fish are recovered from potential
15
spawning sites, one cannot conclude that fish
16
are spawning or propagating in the Cal-Sag
17
Channel. I think the point here is that if
18
you're proposing an aquatic life use standard
19
that requires, in essence, general use,
20
dissolved oxygen standards, I would suspect
21
or I think it would be appropriate to say
22
that, hey, you're doing this for a reason and
23
that you have -- and that you actually can
24
show that fish actually are using these areas
97
1
as spawning habitat. Right now there's no
2
data available that show that that's the
3
case.
4
MS. DIERS: Question 42: How does one
5
determine scientifically with direct data
6
that no fish spawning or propagation are
7
occurring in the Calumet-Sag Channel?
8
DR. MACKEY: Okay. Your questions are
9
really interesting, because it's really
10
difficult to prove a negative. However,
11
inductive reasoning leads to the logical
12
conclusion that spawning activity is not
13
occurring within the Cal-Sag Channel. Again,
14
first, no evidence is presented by Illinois
15
EPA to demonstrate that fish spawning and
16
propagation are occurring within the Cal-Sag
17
Channel.
18
Second, no data or evidence
19
has been collected by the district or the UAA
20
contractors to indicate that spawning
21
activity has occurred in the channel, nor
22
have eggs or larval fish indicative of
23
spawning activity been collected from the
24
channel.
98
1
And, third, in Dr. Melching's
2
hearing testimony on November 17, 2008, he
3
presented an analysis based on the habitat's
4
suitability indeces that describe the CAWS as
5
being habitat limited for early life stages
6
of largemouth bass, channel catfish, and
7
smallmouth bass, the three species that have
8
been specifically identified by Illinois EPA.
9
They haven't identified any others, okay, at
10
this point.
11
So, based on what we know
12
about the habitat requirements of an early
13
life stage fish, the HSI, the habitat
14
suitability indeces suggest that the Cal-Sag
15
Channel is not the place to be. In other
16
words, it's really not a good place for fish
17
to spawn. This combined with the fact that
18
we haven't recovered any eggs or larval fish
19
from the Cal-Sag Channel and no direct
20
observation of fish spawning activity in the
21
Cal-Sag Channel doesn't support the idea that
22
fish spawning or propagation are occurring in
23
the Channel. I mean you don't see it, you
24
don't collect any data suggesting it's
99
1
happening, so it's difficult to conclude that
2
it is without some documentation. In other
3
words, until spawning activity is observed
4
directly and/or eggs or larval fish are
5
recovered from potential spawning sites, one
6
cannot conclude that fish are spawning or
7
propagating in the Cal-Sag Channel.
8
MS. DIERS: Do you know if the
9
district tried to collect spawning data in
10
the CAWS?
11
DR. MACKEY: I don't know.
12
MS. DEXTER: Are you saying that you
13
believe that you have enough information
14
where you sit right now to decide that this
15
is not a false negative reading?
16
DR. MACKEY: Could you --
17
MS. DEXTER: That you say that there's
18
no data that shows this, and you just listed
19
a bunch of reasons why you think that this is
20
not -- Because we don't have data you just
21
said it's difficult to prove a negative. But
22
then I took your testimony to say that you
23
think that the negative has been proved.
24
DR. MACKEY: I'm not saying that. I'm
100
1
not saying that the negative has been proved.
2
All I'm saying is that until you see some
3
larval fish and you see spawning activity in
4
this system, that is I don't believe you can
5
make the conclusion that spawning activity is
6
occurring in the Cal-Sag.
7
MS. DEXTER: Right. But you can't
8
conclude at this point that it is not
9
occurring?
10
DR. MACKEY: I can't make a conclusion
11
either way.
12
MR. ANDES: Is it reasonable to infer
13
that it is not occurring based on the
14
available --
15
DR. MACKEY: I think that's a
16
reasonable inference to make based on the
17
data that's been collected.
18
MS. DEXTER: Even though you don't
19
know how adequate the sampling equipment is
20
at getting larval fish and getting eggs.
21
MR. ANDES: I think you're putting
22
words in his mouth.
23
MS. DEXTER: I asked him earlier today
24
whether he knows about the --
101
1
HEARING OFFICER TIPSORD: She did.
2
DR. MACKEY: I do not know -- I do not
3
know what type of equipment is being used for
4
sampling. I am not a biologist.
5
MS. DEXTER: And you don't know
6
whether that equipment is actually adequate
7
to sample --
8
DR. MACKEY: That's correct. All I
9
can say is that up to this point no larval
10
fish have been collected or eggs or spawning
11
activity has been observed in this system.
12
MS. WILLIAMS: Didn't you just say you
13
don't even know if the District has tried?
14
DR. MACKEY: I have no idea if they
15
have. All I'm saying is look at the data
16
that has been collected. There are no
17
reports of larval fish. That's all I have to
18
say. Whether they've tried, whether they've
19
used the appropriate equipment or not, I
20
cannot address that question because I'm not
21
a biologist.
22
MR. ANDES: Did Illinois EPA in
23
support of this ruling put forward any
24
evidence of spawning or larval fish?
102
1
DR. MACKEY: To my knowledge, no.
2
MR. ANDES: Thank you.
3
MS. DIERS: Did you review the
4
ichthyoplankton and fish size data in the
5
record? And, if so, what is the relevance of
6
the data in determining whether early life
7
stages use is or is not existing and,
8
therefore, attainable in the CAWS? And
9
that's a follow-up question.
10
DR. MACKEY: I understand. I have a
11
response to that question. I know that the
12
Illinois EPA has suggested that different
13
size classes of fish may indicate the
14
presence of early life stage fish, and I know
15
there was some reference made to three inch
16
or five inch size fish from the data.
17
Personally, I have not reviewed the size
18
class data in detail. Again, that is not my
19
area of expertise. What I would also say
20
based on experience in working with fisheries
21
biologists in rivers and also in lakes, that
22
the different size classes are not
23
necessarily determinative of spawning or
24
reproductive activity. Different size
103
1
classes quickly indicative of different
2
growth rates and/or the presence of different
3
genetic strains of the same species. And I
4
had mentioned this before. We have seen
5
this -- I've seen this in lake environments
6
where there are different strains that have
7
different growth rates as a function of age.
8
Moreover, unless there was some direct
9
evidence that link these fish to specific
10
spawning locations, even if you have small
11
fish there, you don't know if they came from
12
within the Cal-Sag Channel or they came from
13
Lake Michigan or if they came -- if they
14
somehow went through the electric field
15
barrier in Romeoville and came -- well, they
16
could have come across from the flood waters
17
from the Des Plaines River. I mean there is
18
a connection there that occurs. So, again,
19
this is the idea about direct evidence
20
showing. Present some information or data
21
that says there are fish spawning data.
22
We've got eggs in these substrate materials,
23
that we have larval fish that we found. And
24
then we move forward from there. But right
104
1
now that data does not exist to my knowledge.
2
MS. DIERS: I want to jump back to the
3
comprehensive habitat assessment we talked
4
about. Can you give an example of a UAA
5
where it's this type of comprehensive habitat
6
assessment approach you've advocated has been
7
used?
8
DR. MACKEY: No, I can't. And the
9
reason is is that in general I have not been
10
involved much with the UAA process; and so,
11
therefore, I do not know what necessarily has
12
been done across the country with the UAA
13
samples or assessments.
14
MEMBER RAO: May I ask a follow-up.
15
You mentioned that you had done the similar
16
kinds of studies in great lakes and other --
17
and rivers in Ohio. In what context were you
18
asked to do these evaluations?
19
DR. MACKEY: That's a really good
20
question; take a minute or two to answer this
21
one. My work in the great lakes and in the
22
tributaries to the great lakes, as I say, is
23
focussed primarily on habitat assessment.
24
And I use a side-scan sonar and wadable
105
1
systems. I actually walk the streams with
2
GPS equipment and actually map the substrate
3
contacts and map the channel morphology. My
4
work is done primarily with the natural
5
resource management agencies. I've worked
6
with virtually every DNR in the great lakes
7
basin. I also worked with the provincial
8
fisheries biologist, the Ontario Ministry
9
Natural -- Ministry of Natural Resources,
10
Department of Fisheries Oceans in Canada, and
11
Environment Canada. I've worked with all of
12
those folks doing fisheries related and
13
habitat assessment work, not associated with
14
UAA. This has to do with management of the
15
fisheries resources.
16
Couple important points to
17
make here, this is a really good question, I
18
just want to touch base on this. In all this
19
work for many years that I've done with all
20
of these resource management agencies, the
21
agencies that are actually charged with
22
managing fisheries in the great lakes, and
23
that includes the riverine stocks as well.
24
Never once have we ever used the QHEI
106
1
analysis for habitat assessment to identify
2
any sort of restoration or enhancement
3
opportunity. Only times -- and I have
4
calculated the QHEIs. We do it on a very
5
infrequent basis. The only times we have to
6
do that is when we're trying to satisfy a
7
regulatory requirement of an EPA of either --
8
not so much Illinois EPA, but Ohio EPA or the
9
organizations in Michigan or the other
10
states. The natural resource management
11
agencies, the most of the DNRs do not use the
12
QHEI for habitat assessment, period. Okay.
13
It just doesn't work to identify restoration
14
opportunities. The context of what I do is
15
in lakes and in shore areas I am working on
16
identifying potential sites for protection
17
and restoration work and/or for fish stocking
18
efforts. An example would be on the project
19
with the U.S. Fish and Wildlife Service, New
20
York EBC (ph.), USGS, Ohio Division of
21
Wildlife and Ontario Ministry of National
22
Resources and Environment Canada, the Eastern
23
Basin of Lake Erie. We are using side-scan
24
sonar and other tools to map potential lake
107
1
trout spawning habitat in the eastern basin
2
of Lake Erie. Lake trout were extrapolated
3
in the early 1900s from the lake. One of the
4
fish community goals and objectives of the
5
Great Lakes Fishery Commission is to restore
6
native fish species of which lake trout is
7
one. So I've been mapping these habitat
8
areas, identifying these areas on the lake
9
bed because nobody knows where they are based
10
on a set of characteristics similar to the
11
habitat suitability indeces. Over the next
12
three to five years, the fish hatcheries in
13
the province of Ontario and U.S. Fishing and
14
Wildlife Service are ramping up production of
15
lake trout. And there is going to be a
16
massive stocking done within the next three
17
years where they're going to be placing these
18
fish on the locations on the habitat that
19
we've identified as part of the study to
20
maximize the potential sites -- success in
21
terms of restoring reproducing sustainable
22
populations of lake trout in Lake Erie. This
23
is the type of thing that we do. We are also
24
doing this in riverine systems. I've done
108
1
the habitat mapping in Sandusky River. And,
2
in fact, involvement now at the major dam
3
removal there in order to open up 22 more
4
river miles of potential spawning habitat for
5
walleye. That's the context in which I'm
6
working. It's about protecting, improving
7
accessibility, connectivity for habitat in
8
order to improve the aquatic communities.
9
And that includes not just the four fisheries
10
and commercial fisheries, but we're also
11
working to improve the forage fisheries which
12
there are other species. Does that answer
13
your question?
14
MEMBER RAO: Yes.
15
HEARING OFFICER TIPSORD: Can we go
16
off the record for just a second.
17
(Off the record.)
18
HEARING OFFICER TIPSORD: Back on the
19
record. Miss Diers, I think we're ready for
20
you.
21
MS. DIERS: Prefiled Question 6 on
22
Page 96. Do you believe that Cal-Sag Channel
23
should be designated as a Use B water as
24
Illinois EPA proposed rather than a Use A
109
1
water? And, if so, why?
2
MEMBER JOHNSON: I'm still thinking
3
about his answer to the last question. And I
4
guess the natural follow-up to me would be
5
had you been asked to look at the CAWS system
6
to determine whether or not it had the
7
potential for restoration, what would be your
8
conclusion?
9
DR. MACKEY: I would say that in
10
certain reaches of the CAWS that there is
11
potential for restoration. I believe that
12
whatever type of restoration occurs has to be
13
done intelligently and efficiently. I will
14
tell you right up, straight up right now that
15
I don't believe necessarily that system-wide
16
solutions are the answer here and that it
17
doesn't make sense to impose system-wide
18
standards necessarily, particularly if only
19
portions of the system may have a potential
20
habitat to actually accomplish some of the
21
things that you wish to accomplish within
22
this system.
23
MEMBER JOHNSON: Thank you.
24
MS. DIERS: So what reaches do you
110
1
believe could be restored?
2
DR. MACKEY: That I cannot answer at
3
this point, No. 1, because existing data sets
4
are not adequate to answer that question.
5
And, No. 2, I would wait and see what the
6
results are from the habitat evaluation
7
improvements study are; I think a much better
8
handle on what the actual physical habitats
9
are in this system.
10
MS. DIERS: That will take me back to
11
our Question 6 that I asked before we did the
12
follow-ups. Do you believe the Cal-Sag
13
Channel should be designated as a Use B water
14
rather than a Use A water? And, if so, why.
15
DR. MACKEY: Well, I'll first put in
16
the caveat and say, again, that I don't
17
believe that -- I think the Cal-Sag Channel
18
there were two sampling sites for the entire
19
length of the channel, and that's two sites
20
were looked at that were evaluated, and that
21
basically has characterized the entire
22
Cal-Sag habitat condition. And those sites
23
were spaced I think a little over ten miles
24
apart. So there's an awful lot that can go
111
1
on between those sites. And so I really
2
think that we don't have adequate data to --
3
for me to make a necessarily informed
4
decision. I will give you an answer in a
5
second. And the caveat is this, that I think
6
we really need to see what comes out of this
7
habitat evaluation and improvement study to
8
see what may actually be possible. But based
9
on the available data I would say that, yes,
10
I believe the Cal-Sag Channel should be
11
designated as a Use B water rather than a
12
Use A water. And my initial assessment is
13
based on the reconnaissance field
14
observations of the shore line features, some
15
of which you've seen in the handout already,
16
an examination of the high resolution
17
bathymetric data collected by the U.S. Army
18
Corps of Engineers and that data set is, I
19
believe it's a one foot contour or less, six
20
inch contour interval. It gives you a real
21
good feeling of how the depths are changing
22
in that system, and there's not a lot of
23
shallow water area there. It's very small.
24
Based in part on that data and on the
112
1
side-scan data, this littoral zone that
2
Illinois EPA refers to may represent it most
3
at 5 to 8 percent of the total channel area,
4
if you want. And one of the things I would
5
say about the littoral zone, Illinois EPA has
6
not clearly defined what it means by a
7
littoral zone. In the lakes it usually means
8
depth of closure or wave base. And that is
9
that -- it's the depth at which waves no
10
longer significantly impact the bottom, and
11
that would be the littoral zone in the lake.
12
And the riverine system or system such as the
13
CAWS you have to say, well, you're not going
14
to have ten footers generally and the winds
15
aren't strong enough to do that. So the
16
primary source of wave energy there is
17
probably going to be in barges and tows. And
18
I don't know what the wavelength of those
19
waves would be, but I'm guessing that might
20
be a wavelength of maybe six to seven feet
21
between the crest, half of that distance is
22
the depth that the waves are close to bottom.
23
So you're looking at maybe water depths of
24
three feet or less would be defined as a
113
1
littoral zone. Those areas are very small,
2
probably less than 1 to 2 percent of the
3
total channel bottom area; very, very small
4
area along the edge.
5
MS. DIERS: The habitat study that
6
you're working on, are you currently sampling
7
in the Cal-Sag Channel?
8
DR. MACKEY: I am not sampling, I'm
9
not doing any sort of biological sampling or
10
any sort of direct sampling in terms of
11
dragging sediments or whatever at this point.
12
I've done side-scan sonar and that's all I've
13
done, and done visual observations as well.
14
MS. DIERS: I think it was stated that
15
two sites were sampled in the Cal-Sag
16
Channel, the UAA --
17
DR. MACKEY: Yes.
18
MS. DIERS: Is your goal with this
19
study to do more sampling in the Cal-Sag
20
Channel, more than two sampling sites?
21
DR. MACKEY: I believe that there are
22
several more sites that are -- have been
23
identified in that site. I cannot
24
specifically tell you what they are, but,
114
1
again, if you have -- if you are able to
2
utilize a device, a remote sensing device
3
such as the side-scan, what it allowed you to
4
do is to basically generate an image of the
5
entire channel bottom. And then what you
6
would do is you say I have maybe three or
7
four different types of acoustic patterns or
8
reflectors that I see, then you go and sample
9
each of those types of reflectors. And you
10
would sample like a bedrock area if you can,
11
you know. Sampling bedrock is a tough thing.
12
Usually the sampling devices, they bounce
13
right off. But for areas where you think you
14
can't clearly distinguish between silt or
15
sand or gravel, you would see a certain type
16
of acoustic pattern and you'd sample that.
17
And if you see a similar type of acoustic
18
pattern in another place in the channel,
19
you'd sample that. If they both come up as
20
gravel, you'd say, in general, every time I
21
see that type of acoustic pattern I can
22
actually call that gravel. The way you go
23
about doing this analysis is that you saw
24
just from these small images here, this is
115
1
all geospatially correct. In other words,
2
this is the GIS. This is a GeoTIFF image,
3
georeferenced; accuracy is within one meter
4
or less. So what you can do, you can
5
actually go in there and actually digitize
6
and actually generate polygons around each of
7
the substrate types. And assuming you're in
8
the right projection, that allows you to
9
calculate how many square meters of bedrock
10
is exposed on the bottom of the Cal-Sag
11
Channel, how many square meters of silt, how
12
many square meters of sand that exist of any
13
of the substrates. And you can actually walk
14
up or look at any reach, and you can actually
15
calculate relative to the area surveys
16
exactly what percentages of water are there.
17
And if you want to behave like a fish say
18
you're swimming in from Lake Michigan, and I
19
don't know why you'd want to do this, but if
20
you do, you can actually go through a series
21
of distributions that actually tell you how
22
much and what type of habitat you have
23
crossed on your way in. This is what we do
24
with some of these rivers in Ohio and in
116
1
Canada and in Michigan.
2
MS. DIERS: So is this what you're
3
doing in the CAWS now?
4
DR. MACKEY: This is something that
5
potentially could be done in the CAWS.
6
Whether it's actually going to be done, I
7
don't know at this point.
8
MR. ANDES: And I would add to that in
9
terms of the details of being done with
10
regard to that study, I would say that we
11
could get other people to answer those
12
particular questions sort of beyond the
13
particular work that Dr. Mackey is doing.
14
DR. MACKEY: My work is very
15
constrained. It's focussed predominantly on
16
the side-scan sonar data.
17
MS. DIERS: Who would those witnesses
18
be?
19
MR. ANDES: Let me get back to you on
20
that. We will identify them.
21
MS. DIERS: Thank you.
22
MR. ANDES: I would also just -- I
23
want to add, I think we stopped Dr. Mackey in
24
the middle of his explanation on the Cal-Sag
117
1
Channel in terms of the reasons why it should
2
be Use B.
3
MS. WILLIAMS: I thought he answered
4
the question.
5
MR. ANDES: He had more to go.
6
DR. MACKEY: It's just a couple more
7
sentences here. Basically the side-scan
8
sonar data that I've collected from the
9
Cal-Sag Channel -- sorry about that, guys.
10
We got twisted off here on a different topic
11
for a while and it takes a while for me to
12
reengage.
13
HEARING OFFICER TIPSORD: That's quite
14
all right.
15
MR. MACKEY: With the side-scan sonar
16
data is that I've done certain reaches of the
17
Cal-Sag, but I've also done in confluence and
18
worked my way up into the San-Ship as well.
19
And in terms of the relative differences
20
between the two, now if you recall the
21
Sanitary and Ship Canal is designated as an
22
Aquatic Life Use B water, okay? But based on
23
the side-scan sonar data what's really
24
interesting is that there are some
118
1
differences between the two, but they are
2
very, very minor. It's not surprising,
3
actually, along the northwest wall that
4
vertical bedrock wall in the San-Ship down to
5
the bottom there there actually is a ridge,
6
if you want, that's made up of moderately
7
coarse material, and in terms of its
8
dimensions are very similar to what you
9
actually see in the Cal-Sag. The Cal-Sag,
10
that little narrow littoral bench there is
11
shallower, but the same type of habitat
12
structure is in the San-Ship as well. So
13
some of the differences in terms of -- that
14
Illinois EPA has used as the basis for
15
saying, well, gee, the Cal-Sag is really a
16
different system. You know, if you look at
17
it a little bit more closely and a little bit
18
more continuously, there's a lot more
19
similarities than there are differences. And
20
I don't believe that those differences
21
necessarily warrant a different designation
22
for the Cal-Sag.
23
The other issue, and I've
24
mentioned this already, and that is is that
119
1
the shallow littoral zone blocks up this area
2
that is shown on this example side-scan
3
sonar. These blocks are not small blocks.
4
If you have a chance to drive a boat along
5
there or walk along the shore line, these are
6
good-size blocks. They're on the order of
7
many feet across in some cases. They're
8
bedrock slabs. The smallest ones that I've
9
really observed have only been about twelve
10
inches is the smallest. Now there may be
11
some finer material in there, but it's very,
12
very rare to see. And the interesting thing
13
about this is that this is not the material
14
that one would anticipate to be ideal
15
spawning habitat or used by early life stage
16
fish. And, in fact, in work that we've done
17
along the shores of Lake Erie, we go to the
18
Western Basin, and I have to go back to Lake
19
Erie because that's the place where I have
20
some comparative experience here. In the
21
Western Basin of Lake Erie in the near shore
22
waters, it's primary historic nurseries for
23
most of the larval fish that are produced out
24
of the western basin which is the bulk of the
120
1
fish in Lake Erie, and that's by far and away
2
the most productive of the great lakes.
3
Immediately adjacent to those nursery areas
4
it's very low relief areas, and there are
5
wetlands there. And those wetlands have been
6
diked and the lakeward side of those clay
7
court dikes are armored with large blocks of
8
stone very similar to what's here on the
9
Cal-Sag Channel. And they extend out into
10
the lake, because once you armor the shore
11
line, the beaches disappear.
12
All right. I don't know if
13
any of you folks know Dr. Roger Tomo (ph.)
14
with the Ohio EPA, he was a good friend of
15
Chris Yoder and he works with Chris Yoder and
16
Ed Rankin. He has done extensive work along
17
the Lake Erie shore line looking at fish
18
communities in the aquatic communities that
19
inhabit these very coarse rocky areas. And
20
it turns out that virtually no larval fish
21
are found there, and he does sample with the
22
appropriate equipment, I believe. But what
23
he does find that these large blocks are
24
ideal habitat for predators, largemouth bass
121
1
and other predators. And so basically -- and
2
this is sort of like the forage raining
3
wetlands on one hand and then protecting them
4
on the other. Here we are in Lake Erie where
5
we have this nursery habitat, and we really
6
want to protect this area, and yet we're
7
putting in this shore protection and these
8
structures, and basically it's ideal habitat
9
for preditors. So we're basically putting
10
the preditors right in the front of the
11
grocery store, okay. It's just not -- we
12
really haven't thought it through. And so I
13
suspect in the Cal-Sag Channel that I know
14
supposedly from the fish data that there are
15
lots of largemouth bass present, and those
16
are pretty voracious preditors, is that these
17
large blocks are actually going to be the
18
hotel preditor, if you want. And so if you
19
really think that these large blocks or these
20
rocks and this coarse shallow littoral shelf
21
is going to serve as a refuge for larval fish
22
and young-of-the-year fish, I think it's
23
basically going to serve as a grocery store
24
for those largemouth bass.
122
1
Again, this is from a
2
nonbiologist, but this is based on
3
information coming from experience and other
4
systems.
5
MS. DIERS: Did Rankin indicate in
6
Attachment R that the Cal-Sag littoral areas
7
are not isolated but occur along much of the
8
shore line?
9
DR. MACKEY: What question was that?
10
MS. DIERS: It's a follow-up.
11
DR. MACKEY: It's a follow-up
12
question, okay. Yes. I believe he did --
13
That's what he did indicate. But I have,
14
again, concerns about whether that's an
15
accurate assessment.
16
MS. DIERS: So do you disagree with
17
that statement?
18
DR. MACKEY: I do. I think that --
19
Could you say his statement again, please.
20
MS. DIERS: I'll just read from
21
Page 10 of Attachment R, his statement. The
22
Cal-Sag Channel had QHEI scores in a fair
23
range largely because of the limestone rubble
24
and coarse materials left behind in the
123
1
littoral areas from the construction of the
2
channel. Unlike Wolf Point site on the
3
Chicago River, this littoral habitat is not
4
isolated but occurs along much of the shore
5
line. So do you agree with that statement?
6
MR. ANDES: What page were we on?
7
MS. DIERS: Page 10 of Attachment R.
8
MS. WILLIAMS: They're not actually
9
numbered.
10
MS. DIERS: I counted. I'm sorry.
11
MS. WILLIAMS: There's a page for the
12
Cal-Sag.
13
DR. MACKEY: I got the message. I
14
have a copy of it here, too. In general I
15
would agree with that based on the shore
16
structure inventory that has been gone under
17
the habitat assessment. It's my
18
understanding that about 20 percent of the
19
Cal-Sag Channel has a vertical, some sort of
20
vertical type of wall with none of this type
21
of littoral habitat, this coarse block of
22
habitat that is discussed. And on the
23
western portion, the western portion of the
24
Cal-Sag Channel, it actually has a much
124
1
higher percentage of the vertical wall. And
2
you saw that in the side-scan data, the north
3
wall extends for many miles along the Cal-Sag
4
Channel.
5
MS. DIERS: Back to prefiled
6
Question 43. On Page 8 of your prefiled
7
testimony, you mention that QHEI protocol is,
8
quote, based on hydrogeomorphic metrics in a
9
natural stream. Then at the bottom of Page 8
10
you mention flows in the CAWS are related and
11
controlled by manmade structures and are not
12
natural. Do you believe that QHEI cannot
13
provide useful information in a stream
14
impacted by human activities?
15
DR. MACKEY: The QHEI is a habitat
16
classification monitoring tool that can be
17
used to compare the physical habitat
18
characteristics of different stream reaches.
19
So, therefore, it has some use from a
20
regional comparison respect. For a simple
21
cursory evaluation, general habitat
22
characteristics, QHEI protocol can certainly
23
be applied to natural streams impacted by
24
human activities. However, with respect to
125
1
the CAWS, I have real concerns that these are
2
the only habitat data used to determine
3
biological potential, primarily because the
4
QHEI was developed for natural systems, not
5
artificial systems such as the CAWS. Rankin
6
in 1989 describes the QHEI as a macro scale
7
approach that uses qualitative metrics to
8
describe the emergent properties of habitat.
9
And we discussed this earlier: Sinuosity,
10
pool or riffle development, et cetera.
11
However, many of the emergent properties of
12
habitat do not exist in the CAWS, and this is
13
important, nor have they ever existed in the
14
CAWS. Thus, the low QHEI scores are not
15
unanticipated because they are the result of
16
a misapplication of the QHEI to an artificial
17
system.
18
MS. DIERS: How do you define a
19
natural stream?
20
DR. MACKEY: A natural stream is
21
generally a channelized area. And I'm not
22
talking about channelized in terms of manmade
23
channelization. It's a channel cut by
24
flowing water in which there are certain
126
1
structures and characteristics that are rated
2
by the application of energy of stream power
3
and by the flowing water. And that's
4
basically what I would call a natural stream
5
from a physical perspective.
6
MS. DIERS: Is it inappropriate to use
7
the QHEI in a stream that is not 100 percent
8
natural?
9
DR. MACKEY: No. I think it's
10
certainly appropriate. And I think in Rankin
11
in 1989, when they originally developed the
12
QHEI, it was very clear that they applied the
13
QHEI and attempted to calibrate the QHEI
14
metrics to take into account certain types of
15
degradation of the natural system. And that
16
there is a range of degradation that can
17
occur.
18
MS. DIERS: So if a channel is cut by
19
something other than flowing water, is it
20
artificial in your opinion?
21
DR. MACKEY: Yes.
22
MS. DIERS: Do you believe that
23
relatively low QHEI scores in the CAWS
24
streams indicate that the QHEI is not
127
1
functioning as intended? This was the end
2
of 43.
3
DR. MACKEY: Well, I think that the
4
QHEI has been misapplied in this system. The
5
QHEI is designed to identify certain emergent
6
or macro habitat features, most of which
7
don't exist in the system; and, thus, many of
8
the values, and we have already gone through
9
this in the handout entitled QHEI Metrics in
10
the CAWS, most of the metrics in a natural
11
system would be relatively important are held
12
constant within the CAWS. So I don't think
13
that the -- personally, I don't think that
14
the QHEI is necessarily functioning
15
appropriately, because most of the metrics
16
upon which they're based don't even apply in
17
this system.
18
MS. DIERS: Question 44: On Page 8 of
19
your prefiled testimony you state, "The QHEI
20
protocol is not designed for use in low
21
gradient, nonwadable streams and rivers."
22
Then on Page 9 you state, "The QHEI protocol
23
was not designed to be applied to a flow
24
regulated artificial waterway system such as
128
1
the CAWS."
2
Do you believe that state of
3
Ohio is incorrect in using the QHEI to help
4
determine aquatic life use attainability in
5
human impacted streams throughout Ohio?
6
DR. MACKEY: Certainly the QHEI can be
7
used to evaluate and monitor for natural
8
streams that are impacted by human activity.
9
So an answer to the question would be I have
10
nothing against the state of -- I used to
11
work for them. I used to work for the Ohio
12
DNR, so I have my issues with the state of
13
Ohio. But that's not one of them, okay.
14
However, my two statements that I
15
made in my prefiled testimony are still
16
valid, because the CAWS is an artificial
17
system, not a natural system. And the QHEI
18
protocol was not designed to be applied to an
19
artificial waterway such as the CAWS.
20
MS. DIERS: Are all parts of the CAWS
21
entirely artificial?
22
DR. MACKEY: No.
23
MS. DIERS: Forty-six: Do you believe
24
that the aquatic life uses proposed by
129
1
Illinois EPA for the CAWS represent natural
2
conditions?
3
DR. MACKEY: Conceptually, I don't
4
believe that any proposed aquatic life uses
5
for the CAWS represent natural conditions
6
because the CAWS is an artificial system.
7
The aquatic life that inhabits the waterway
8
today colonized the waterway after the
9
waterway was built from the waters of Lake
10
Michigan. These organisms were derived from
11
Lake Michigan or the smaller rivers and/or
12
tributaries that feed into the CAWS and/or
13
the Des Plaines or Illinois River Systems.
14
This is before the electric field bearing was
15
built. Some of the organisms may have been
16
transported and inadvertently released by
17
commercial vessels transporting into the
18
system as well, invasive species, for
19
example. The biological communities within
20
the system are severely limited by the
21
artificial nature of the CAWS. Moreover,
22
actually, I think where we want to go here is
23
it's also important to realize that the CAWS
24
is not a degrading system, this is an
130
1
important concept I'd like to get across, but
2
rather an artificial system that has been
3
improving since it was originally constructed
4
beginning with this last century, okay? I'm
5
trying to wrap you around a different concept
6
here. Because probably about 98 percent of
7
the environmental work we do is in degraded
8
natural systems. The CAWS is not a degraded
9
natural system. It is an artificial system,
10
and it didn't exist before it was
11
constructed. And organisms that live there
12
now have come in from the outside probably as
13
they passed through in the water and said,
14
oh, I think I can live here. So they're
15
eeking out in the existence. But this is not
16
a natural system. This was not a natural
17
meandering river system with a flood plane;
18
all of the classic, you know, types of
19
different types of habitat structure,
20
instream habitat structure that you have or a
21
broad variation and substrates that are here.
22
This thing, at least a significant portion of
23
it, was dug, it was cut out of limestone,
24
bedrock, and/or overlying overburden, the
131
1
alluvial material or glacial material. It
2
was created from nothing. And a good analogy
3
would be you could view, and I -- with all
4
deference to the District here, you could
5
view this thing as a concrete pipe, all
6
right? This thing didn't exist. It's like a
7
culvert in a road. And now we put a culvert,
8
we put this concrete pipe, and we put a road
9
across it, all right, and now we have water
10
that flows through this pipe, all right, and
11
the flow is regulated. All right. There was
12
no aquatic habitat there before the pipe was
13
there, all right? And it was not built or
14
designed to be an aquatic habitat or to
15
support aquatic life. But organisms in the
16
water have colonized the edge of this pipe,
17
if you want. It could be algae, it could be
18
anything that lives in here. And they are
19
opportunistic organisms. It is by no means a
20
natural community that is degraded. It's one
21
that has basically been created because of
22
construction of this artificial feature. And
23
if you try to apply metrics and tools and
24
strategies that we use for environmental
132
1
protection to a nondegrading system, in other
2
words, an artificial system like this, they
3
are probably not going to work because
4
they're based on a different foundation,
5
different basis which is trying to prevent
6
things from getting worse. And in a sense I
7
understand what you're trying to do. CAWS is
8
a different system. It's an artificial
9
system that's coming up and it's not coming
10
down in terms of its relative ecological
11
characteristics, let's just put it this way.
12
MS. DIERS: Is it your understanding
13
that no natural stream channel existed in the
14
CAWS before human impact?
15
DR. MACKEY: That is not my
16
understanding at all. Certainly there are
17
portions of the river system that existed in
18
some way, shape, or form prior. The Chicago
19
River was a natural system, but considerably
20
different than it is right now. From the
21
perspective the board, have any of you been
22
up to Illinois Beach State -- I don't have to
23
ask you. I'm not asking for -- looking for
24
an answer here. My apologies.
133
1
HEARING OFFICER TIPSORD: We'll
2
consider it rhetorical.
3
DR. MACKEY: If you were to visit the
4
Southern Unit of Illinois Beach State Park,
5
there is a river there called the Dead River,
6
and it's inappropriately named. But that is
7
probably very similar to what -- in fact,
8
that is very similar to what the original
9
presettlement conditions were here in the
10
Chicago area, okay? And this is based on
11
work that's been done by Dr. Mike Waskowski
12
(ph.) with the Illinois State Geological
13
Survey. It's a very shallow river system
14
that's draining a series of ridge and swale
15
wetlands and a very sand rich environment,
16
secretion area of sand as sands are being
17
transported by waves along the coast from
18
Wisconsin. So it's Wisconsin sand Chicago is
19
built on. And I think that that is the
20
condition the original presettlement
21
condition existed. What exists here now is a
22
completely different system. It's an
23
artificial channel. It doesn't have any of
24
the flow or any of the natural channel
134
1
characteristics.
2
MS. DIERS: So you're saying the north
3
branch Chicago River and the little Calumet
4
River were natural?
5
DR. MACKEY: Portions of them are, I
6
think, yes. They've been highly modified,
7
but certainly.
8
MS. DIERS: Would you agree that the
9
south branch Chicago River was formerly
10
natural before the human impact?
11
DR. MACKEY: There may be just a
12
slight portion, a portion of the south
13
branch, yes, but it wasn't by any means
14
connected to the Illinois waterway system.
15
MS. DIERS: What about the Grand
16
Calumet?
17
DR. MACKEY: I don't know. I honestly
18
don't know. I am old, but I'm not that old.
19
MS. DIERS: Back to prefiled Question
20
No. 48. Do you know if the original
21
development and application of the QHEI as
22
per Rankin 1989 included waters that were not
23
natural?
24
DR. MACKEY: What you're referring to
135
1
is Appendix 1C in Rankin 1989 where he lists
2
the sites in Ohio that were used to test and
3
develop the QHEI. Again, this is all based
4
almost entirely on data from the state of
5
Ohio. And I will point out that all of the
6
test sites were nationally flowing rivers and
7
streams. There were no artificial systems
8
such as the CAWS. That doesn't mean to say
9
that there weren't some heavily modified
10
systems. I know they've looked at several
11
impoundments and applied QHEI to impoundments
12
which is probably the closest thing you're
13
going to get to the CAWS. But those
14
impoundments are still connected to a natural
15
flowing river system. And those impoundments
16
represent degradation. They're not created
17
from natural. So, in essence, the QHEI was
18
evaluated in degraded stream reaches of that,
19
and I mentioned the impoundments. But it was
20
still part of a natural river system. That's
21
basically all I have to say.
22
MS. DIERS: Prefiled Question 51. On
23
Page 8 of your prefiled testimony you state,
24
"This assumption is not valid for low
136
1
gradient urbanized artificial channels such
2
as the CAWS." Does the QHEI include matrix
3
for channel morphology, flood plane quality,
4
current velocity, and gradient?
5
DR. MACKEY: Yes. But most of those
6
parameters, in fact the ones that you have
7
listed there, are ones that are being held
8
constant throughout virtually the entire
9
waterway system which really negates their
10
value as habitat submetrics within the QHEI
11
indeces.
12
MS. DIERS: What do you mean by held
13
constant?
14
DR. MACKEY: What I meant by held
15
constant is that, again, without the original
16
data sheets, I cannot be sure, but I believe
17
that the scores are basically the same
18
throughout most of the system. Notice I'm
19
not saying all of the system, but most of the
20
main parts of the system the scores are held
21
constant. For example, an important
22
parameter would be pool depth. And in
23
virtually all cases the pool depths are
24
greater than one meter, and so the score for
137
1
that value is going to be held constant
2
throughout the entire system.
3
MS. DIERS: If a metric scores low
4
consistently, does this mean it has held
5
constant?
6
DR. MACKEY: Not necessarily, no.
7
MR. ANDES: But if it's held low
8
consistently throughout the area, does it
9
provide value in terms of valuating various
10
reaches?
11
DR. MACKEY: I wouldn't think so. In
12
other words, it would be -- the comparisons
13
that are being made from a regional
14
perspective between various segments are
15
going to be based on one or two different
16
metrics and that's it. The rest of them are
17
held relatively constant.
18
And to follow-up on that, the
19
metrics that were -- that we're discussing
20
are the in-stream habitat structure and
21
substrate. And in-stream habitat structure
22
and substrate are based on 20 samples within
23
the CAWS, only 20 samples, with an average
24
spacing of 4.3 miles apart, minimum spacing
138
1
of a half mile and maximum spacing of a
2
little over 15 miles apart. And that's the
3
basis for the habitat assessment that's been
4
done, which I think was insufficient to
5
adequately categorize the physical habitat
6
within the CAWS.
7
MS. DIERS: So how many samples do you
8
think would be taken so you can make an
9
assessment? If 20 is not enough then --
10
DR. MACKEY: I cannot give you a
11
number, nor would I want to. As I described
12
earlier, if one were to use a continuous
13
mapping regimen such as the side-scan sonar,
14
the number of samples would depend on the
15
number of different types of acoustic
16
patterns that you see. And until you
17
actually do the mapping work, you don't know.
18
But I would certainly design a sampling
19
program so that it not only is compatible
20
with some of the existing biological data
21
because obviously -- and biological sampling
22
because you would want to develop some
23
linkages there, but in addition I would also
24
go beyond that, as I mentioned before, and
139
1
tie that to the other different types of,
2
say, acoustic areas so that I would know
3
exactly what I'm seeing on the bottom is
4
indeed sand or bedrock or silt or other
5
material.
6
MS. DIERS: I may have already asked
7
this earlier, but are you designing a
8
sampling plan for the District to follow?
9
DR. MACKEY: No.
10
MS. DIERS: Question 52: On Page 9 of
11
the prefiled testimony you mentioned that
12
there was considerable uncertainty in the
13
QHEI scores for locations in the North Shore
14
Channel and locations in the Calumet-Sag
15
Channel. Later in that paragraph you mention
16
that if the QHEI score of 42 is correct for
17
one of North Shore Channel sites, then the
18
boundaries of the proposed aquatic life use
19
categories for the CAWS are invalid and
20
should be redefined. Based on information in
21
the hearing record, are the correct QHEI
22
scores for the North Shore Channel and the
23
Calumet-Sag channel depicted in Table 3 on
24
Page 5 of the Rankin 2004 report which is
140
1
Attachment R?
2
DR. MACKEY: We've, in part, already
3
discussed this. But I will just state again
4
in my opinion based on field observations,
5
side-scan data, and the lack of actually
6
having the original data sheets to even look
7
at how this thing was scored, I would say no,
8
I do not agree that the value is reported on
9
Table 3 on Page 5 of the Rankin 2004 report,
10
which is Attachment R, are correct based on
11
my experience. Assessing different types of
12
aquatic habitat under a broad range of
13
conditions, it is just not credible to
14
believe that the Cal-Sag Channel, Route 83
15
site, represents the best aquatic habitat in
16
the CAWS.
17
MS. DIERS: Question 54: On Page 9 of
18
your prefiled testimony you state, "Proper
19
application of the Ohio boatable IBI requires
20
identification of high quality reference
21
streams which serve as yardsticks to measure
22
the biological health in similar regional
23
water bodies." Does every valid use of the
24
Ohio fish IBI for unwadable streams require
141
1
one to identify high quality reference
2
streams?
3
DR. MACKEY: Could you please clarify
4
on what you mean every valid use?
5
MS. DIERS: Can it be used?
6
MR. ANDES: Can it be used for any
7
purpose?
8
MS. DIERS: Yes.
9
DR. MACKEY: Well, all that I can say,
10
again, I am not a biologist, so I'm not an
11
expert on the IBI and all of the potential
12
uses for that indeces. But it's my
13
understanding that a high quality reference
14
stream that's being discussed already
15
represents the highest level of physical,
16
chemical, and biological integrity that can
17
be attained in a system. That's what this
18
whole concept is. The use of the reference
19
stream is necessary to establish the highest
20
potential IBI scores in the system with
21
similar hydrogeomorphic and environmental
22
conditions. It is only by identifying the
23
highest potential IBI scores that comparisons
24
can be made to determine the appropriate and
142
1
attainable aquatic life use scores and
2
whether or not those scores have been
3
attained.
4
MS. DIERS: Prefiled Question 57. On
5
Page 10 of your prefiled testimony you state,
6
"In fact, the minimum IBI scores observed at
7
the two monitoring stations in the Cal-Sag
8
Channel are among the lowest in the CAWS."
9
Do you believe that the minimum IBI scores
10
for the Calumet-Sag channel provide useful
11
information about the biological potential of
12
the stream?
13
DR. MACKEY: Well, as you know, my
14
expertise is focussed on characterizing and
15
mapping physical habitat and linking those
16
habitats to physical processes. I'm not a
17
biologist, so I'm not sure I feel qualified
18
to answer that question. Other witnesses to
19
follow, I believe, will discuss biological
20
aspects of the CAWS.
21
MS. DIERS: Would that be the same
22
answer for the next question in that did you
23
believe that the maximum fish IBI scores from
24
the Calumet-Sag channel provide useful
143
1
information about the biological potential of
2
the stream?
3
DR. MACKEY: Yes. I just don't feel
4
qualified to answer that question.
5
MS. DIERS: So what was the point of
6
your statement that I referenced in Page 10
7
of your prefiled testimony?
8
MR. ANDES: Which statement?
9
MS. DIERS: Quoted in Question 57.
10
DR. MACKEY: Question 57?
11
MS. DIERS: I provided the quote. I
12
just want to know what the purpose of that
13
statement was.
14
DR. MACKEY: Just a second here. I
15
only put part of your questions -- your
16
questions are pretty massive.
17
HEARING OFFICER TIPSORD: It's at the
18
bottom of Page 10, the last paragraph. It's
19
the last sentence at the bottom of Page 10.
20
DR. MACKEY: On my prefiled testimony.
21
If I understand, again, I'm not an expert on
22
this particular -- on the IBI, but I
23
understand that there is a specialized
24
protocol for the wadable versus the
144
1
nonwadable IBIs, fish IBIs, and that
2
apparently when the actual IBI values were
3
calculated that they did not use the -- they
4
used the wadable approach rather than the
5
nonwadable approach. And what it means is
6
that most of the IBI scores that were
7
reported, as I understand it, and, again,
8
this is in discussion with fisheries
9
biologists, that the IBI scores that were
10
reported by the CAWS UAA contractor are a bit
11
inflated by several points over what would be
12
the correct way to have calculated the IBI.
13
MS. DIERS: How are they inflated?
14
DR. MACKEY: I would refer you to
15
fisheries biologist to describe that in more
16
detail.
17
I viewed this process in a
18
little more detail on I believe Page 11 on
19
the next paragraph. This is, I think, a
20
different type of -- but that's okay.
21
MS. DIERS: So did you say you talked
22
to a fishery biologist that told you they
23
were inflated, or did I misunderstand?
24
DR. MACKEY: I looked for guidance. I
145
1
worked collaboratively with fisheries
2
biologists and/or aquatic ecologists and --
3
with respect to the IBI. And, again, I am a
4
geologist by training. Certainly there are
5
supposedly linkages, and certainly the
6
IEPA -- in the Illinois EPA's testimony and
7
in their statement for reasons, there are
8
linkages made between the QHEI and IBI
9
scores. Certainly you can agree with others
10
there are some statistical relationships to
11
develop. And so I inquired, since I'm not a,
12
quote, expert on the IBI, I said how good are
13
these IBI values? Are they a reasonable way
14
to do this? And these folks took a look and
15
they said, hey, we don't think that this was
16
done properly, and that's what I reported in
17
my testimony.
18
MS. DIERS: Who are these folks you're
19
referring to?
20
MR. MACKEY: Speaking to some of the
21
fisheries biologists in the district. And
22
also I discussed this in part with fisheries
23
biologists from the Ohio Division of Wildlife
24
as well.
146
1
MS. DIERS: Can you provide any names
2
who you talked to at the District and at
3
Ohio?
4
DR. MACKEY: It would be Jennifer
5
Wasik, I think I discussed this briefly with
6
Sam Dennison; and then within the Ohio
7
Division of Wildlife it was Jeff Tyson who
8
was the supervisor of Lake Erie Fisheries.
9
MR. ANDES: Was it also -- Was it
10
basically your point of the IBI scores that
11
the low IBI scores for Cal-Sag seemed to
12
indicate that it should not be put in
13
Class A?
14
DR. MACKEY: Yes.
15
MR. ANDES: Thank you.
16
MS. DIERS: I'll go to Question 58.
17
HEARING OFFICER TIPSORD: Miss Diers,
18
before you go to Question 58, we've been back
19
at it for about an hour and a half. I've got
20
12:20. But I did want to ask you, I notice
21
you're -- And I appreciate the way you've put
22
these questions together. They are flowing.
23
But you have skipped about 23 of them. So if
24
you could give us an indication perhaps after
147
1
lunch of which -- how many of those are
2
already answered or you're saving just so we
3
have an idea of where we're at this afternoon
4
as far as how many questions we have left to
5
go. With that, let's take an hour for lunch.
6
Come back at about 1:25.
7
(Lunch break taken.)
8
HEARING OFFICER TIPSORD: Good
9
afternoon, everyone. I want to compliment
10
you all on getting back here on time and all
11
of that. It's greatly appreciated.
12
Miss Diers, we're ready to go.
13
MS. DIERS: I'm going to start on Page
14
105. I know you asked prior before we left
15
for lunch, I have about four questions on
16
Page 96 I will go back to, but everything
17
else between 96 and 104 is done.
18
HEARING OFFICER TIPSORD: All right.
19
MS. DIERS: I'm going to start on Page
20
105, Question 58. I'm going to go to the
21
last question in that paragraph. Did
22
Rankin's report also indicate that the
23
Chicago Sanitary and Ship Canal at Lockport
24
was wider and had some littoral habitat,
148
1
however, this was very limited in scope and
2
were extremely embedded with silty mucks and
3
sand that were poor quality?
4
DR. MACKEY: Just hang on one second.
5
MS. DIERS: That would be Attachment R
6
that I'm referring to.
7
DR. MACKEY: With respect to Rankin's
8
2004 survey, Attachment R and the quote that
9
you have quoted in the question, yes,
10
Rankin's survey did indicate the presence of
11
littoral habitat in the Cal-Sag Channel; and,
12
yes, Rankin's survey did indicate the
13
presence of poor quality littoral habitat in
14
Chicago Sanitary and Ship Canal at Lockport.
15
But, and the but is in the sentence that
16
follows those two sentences, Rankin reported
17
that littoral habitat was similar, littoral
18
habitat was also present between the Harlem
19
and Cicero bridges in the Chicago Sanitary
20
and Ship Canal. So his statement isn't
21
correct, but that's in combination, if you
22
take it in full context where he's talking
23
about some similar habitat characteristics
24
that also exist in the Sanitary and Ship
149
1
Canal.
2
MS. DIERS: Question 59: On Page 10
3
of your prefiled testimony you state, "The
4
weathering of the bank walls provides a
5
slight shallow shelf with limited habitat for
6
fish." What is the basis for this statement
7
and how are you using the term slight and
8
limited?
9
DR. MACKEY: We've already been
10
through some of this in the testimony in the
11
morning. But these statements were based
12
on -- in my prefiled testimony were based on
13
the reconnaissance field observations which I
14
did on the ground and looking at the high
15
resolution bathymetric data collected by the
16
U.S. Army Corps of Engineers, which I've
17
described briefly as well. That gives you an
18
idea of what the channel morphology is like
19
and what's shallow and what's deep. And also
20
what some of the materials are, at least that
21
are exposed above the water surface. And
22
then as we talked about as part of the
23
habitat evaluation improvement study, we
24
also, or I also collected side-scan sonar
150
1
data, some of which you've seen an example of
2
from the Route 83 area that basically, you
3
actually can see what the submerged area of
4
that area looks like. And so that forms the
5
basis for that statement based on at least
6
three different sets of different types of
7
observations from my work along the Cal-Sag
8
Channel.
9
MS. DIERS: Did that answer quantify
10
how you -- using the term slight and limited?
11
DR. MACKEY: You're right. Thank you.
12
Actually, we talked briefly
13
about this as well. Based on the
14
reconnaissance side-scan sonar surveys, the
15
percentage of bank edge habitat structure
16
varies by reach; and, where present, ranges
17
from 5 to 8 percent of the total channel area
18
in the Cal-Sag Channel. We discussed that
19
earlier. The littoral zone referred to by
20
Illinois EPA and the Cal-Sag Channel is, as I
21
mentioned before, undefined, but in making an
22
assumption that it is a depth limitation, and
23
we talked about the possible size of waves
24
and the wavelength, is just, say, perhaps
151
1
less than the three foot water depth.
2
Looking at the bathymetry and also the
3
side-scan data, the littoral zone that I
4
think Illinois EPA is thinking about is less
5
than 2 percent of the total channel area.
6
And I think numbers like that are
7
certainly -- one can characterize as slightly
8
limited. I hesitate to put a percentage on,
9
well, if it's greater than 10 percent it's
10
something else. But I think you understand
11
the gist of what I'm getting at here. It is
12
not a large area in the Cal-Sag.
13
MS. DIERS: I'm going to strike
14
Question 60, and that will take us to
15
Question 61. On Page 10 of your prefiled
16
testimony you state, "A small amount of
17
rubble from the crumbling walls does very
18
little to improve the overall physical
19
habitat for fish and invertebrates in the
20
Cal-Sag Channel." How did you determine
21
this?
22
DR. MACKEY: Well, just as I described
23
just a few minutes ago or seconds ago, the
24
actual physical characteristics are based on
152
1
a combination of field site visits where I
2
actually observed what was above the water
3
column, the bathymetry from the U.S. Army
4
Corps of Engineers, and then also the
5
side-scan data that was collected. And
6
that's the physical aspects of that. And
7
that's fairly clear. I think in terms of the
8
overall physical habitat for fish and
9
invertebrates, I think for invertebrates it's
10
probably okay. I mean large blocks like
11
that, the inverts, they like that large, that
12
substrate. And from what I understand,
13
again, I'm not a biologist, but from what I
14
understand the large relatively stable
15
substrate like that, you know, the inverts, I
16
think, I think they'd be pretty happy there
17
assuming there's an appropriate food supply.
18
For fish, we've already had a
19
part of the discussion on that based on some
20
of my discussions with fisheries biologists
21
who have worked in Lake Erie and some other
22
areas. Certainly these large blocks serve
23
as, in essence, predator habitat for, let's
24
say largemouth bass. Again, I don't believe
153
1
that these are going to be terribly useful
2
for -- as spawning habitat or nursery habitat
3
or either early life stage or
4
young-of-the-year fish.
5
MS. DIERS: Question 62: On Page 11
6
of your prefiled testimony, you interpret
7
that there is no one-to-one correspondence of
8
IBI scores to QHEI scores. Do you believe
9
that statistical relationships established
10
for QHEI scores and fish IBI scores similar
11
to those in Figures 1 and 2 on Page 7 and 8
12
and Rankin 1989 are not useful for informing
13
the determination of appropriate aquatic life
14
uses for a stream?
15
DR. MACKEY: In answer to your
16
question, yes, I do agree that statistical
17
relationships may exist between the QHEI
18
scores and fish IBI scores, and that those
19
relationships can be useful. In general what
20
they tell us is that as habitat quality
21
improves in general, one can expect an
22
increase in the IBI scores, which means you
23
may have a somewhat more healthy, let's say,
24
fish community, however you want to define
154
1
that. Even though there is a tremendous
2
amount of scatter associated with that. In
3
other words, it's not a direct one to one.
4
You could be off by an order of magnitude or
5
two, but the trends are fairly clear. The
6
issue here, though, is that in Figure 5-2 the
7
CAWS UAA report, that's not the type of plot
8
that is described that you're describing here
9
by Rankin. And, in fact, the plots that
10
provided examples in the 1989 report were not
11
included in any way, shape, or form, within
12
the CAWS UAA report. In the Rankin 2004
13
report on habitat which is Attachment R, or
14
in any of the materials or hearing testimony
15
submitted by Illinois EPA as part of the
16
proposed aquatic life use designations. So
17
my answer is yes, as it was applied here in
18
Ohio. Yes, it certainly is valid. But this
19
is not what was done here in Illinois in the
20
CAWS.
21
MS. DIERS: And I know we've made
22
reference to Rankin 1989. I believe that's
23
Exhibit 175, for the record.
24
Question 63: Is it your
155
1
opinion that quantitative graphs and
2
relationships between QHEI scores and fish
3
IBI scores similar to Figure 19 on Page 40 in
4
Rankin 1989, Exhibit 175, are not useful for
5
informing the determination of appropriate
6
aquatic life uses for a stream?
7
DR. MACKEY: No. That's not my
8
opinion. I think these types of plots can be
9
useful. What she's describing on Page 40,
10
it's a plot that actually a percentage of
11
sites on the left-hand access and IBI range
12
scores on the bottom access basically from 12
13
up to 60 are grouping. It's almost like a
14
histogram plot in a sense. And then they
15
have a couple of different line types and/or
16
dot types as a function of whether you're
17
looking at different QHEI or habitat
18
characteristics. What it is, in essence,
19
it's a frequent -- it's showing a frequency
20
distribution of IBI scores for a certain
21
range of QHEI values. And what this does, in
22
essence, shows you the patterns or the
23
linkages in a broad way between the IBI and
24
the QHEI. And as it's plotted in the Rankin
156
1
1989 paper on Page 40, it's a good plot.
2
It's reasonable and it could conceivably be
3
useful. However, the type of frequency
4
distribution plot referred to here was not
5
included in the report by Rankin 2004, which
6
is Attachment R, or in the CAWS UAA report or
7
in any of the materials or testimony
8
submitted by the Illinois EPA in support of
9
the proposed aquatic life use designations.
10
So, yeah, Rankin, it's a good plot, but this
11
type of plot was not presented in any of the
12
information that I've seen related to this
13
aquatic life use designation.
14
MS. DIERS: Question 64: Do you
15
believe that the Clean Water Act requires
16
that aquatic life uses represent desired
17
aquatic communities as you mention on Page 13
18
of your prefiled testimony?
19
MR. ANDES: I'll object to that one
20
because it's clearly asking a legal question
21
of whether the Clean Water Act requires
22
something.
23
MS. DIERS: I didn't see it as a legal
24
question. I was just asking his knowledge of
157
1
the Clean Water Act, if he had an opinion
2
based on his understanding of the Clean Water
3
Act.
4
MR. ANDES: I still think it's a legal
5
question. He's not a lawyer.
6
HEARING OFFICER TIPSORD: Give me a
7
second. I'm trying to think of another word
8
other than requires that wouldn't be a legal
9
interpretation.
10
How about this. Why don't you
11
give us your opinion based upon your lay view
12
of the Clean Water Act and your knowledge as
13
a lay person.
14
DR. MACKEY: That's pretty easy to do.
15
Well, first of all, again, just to
16
reemphasize, my expertise is not in the Clean
17
Water Act, and it is focussed on
18
characterizing and mapping of habitat. And
19
the answer for this for you is very short. I
20
don't believe, as a lay person, that the
21
Clean Water Act specifies or defines what a
22
desired aquatic community is. However, it
23
would seem reasonable to assume that there
24
would be a correspondence between desired
158
1
aquatic communities and aquatic life uses for
2
general waters. Okay.
3
MS. DIERS: I'm going to strike
4
Question 65.
5
Sixty-six: Do you believe the
6
CAWS waters have the capability to
7
potentially support balanced populations of
8
aquatic organisms?
9
MR. ANDES: And he's answering this
10
again as a lay person with his own judgment,
11
not as a legal matter?
12
HEARING OFFICER TIPSORD: Absolutely.
13
MS. DIERS: Right.
14
DR. MACKEY: With the appropriate
15
caveats, this is a really short answer. On a
16
system-wide basis, no.
17
MS. DIERS: I'm going to strike
18
Question 67.
19
68: Of the states that have
20
aquatic life uses based on the concepts of
21
tiered aquatic life use approach, do you know
22
of any aquatic life uses that are defined by
23
lists of particular species or taxa of
24
aquatic organisms? And, if so, could you
159
1
provide some explicit examples.
2
DR. MACKEY: Yeah. Again, with the
3
caveat that I have -- I think I mentioned
4
earlier that I'm not an expert on the UAA and
5
the aquatic life use designations. My
6
expertise is primarily focussed on
7
characterizing and mapping physical habitat
8
and linking those habitats to physical
9
processes.
10
But in response to this
11
question, I do not believe that lists of
12
particular species or taxa of aquatic
13
organisms should be used to define an aquatic
14
life use. I need to make it clear, nor have
15
I suggested such, in my prefiled testimony.
16
However, I do believe that is incumbent on
17
Illinois EPA to clearly explain all the
18
anticipated biological outcomes that will
19
result from a set of actions taken to achieve
20
proposed aquatic life use. Unfortunately,
21
Illinois EPA has not defined what tolerant or
22
intermediately tolerant fish communities are,
23
nor have they identified the species
24
associated with those communities.
160
1
Second, Illinois EPA has
2
not described the measures or metrics used to
3
assess whether or not the proposed aquatic
4
life uses are attained. Depending on the
5
metrics used, a description of the fish
6
communities and/or species anticipated would
7
probably be required for the CAWS. And,
8
third, the CAWS is an artificial system, and
9
the tolerant or intermediately tolerant fish
10
communities, whatever they are, anticipated
11
to be within the CAWS are likely to be
12
different than tolerant or intermediately
13
tolerant fish communities in a degraded
14
natural system. The organisms that live in
15
the CAWS today are opportunistic and are
16
severely limited by the artificial nature of
17
the CAWS.
18
So if you're thinking, well,
19
jeeze, if other states have tolerant and
20
intermediately tolerant descriptions, that's
21
based on a natural system. And those are
22
from a natural system that has become
23
degraded. Those types of communities,
24
whatever they are, may be different than the
161
1
CAWS which has started from basically a
2
concrete pipe and is basically moved upward
3
and has become colonized by organisms that
4
happen to be passing through the system. I
5
think that there would be a difference
6
between the two.
7
MS. WILLIAMS: Dr. Mackey, can I ask a
8
follow-up, what you base that opinion on?
9
DR. MACKEY: Pardon?
10
MS. WILLIAMS: What do you base that
11
opinion on that the tolerant organisms here
12
would be different here than in a natural
13
degraded system.
14
DR. MACKEY: It's an inference that
15
I'm making based on best professional
16
judgment. I have no data or information that
17
would suggest that that would be the case.
18
MS. WILLIAMS: That's professional
19
geologic judgment or --
20
DR. MACKEY: I'm not sure I would call
21
it geologic judgment.
22
MS. WILLIAMS: Can you give examples?
23
DR. MACKEY: I cannot give an example
24
of that. It's just one would think that in a
162
1
system that is natural and is degraded, that
2
there were existing communities, say existing
3
biological communities that exist for
4
organisms. And as you degrade those systems,
5
that community structure may change. And,
6
again, this is an assumption I make in just
7
having general discussions with fisheries
8
people.
9
MS. WILLIAMS: And do they mean that
10
the specific species that would be present
11
are different or the relative abundance of
12
certain species?
13
DR. MACKEY: It could be either. It
14
could be either.
15
MS. WILLIAMS: But you can't point to
16
any examples?
17
DR. MACKEY: I cannot point to
18
anything. I just -- The point I'm trying to
19
make here is that, again, I believe that
20
there is a difference between a natural
21
system that is degraded and an artificial
22
statement that has been created from nothing
23
and has been opportunistically colonized by
24
organisms that happen to be passing through
163
1
the system. And to assume that both of those
2
types of systems would be equivalent or would
3
have similar characteristics, I do not
4
believe is a reasonable assumption.
5
MS. WILLIAMS: But aren't you making
6
the assumption also that they're different?
7
I don't understand how that assumption is
8
more reasonable.
9
DR. MACKEY: Absolutely. But that's
10
my prerogative.
11
MR. ANDES: Well, you believe there's
12
a reasonable basis for the assumption that
13
these two water bodies would be different in
14
terms of the population they support?
15
DR. MACKEY: Yeah, I do. I do.
16
Definitely.
17
MS. WILLIAMS: Thank you.
18
MS. DIERS: I'm going to strike 69,
19
70, 71, 72, 73, 74, and go to, I believe,
20
Question 75. Just give me a minute.
21
Question 75: Did Mr. Rankin in
22
his report, Attachment R, indicate that
23
because of effects of often multiple
24
stressors, the biological results may
164
1
underestimate the potential attainment that
2
could be expected in the absence of such
3
stressors? In these cases, the QHEI and
4
metric scores at a site, scores of nearby
5
reaches, and accrual of important limiting
6
habitat factors and the loss of positive
7
habitat factors are used as evidence and in
8
support of given aquatic life use along with
9
the knowledge of the feasibility of restoring
10
the limiting factors.
11
DR. MACKEY: Yes.
12
MS. DIERS: On Page -- This is
13
Question 76: On Page 13 of your prefiled
14
testimony, you state, "In a statement of
15
reasons, the IEPA hypothesizes that increased
16
DO and reductions in temperature will
17
significantly improve fish diversity and
18
community structure within the CAWS. Would
19
you please identify the specific part in
20
Illinois EPA statement of reasons to which
21
you refer?
22
DR. MACKEY: IEPA or the Illinois EPA
23
has proposed incremental increases in the
24
minimum dissolved oxygen standards for the
165
1
proposed Aquatic Life Use A and B Waters on
2
Table 1, Page 50 in the IEPA statement of
3
reasons.
4
MS. WILLIAMS: I think we agreed that
5
was Page 60.
6
DR. MACKEY: I apologize. That's a
7
typo on my part. Thank you. Higher
8
dissolved oxygen standards are proposed for
9
Aquatic Life Use A waters to protect larval
10
and young-of-the-year fish emerging from
11
potential undocumented spawning sites in the
12
CAWS. Illinois EPA in the statement of
13
reasons on Page 48 also states that they
14
anticipate tolerant and intermediately
15
tolerant fish communities in response to the
16
proposed standards associated -- I'm sorry --
17
also states that they anticipate tolerant and
18
intermediately tolerant fish communities to
19
be present in response to the proposed
20
standards associated with Aquatic Life Use A
21
Waters. Since Illinois EPA has not presented
22
any data or information that would support
23
the contention that an incremental increase
24
in water quality standards will result in
166
1
attainment of the proposed aquatic life use
2
goals. Illinois EPA is hypothesizing that an
3
incremental increase in water quality, or the
4
dissolved oxygen standards, will result in
5
tolerant and intermediately tolerant fish
6
communities, whatever they are, since these
7
communities have not been defined.
8
MS. DIERS: I'm going to strike 77.
9
You might have answered 78, but I'll go ahead
10
and ask it anyway. On Page 14 of your
11
prefiled testimony you state, "Physical
12
limitations such as lack of shallow bank edge
13
habitats and riparian cover, lack of instream
14
cover diversity, in quotes. Are you aware
15
that these types of habitat attributes are
16
taken into account in the QHEI?"
17
DR. MACKEY: Yes. These factors are
18
certainly considered in the QHEI scores.
19
However, many of the QHEI metrics and
20
submetrics are the same. In other words,
21
they've been held constant throughout a good
22
portion of the CAWS, and we've already
23
discussed that. And the scores reflect
24
variability, and only a few of the submetrics
167
1
used to calculate the overall QHEI scores.
2
Two of the most important metrics, substrate
3
and instream and bank edge habitat have not
4
been properly assessed due to a reliance on a
5
limited number of lively spaced point
6
samples, 20, to be exact. With minimum
7
ranges between sampling sites of about half a
8
mile, the mean is 4.3 miles and the maximum
9
distance is 15.8 miles. So there's an awful
10
lot of habitat there that we really don't
11
know that much about or have any data on.
12
For example, the substrates and instream
13
habitat at bank edge habitat in the 16-mile
14
long Cal-Sag Channel are characterized by
15
only two widely-spaced sampling sites 10.7
16
miles apart. My experience mapping aquatic
17
habitat in great lakes tributaries and near
18
shore areas clearly shows considerable
19
heterogeneity and habitat structure within
20
these systems. Unfortunately, existing data
21
are insufficient to properly assess substrate
22
distributions and instream habitat within the
23
CAWS. The ongoing habitat evaluation
24
improvement study is designed to address many
168
1
of those deficiencies.
2
MS. DIERS: I'm going to strike
3
Question 79.
4
Do you understand that the
5
proposed Aquatic Life Use A and B Waters by
6
Illinois EPA are designated uses that are
7
below the Clean Water Act goal?
8
DR. MACKEY: What question is this?
9
MS. DIERS: It's actually the last
10
question on prefiled Question 79. I struck
11
the beginning of it, but I'm going to ask the
12
last half.
13
DR. MACKEY: Okay. All right. Well,
14
I think we discussed this already a bit. I
15
think from the narrative description, yes,
16
the proposed Aquatic Life A and B designated
17
uses are below the Clean Water Act goal, but
18
from a standards perspective they are, in
19
essence, the same as the Clean Water Act
20
goal. And we talked about that, I think,
21
earlier this morning. In other words, in
22
terms of dissolved oxygen standards.
23
MS. WILLIAMS: I thought this morning
24
that you said that you didn't know if the
169
1
standard had all the components of the
2
general use.
3
DR. MACKEY: That's not what I stated,
4
I believe. I think I referred to that, the
5
table that was in the Illinois statement of
6
reasons, and that described the dissolved
7
oxygen as to whether or not that's an exact
8
lay-down. I said in essence. There may be
9
some minor variation of differences between,
10
but from a dissolved oxygen standard and for
11
all intents and purposes, it's basically the
12
same.
13
MS. DIERS: I'm going to strike
14
Question 80.
15
Question 81 on Page 15 of your
16
prefiled testimony you state, "For much of
17
the CAWS, fish richness and diversity has
18
improved remarkably since effluent
19
chlorination was terminated in 1984." Is it
20
true that MWRDGC did not dechlorinate prior
21
to this time?
22
DR. MACKEY: That quote, I believe, is
23
on Page 14 of my testimony. I think that's
24
an error in your question. Other than what's
170
1
published in the district fisheries report by
2
Dennison, et al., in 1998, I think it's
3
report 98-10, I do not know the
4
dechlorination history of the CAWS. I do not
5
have the background or expertise to evaluate
6
the potential effects of wastewater,
7
nitrification, nonfish-richness and diversity
8
within the CAWS, and nor am I aware of any
9
significant improvements in physical habitat
10
and quality overview from that time period.
11
That answers the entire question, okay?
12
MS. DIERS: So you -- Would you
13
consider the addition of nitrification to
14
wastewater treatment plants to also be major
15
factor --
16
DR. MACKEY: I have no opinion. I've
17
not done any. I don't have that expertise.
18
MS. DIERS: Question 82: On Page 15
19
of your prefiled testimony you state,
20
"Moreover, the existence of active angler
21
groups in bass fishing tournaments on the
22
waterway also suggest that for many species,
23
water quality, DO and temperature for much of
24
the CAWS is not a significant limiting
171
1
factor."
2
What is the scientific basis for
3
this statement and what species are you
4
referring to?
5
DR. MACKEY: The answer to this is
6
fairly simple. If fisherman are catching
7
significant numbers of largemouth bass in the
8
waterway, then current environmental
9
conditions in the waterway are not limiting
10
the abundance of the largemouth bass.
11
Anglers may be catching other species as
12
well, but I don't have a list of species
13
commonly caught on the waterway. And I would
14
refer you to fisheries biologists who worked
15
on the waterway to get a better assessment of
16
what fish are actually being caught there.
17
In terms of the species in this particular
18
statement, I was referring to largemouth
19
bass.
20
MS. DIERS: Do you believe the Agency
21
needs to establish dissolved oxygen standards
22
to protect largemouth bass?
23
DR. MACKEY: I would say at this point
24
no, because I think you've already got a --
172
1
from what I understand largemouth bass are
2
abundant within many portions of the CAWS.
3
And I would suggest that existing dissolved
4
oxygen levels are adequate to maintain the
5
largemouth bass population.
6
MS. DEXTER: Are you making a
7
distinction between an existing level and a
8
standard?
9
DR. MACKEY: I'm not sure that I am.
10
MS. DEXTER: Well, there is a
11
difference.
12
DR. MACKEY: Okay.
13
MR. ANDES: Was the question does he
14
think there should be any standard or does he
15
think that the standard should be tightened?
16
I think he was responding to whether he
17
thought the standard should be tightened.
18
MS. DEXTER: I think her question was
19
should dissolved oxygen standards protect
20
largemouth bass.
21
DR. MACKEY: In that case I would say
22
yes, the answer is yes. It certainly is an
23
appropriate species to be protected, yes. I
24
misinterpreted that question.
173
1
MR. ANDES: Do you think the existing
2
standards do already protect the largemouth
3
bass?
4
DR. MACKEY: Given the numbers of
5
largemouth bass, apparent numbers of
6
largemouth bass in the system, I would say
7
yes.
8
MR. ANDES: Thank you.
9
MS. WILLIAMS: Do you know what the
10
current levels of dissolved oxygen are in the
11
system?
12
DR. MACKEY: No, I do not.
13
MS. WILLIAMS: Do you know what the
14
current standards are?
15
DR. MACKEY: No. I'm not prepared to
16
answer that.
17
MS. WILLIAMS: Thank you.
18
MS. DIERS: I'm going to go to
19
Question 83. On Page 15 of your prefiled
20
testimony you state, "Certainly there
21
continue to be DO and temperature limitations
22
for other desirable less tolerant species."
23
Do you understand that the
24
proposed dissolved oxygen standards are based
174
1
on protecting early life stages as sensitive
2
as those as the channel catfish and other
3
life stages as sensitive as those of the
4
largemouth bass, USEPA 1986?
5
DR. MACKEY: That's my understanding.
6
MR. ANDES: Could you put your
7
statement into context in terms of what you
8
said in your prefiled testimony more fully?
9
MS. WILLIAMS: What did you ask, Fred?
10
I missed your question.
11
MR. ANDES: The statement that was
12
quoted, I asked him to please put it in
13
context.
14
DR. MACKEY: Okay. The place to quote
15
in context in the prefiled, in my prefiled
16
testimony, I said certainly there continue to
17
be dissolved oxygen and temperature
18
limitations for other desirable less tolerant
19
species. And that's what was in the
20
question. But also included, in parentheses,
21
which are not specifically identified in the
22
UAA report or Illinois EPA's statement of
23
reasons. But if suitable habitats are not
24
present, sustainable populations of these
175
1
species will not become established in the
2
CAWS irrespective of how much improvement
3
there is in water quality. So when taken in
4
context, I'm basically suggesting that the
5
habitat limitations in the CAWS may be more
6
significant or are more significant than some
7
of the apparent DO or temperature limitations
8
in the CAWS.
9
MS. DIERS: Question 84: On Page 15
10
of your prefiled testimony you state, "In
11
fact, fair to good Macroinvertebrate Biotic
12
Index, the MBI scores, from the in-water
13
column Hester-Dendy samplers an very poor MBI
14
scores within the CAWS sediments on our graph
15
samples suggest that water quality
16
improvements may already be sufficient to
17
support a more robust and diverse
18
macroinvertebrate community if suitable
19
habitats were present in the CAWS." That's
20
Wasik testimony. Is it true that in the
21
Wasik testimony -- the Wasik testimony does
22
not discuss nor provide any MBI data?
23
DR. MACKEY: You're correct.
24
Miss Wasik did not present nor discuss any
176
1
MBI data. This was a typo in my prefiled
2
testimony. The corrected version should
3
state, quote, "If suitable habitats were
4
present in the CAWS, and then parentheses,
5
prefiled testimony of Dr. Melching on Page
6
9."
7
MS. DIERS: What is the MBI based on?
8
DR. MACKEY: Again, my expertise is in
9
habitat and not in macroinvertebrate
10
communities. So I am not, I think, qualified
11
to answer that question in terms of -- Oh,
12
okay.
13
However, just follow on, a
14
description of the macroinvertebrate biotic
15
index and sampling protocols as used by
16
Illinois IPA and the CAWS UAA contractor are
17
described in more detail in the CAWS UAA
18
report in Attachment B. And that's on Pages
19
4-17 through 4-19. And in answer to that
20
question based on the description, again, I
21
don't actually calculate MBIs. I don't pick
22
bugs, at least these types of bugs. The MBI
23
is based on the pollution tolerance for
24
individual species where the average
177
1
tolerance ratings are rated by species
2
abundance.
3
MS. DIERS: Question 85: On Page 15
4
of your prefiled testimony you state, "The
5
substantial investment needed for
6
infrastructure to provide incremental
7
increases in DO and/or reductions in
8
temperature will not yield a proportionate
9
biological response with respect to attaining
10
sustainable fish communities and/or
11
beneficial uses."
12
What is the substantial
13
investment to which you refer?
14
DR. MACKEY: I was making a general
15
comment based just on common sense. And that
16
is if you're going to spend substantial sums
17
of money to upgrade the infrastructure to
18
meet new proposed aquatic life use standards,
19
then you'd better be sure that you do
20
homework to be sure, No. 1, it's going to
21
work and that it's cost-effective, and that
22
the anticipated benefit's worth the cost.
23
MS. DIERS: So you haven't
24
performed --
178
1
DR. MACKEY: No. I do not have that
2
expertise or capability. I can't balance my
3
checkbook, according to my wife, so.
4
MS. DIERS: Question 86: On Page 16
5
of your prefiled testimony you state, "The
6
lack of diverse bank edge and instream
7
habitats in the CAWS may be a much more
8
significant limitation on the development of
9
sustainable fish communities and current
10
levels of DO or temperature." Do you believe
11
that current levels of DO and temperature in
12
the CAWS are having no detrimental impact on
13
the present fish community?
14
DR. MACKEY: Illinois EPA has not
15
presented any data or information that would
16
support the contention that a system-wide
17
incremental increase in dissolved oxygen
18
standards or reductions in temperature result
19
in attainment of the proposed aquatic life
20
use goals. Illinois EPA has not presented
21
data sufficient to show that current
22
dissolved oxygen or temperature levels are
23
having a detrimental impact on the present
24
fish communities. If this were the case, one
179
1
would expect frequent fish kills in the
2
waterway. However, it's my understanding
3
that fish kills are not common which would
4
suggest that current DO and/or temperature
5
levels are adequate to maintain and support
6
the fish -- the existing fish and aquatic
7
communities that are currently in the
8
waterway. So I guess my answer is no, I
9
don't -- I don't see evidence that the
10
dissolved -- the current dissolved oxygen
11
levels are necessarily having a detrimental
12
impact on the fish communities in the
13
waterway.
14
MS. DEXTER: Did you say that you also
15
believe that was true with temperature also?
16
DR. MACKEY: I've not -- It's in my
17
statement that I've responded to, but I have
18
not done an analysis of temperature. So I
19
will step back from that and say that's not
20
my area of expertise.
21
MS. DIERS: To be negatively affected
22
by low DO or temperature, do fish have to
23
die?
24
MR. MACKEY: Not necessarily, I would
180
1
think. But I would think that that would
2
certainly, if you have fish kills, that would
3
be one reason to have for those fish to die,
4
of coarse, would be low dissolved oxygen
5
levels. And that does occur in some areas in
6
the Great Lakes. And we have what they call
7
the Dead Zone in the central basin of Lake
8
Erie.
9
MS. DIERS: Question 87: Do you
10
believe that the chemical, physical, and
11
biological information available from the
12
CAWS indicates that insufficient physical
13
habitat conditions are the primary reason for
14
the existing low fish IBI scores in the CAWS?
15
DR. MACKEY: Again, qualifying this
16
more as a lay person because of the IBI
17
scores, that's not something I calculate
18
directly. But from the perspective of a
19
habitat, yes, I believe the CAWS has a
20
habitat limited system and that limited
21
habitat availability is the primary cause of
22
existing low fish IBI scores in the CAWS.
23
However, I do not agree with the statement
24
that the physical habitat has been degraded.
181
1
The CAWS channels were originally constructed
2
and maintained without regard to habitat or
3
ecological function. The CAWS channels --
4
I'm sorry -- high quality physical habitat
5
has never existed in the CAWS; and,
6
therefore, degradation has not occurred. In
7
fact, current waterway system is, for the
8
most part, entirely artificial and does not
9
bear any resemblance to the natural
10
conditions that existed prior to construction
11
of the waterway.
12
MS. DIERS: Question 88: Is it your
13
opinion that the habitat index that I believe
14
you're involved with working on will show
15
that the aquatic life uses proposed by
16
Illinois EPA for the CAWS are not attainable?
17
DR. MACKEY: That's what we discussed
18
earlier. I'm not directly involved with the
19
development of that habitat index at this
20
time. And so really I can't predict if the
21
habitat index will show whether or not the
22
aquatic life use as proposed by Illinois EPA
23
for the CAWS are attainable. I do believe
24
that a new habitat index will provide a more
182
1
accurate assessment of habitat quality in the
2
CAWS and in other urban systems as well. And
3
I think that the assessment will be much more
4
appropriate than an assessment that's based
5
on existing indices that are derived from
6
natural systems.
7
MS. DIERS: Question 89: How will a
8
CAWS specific habitat index be used to
9
determine the biological potential; i.e., the
10
best possible biological conditions assuming
11
that all reversible -- reversible detrimental
12
impacts are mitigated?
13
DR. MACKEY: Again, same caveat
14
applies about my involvement with or the
15
involvement of the habitat index. As I
16
mentioned in the previous statement, I
17
believe that a new habitat index will provide
18
a more accurate assessment of habitat quality
19
in these urban systems and artificial
20
systems. And I would envision this new index
21
being applied in conjunction, perhaps, with a
22
more rigorous biological index, something a
23
bit different than the IBI. How that would
24
play out and whatever I don't know, but I
183
1
would think that there may be a more
2
appropriate or a different type of biological
3
evaluation that would be applicable in these
4
types of artificial or highly modified
5
systems. And what I would envision is the
6
linkage of these two types of indices and
7
give us a very powerful tool to evaluate not
8
only habitat, but the biological linkages to
9
that habitat; and, even more importantly, it
10
would be done at a much finer scale than
11
we're currently doing it now, which would
12
give us a much better feel for where
13
potential enhancement or improvement
14
opportunities may exist within the system.
15
And I think that's -- We'll have to wait and
16
see what the results are from habitat
17
assessment evaluation and improvement study.
18
But I think that there is a potential here to
19
develop something that could be incredibly
20
useful and helpful in terms of moving this
21
process forward.
22
MS. DIERS: That's going to take me to
23
Question 9 on Page 96. When was it
24
determined that the habitat evaluation and
184
1
improvement study referred to on Page 16 of
2
your prefiled testimony needed to be done?
3
DR. MACKEY: This is Question 9?
4
MS. DIERS: Yes.
5
DR. MACKEY: I have go up here.
6
Question 9. I don't know -- I'm not privy to
7
the internal machinations or discussions of
8
the District. All I can answer is that the
9
District issued a request for proposals in
10
the fall of 2007 for the habitat evaluation
11
improvement study. I have to assume that
12
sometime before that that the District made
13
the decision that they needed more detailed
14
and accurate habitat information.
15
MS. DIERS: So, in your opinion, is
16
this habitat evaluation and improvement
17
study, is it redoing what CDM did with the
18
UAA or will it be building on what was done
19
with the UAA Attachment B?
20
DR. MACKEY: Well, in answer to your
21
question, the -- I'm not sure that's
22
necessarily redoing the CDM report. My
23
understanding is that the study is focussed
24
on characterizing the physical habitat
185
1
characteristics and evaluating the biological
2
communities, some very specific taxa that may
3
be important to the system that use those
4
habitats within the CAWS. We have a handout
5
here, and Fred will -- and then we can
6
discuss this for a few minutes. This was an
7
attachment in my prefiled testimony, I
8
believe. It's also in color. Red, green,
9
and black, as I said, are the only colors I
10
have.
11
HEARING OFFICER TIPSORD: This is an
12
attachment to your testimony.
13
DR. MACKEY: I believe it's
14
Attachment 3 to my prefiled testimony.
15
HEARING OFFICER TIPSORD: For ease of
16
reference, and since this one is in color,
17
we'll mark this as Exhibit 184, if there is
18
no objection.
19
Seeing none, it's Exhibit 184.
20
MS. WILLIAMS: You just want to break
21
the exhibit record, don't you?
22
HEARING OFFICER TIPSORD: I'm working
23
on it.
24
DR. MACKEY: If this wasn't in color,
186
1
would it still be an exhibit?
2
HEARING OFFICER TIPSORD: No. It's
3
because of the color. It makes it Christmas.
4
MR. ANDES: We'll remember that for
5
future handouts.
6
DR. MACKEY: It has to be seasonal,
7
right? Okay.
8
I'm not going to go through
9
everything on this thing, but what this
10
really does is it describes some of the major
11
sort of assessment factors or characteristics
12
which I think are important in terms of
13
looking at physical habitat and some other
14
aspects of this system. And whether or not
15
those assessment factors, what they're really
16
applicable to, whether they're applicable to
17
natural and/or artificial types of systems.
18
And what I've done is on the two columns to
19
the right, the column that says Rankin 2004
20
CAWS UAA and the statement of reasons, this
21
is basically in red a summary of sort of the
22
approach that was taken up to this point in
23
terms of the current habitat assessment and I
24
believe analysis, as I understand it. And
187
1
then on the right-hand side is the habitat
2
evaluation improvement study, and there's a
3
bit more of a detailed description of some of
4
the similarities and differences that this
5
study is going to be actually, from what I
6
understand, going to be doing. This document
7
was reviewed and updated by LimnoTech. So I
8
think it is a reasonable summary of what the
9
habitat evaluation and improvement study will
10
be doing.
11
Just to sort of skip on down
12
here, there's going to be some more sampling
13
work done. It will be geospatially
14
integrated with the continuous monitoring
15
stations. LimnoTech has run a survey of all
16
the bank areas in the CAWS. They actually
17
hooked up a video camera and tied it to the
18
GPS and actually ran a boat up. So they have
19
pictures along all of the CAWS shoreline now
20
with GPS coordinates. So for the side-scan
21
data we can tie that and integrate it right
22
together geospatially into a series of
23
different types of data layers.
24
Again, there's the, let's say,
188
1
the type and extent of substrates. They are
2
using all of the historic data, and that
3
would include CAWS UAA report data. So none
4
of that is going to be chucked out the window
5
necessarily. But I believe they also will be
6
using some newer techniques such as some of
7
the side-scan sonar and other data to
8
integrate this altogether.
9
In terms of substrate quality,
10
they are going to be looking at the sediment
11
quality data which is talking about grain
12
size. And if I recall from Dr. Melching's
13
description when he's talking about the
14
macroinvertebrate communities, it was a real
15
concern about the predominance of silt in
16
some areas of the waterway. And that was a
17
major limitation. I think they're also
18
looking at some of the inorganic chemical
19
data, some of the potential trace metals,
20
contaminants, and toxicity issues; and
21
looking at some of the historic chemistry and
22
contaminants data as well.
23
Instream habitat, they're looking
24
at the 30 sampling sites, and that's based in
189
1
part on physical habitat characteristics.
2
It's also linked back to some of the
3
biological sampling sites. And also that
4
will be tied in with the -- with some of the
5
side-scan data as well. The type and extent
6
of shoreline and bank edge habitats, we've
7
already talked about that. That's the
8
digital shoreline video. Riparian cover,
9
it's the same sort of thing where part of it
10
is based on the video data and then you've
11
also got some high resolution aerial
12
photography. They're not doing anything with
13
flow regime or water levels. And the reason
14
is this is primarily a regulated system, and
15
the chances for us really modifying the flows
16
in this system, you're not going to -- You
17
know, it's going to be regulated by the
18
lochs, it's going to be regulated for
19
navigation purposes, it's going to be
20
regulated for public health and safety. We
21
don't want to flood out the south side of
22
Chicago during a major storm event -- or the
23
north side either, as a matter of fact. I
24
think that happened recently. In fact, when
190
1
I was up in the North Shore Channel, I was
2
driving -- there was a pontoon boat. It was
3
actually flipped upside down on top of the
4
dock, and the motor was upside down as well.
5
And I think that was the result of some of
6
this flooding activity. That's a side point.
7
Water quality is a rigorous
8
evaluation of the continuous dissolved oxygen
9
data. And they have other supplemental
10
sites. Again, the details of that I'm not as
11
familiar with. They are working on a new
12
physical habitat metric --
13
MS. DIERS: Dr. Mackey, can I stop you
14
for just a second?
15
DR. MACKEY: Please.
16
MS. DIERS: Just so I understand,
17
LimnoTech is going all this work? Not you?
18
DR. MACKEY: That's correct.
19
MS. DIERS: Are you assisting
20
LimnoTech?
21
DR. MACKEY: Yes.
22
MS. DIERS: Exactly what are you doing
23
for LimnoTech?
24
DR. MACKEY: I have a subcontract with
191
1
them to acquire side-scan sonar data within
2
the CAWS, and then to assist them down the
3
road once we see what are the different
4
characteristics that come out of the side
5
scanning, how can we best integrate that in
6
with these other different data sets, the
7
historic data sets, and the data that is
8
currently being collected by their biologists
9
and by their sampling.
10
MS. DIERS: Do you know when the new
11
biological index you mentioned will be
12
completed?
13
DR. MACKEY: I do not know. I believe
14
the study is anticipated to be completed
15
sometime in the summer of 2009, but that was
16
an estimate several months ago. I don't know
17
if there's been an update or a change in that
18
date.
19
MS. DIERS: And do you know if this
20
study, is it going to have to go through peer
21
review and everything? Do you know how
22
that's going to work?
23
DR. MACKEY: I would suspect -- Again,
24
that's something that just -- this is work
192
1
being done for the District, and that would
2
be up to the District to decide as to what
3
sort of external review or peer review would
4
be required. I would suspect that a portion
5
of this work were to be published in a
6
scientific journal that it would undergo
7
professional peer review as any sort of
8
publication would.
9
MS. DIERS: So do you know if that
10
2009 date we talked about, did that factor in
11
a peer review time frame?
12
DR. MACKEY: I have no idea.
13
MR. ANDES: We can address some of
14
those issues. I know there were some issues
15
about the habitat study addressed to the
16
District witnesses Wasik and Dennison. They
17
can answer some of those questions. And then
18
if we need to bring in folks from LimnoTech,
19
the managers of that project, we can make
20
available to answer more detailed questions.
21
MS. DIERS: Thank you.
22
DR. MACKEY: I don't need to go
23
through the rest of this?
24
MS. DIERS: No. It speaks for itself.
193
1
DR. MACKEY: But you understand it
2
gives you a pretty good summary of the
3
detailed work that's ongoing, and they've
4
made very good progress to date from what I
5
understand.
6
MS. DIERS: Thank you. Question 91:
7
On Page 18 of your prefiled testimony you
8
state that, "The objective of the habitat
9
evaluation and improvement study is to
10
identify the most efficient and
11
cost-effective means to further protect and
12
enhance aquatic life use waters and
13
associated benefited uses in the CAWS."
14
Is the primary objective of
15
the habitat and evaluation improvement study
16
to determine the best attainable aquatic life
17
uses required by Clean Water Act in the CAWS?
18
DR. MACKEY: Counsel has reminded me
19
that I'm speaking as a nonlawyer, and this is
20
from a layman -- a lay person's perspective
21
here.
22
HEARING OFFICER TIPSORD: Often more
23
informed than the attorneys.
24
DR. MACKEY: Pardon?
194
1
HEARING OFFICER TIPSORD: Lay person
2
often more informed than attorneys.
3
DR. MACKEY: I'm not going to --
4
MR. ANDES: No objection.
5
DR. MACKEY: I'm sitting right next to
6
Fred here, okay? This is a dangerous place
7
to be.
8
The habitat evaluation
9
improvement study is designed to address
10
physical habitat characteristics of the CAWS
11
and to develop and apply new habitat metrics
12
and indices that are appropriate for urban
13
waterways or artificial waterways. This
14
study may develop a more rigorous biological
15
index based in part on habitat suitability
16
analysis for taxon, and linkages would be
17
developed; the more detailed and
18
comprehensive evaluation of biological
19
potential than is currently possible.
20
A comprehensive geospatial
21
data set also be developed to link together
22
environmental data sets associated with the
23
CAWS. And a copy of the District's request
24
for proposals, I believe, was attached to my
195
1
written summary report, and I believe it was
2
Attachment M if you want to see the details.
3
And where I'm going with this, what I've just
4
said, is that all of these are components and
5
things that need to be considered in terms of
6
moving toward determining what the best
7
attainable aquatic life uses are going to be
8
that are required by the Clean Water Act.
9
What I cannot say that this report
10
specifically, in terms of its objectives and
11
goals at this stage, is to come up with
12
recommendations for, let's say, new aquatic
13
life uses for the CAWS. But I think it puts
14
some pretty good pieces of the puzzle into
15
place. That will allow others to move
16
forward to get to where you want to be in
17
terms of actually identifying attainable
18
aquatic life uses that are appropriate for
19
the CAWS.
20
MS. DIERS: Do you believe habitat
21
improvements are not possible anywhere in the
22
CAWS; and, if not, why not? And this is just
23
a follow-up question based on the habitat
24
we've been talking about today.
196
1
MR. ANDES: Can you restate that?
2
MS. DIERS: Do you believe habitat
3
improvements are not possible anywhere in the
4
CAWS; and, if not, why not?
5
DR. MACKEY: I believe we touched on
6
this topic this morning, is that I do -- I do
7
not believe that there is no hope for the
8
CAWS. I do believe that there may be reaches
9
in the CAWS or areas within the CAWS where
10
either existing habitat characteristics,
11
which are very limited at this point, but
12
there may be opportunities for some types of
13
habitat enhancements or perhaps different
14
management strategies that would allow us to
15
improve the habitat conditions in the CAWS.
16
I can't answer specifically where or how that
17
would be done, because right now I don't
18
believe we have adequate data, habitat data
19
inhouse to make that type of assessment.
20
But, again, you know, the habitat evaluation
21
and improvement study, one of the objectives,
22
I think, is to identify potential
23
opportunities for enhancement or improvement
24
in the system. And I think with some of that
197
1
data, perhaps coupled with other information,
2
one could probably -- certainly I think we
3
could see improvements in the system. But I
4
don't think you'll see it on a system-wide
5
basis. I think there will be more local
6
improvements on a system-wide basis.
7
MS. DIERS: I'm done with my prefiled
8
questions. I think Miss Williams might have
9
a question she wanted to follow-up with.
10
MS. WILLIAMS: I just want to
11
follow-up real quick on a question that was
12
asked of Mr. Melching that he punted to
13
future witnesses, and you were one of the
14
folks he named. I'm not sure that he should
15
have named you, so I just want to --
16
DR. MACKEY: That's okay.
17
MS. WILLIAMS: I want to clear that up
18
just in case we don't have you back again.
19
DR. MACKEY: Steve Melching doesn't
20
get mad, he gets even. So he's getting even.
21
MS. WILLIAMS: He was asked, it was
22
Question 11 on Page 84 of his testimony, he
23
was asked about wet weather standards and how
24
whether wet weather standards would be
198
1
intended to protect recreational aquatic life
2
uses and whether -- how can aquatic life
3
potential vary before and after a storm
4
event. And he thought maybe you or
5
Mr. Friedman or others would better to answer
6
that question.
7
MR. ANDES: The question is how
8
aquatic life uses can vary or is it
9
potential?
10
MS. WILLIAMS: Potential, aquatic life
11
potential.
12
DR. MACKEY: I'm trying to find out
13
what the question is here, what are you
14
asking? Is that how the aquatic life use
15
potential may change as a function of wet
16
weather impacts or whatever? I really don't
17
have the expertise to answer that question.
18
The only area I might be able to touch on
19
that might be that it's from flow regime
20
perspective, if you have very high flows that
21
could be associated with wet weather. It may
22
have potential to change some of the bottom
23
habitat structure perhaps some of the grain
24
size of the material that is potentially
199
1
available to be transported. But I can't
2
really speak to some of the other wet weather
3
impacts or the time dependencies which he was
4
discussing in his testimony.
5
MS. WILLIAMS: Okay. Thank you. I'll
6
continue.
7
HEARING OFFICER TIPSORD: Miss Dexter,
8
you had some prefiled questions?
9
MS. DEXTER: Yes. And I have a couple
10
of follow-ups before I ask, before I ask the
11
prefiled questions. My first you had listed
12
a number of rivers that you've studied
13
previously. How many of those are artificial
14
systems that you would liken to this system?
15
DR. MACKEY: None of them are
16
artificial systems like the CAWS. I'm not
17
sure I would call the CAWS to be a unique
18
system, but it's a very rare and unusual type
19
of system. I would say the closest system
20
that I have worked in that is similar to this
21
would be the Don River in Toronto.
22
MS. DEXTER: Is that D-O-N-N?
23
DR. MACKEY: D-O-N, just the Don
24
River. That is the river system that -- It
200
1
is a natural river, but there are extensive
2
portions that had been channelized. It's a
3
straight channel reach, and either have sheet
4
pile structures or concrete or timber crib
5
structures along both banks. It is in
6
downtown Toronto, so it is every bit as urban
7
as downtown Chicago. It's concrete parking
8
lots right up to the edge, very few trees.
9
The only trees that are there are, in some
10
cases, there's woods on the bridges of which
11
there are tens of them going across. The
12
main difference in that system between the
13
CAWS is that it's considerably shallower
14
water depth. It is not used for any sort of
15
navigation. In fact, I think our boat, which
16
was an 18-foot John boat was probably the
17
only boat that had been up there in about six
18
months. And it is almost completely, the
19
substrate on bottom is almost completely a
20
median defined sand and some gravel.
21
Virtually no clay exposed, no bedrock
22
exposed. Discharges, it's an extremely
23
flashy system, and by that I mean that
24
because it is in an urban environment is that
201
1
water hits that pavement, it runs off and the
2
flood peaks are almost instantaneous and
3
very, very high.
4
The interesting thing is down
5
at the bottom where it flows into Lake
6
Ontario, this is going into the eastern-most
7
of the great lakes, the river actually takes
8
a 90 degree turn and heads due west, and it's
9
all armored. There are boats and ships.
10
It's just like a port where there are loading
11
and offloading facilities there. The reason
12
I'm involved in that work is that we are -- a
13
number of us have been thinking a lot about
14
river mouth systems, river mouths, which in
15
virtually all of the rivers in the great
16
lakes are highly altered, channelized, and
17
carved in shoreline banks very much like the
18
CAWS. And the Toronto Regional Conservation
19
Authority has, I think, around $65 million,
20
it's Canadian, but $65 million, and they are
21
looking to do habitat restoration and
22
actually modifying the channel design down at
23
the mouth of the river to try to attempt to
24
restore some of the natural habitat
202
1
functionality there. And so they'll
2
straighten the channel, they'll do some other
3
things. The issues are the same, though, in
4
the sense that they still have flooding
5
issues and storm water issues to deal with.
6
There's public health and infrastructure.
7
And those are all things that you have to
8
consider in these urban environments just as
9
you do in the CAWS. Because for the sake of
10
habitat, you can do certain things, but if it
11
floods out half the city, habitat is not
12
going to be a very popular issue, okay.
13
MS. DEXTER: Okay. Also earlier today
14
you stated that the Sanitary and Ship Canal
15
and the Cal-Sag are more similar than they
16
are different. Can you tell me whether the
17
Sanitary and Ship Canal has a shallow
18
littoral zone as the Cal-Sag does?
19
DR. MACKEY: In some areas there is a
20
shallow littoral zone. It's not as extensive
21
or as well developed or necessarily -- it's
22
not necessarily 80 percent of the San-Ship,
23
but there is something -- there is -- There
24
are some shallower water areas where the
203
1
channel widens out. And basically once you
2
get north of some of the bedrock areas and
3
you go more into the clay areas, you'll see
4
armor stone revetments that are behaving very
5
similarly to the coarse blocks that I
6
described in the Cal-Sag. The other issue,
7
as I mentioned before, along the vertical
8
bedrock walls. These are things that you
9
wouldn't necessarily be able to check very
10
easily, but on the side-scan it's very clear
11
that there is a series of lineal ridges that
12
are right along the edge of that bank and
13
it's made up of somewhat coarser material.
14
And that extends for, you know, it is
15
discontinuous. It also happens to have a few
16
car bodies down there as well, so there's
17
some anthropogenic in stream habitat as well.
18
MR. ANDES: I'm sorry to clarify. You
19
were saying that in the Cal-Sag, and I assume
20
this to be the same case possibly in the Ship
21
Canal, those could provide habitat for
22
predators, but you would not believe it would
23
provide spawning habitat?
24
DR. MACKEY: That's correct. That's
204
1
correct.
2
MS. DEXTER: Do you think it would be
3
reasonable to set water quality standards to
4
protect species presently found in the CAWS?
5
DR. MACKEY: I would think that that
6
would be appropriate, sure.
7
MS. DEXTER: Okay. My next question
8
is regarding your Exhibit 180 that you passed
9
out today.
10
MR. ANDES: Which one was that?
11
MS. DEXTER: It's the Exhibit 180, the
12
circle graph. Under water mass, you describe
13
that he -- you describe temperature as one of
14
the qualities of water mass. Is that -- Do
15
you think the temperature is a component of
16
habitat?
17
DR. MACKEY: I do from the perspective
18
of I'm thinking about the seasonal
19
fluctuations that occur in temperature, and
20
from what I understand how temperature is one
21
of the primary triggering mechanisms to
22
initiate certain types of, say, spawning
23
activity or when fish move up into tributary
24
systems to begin their spawning runs or
205
1
whatever. And that's the reason that I think
2
that -- that's the context in which I'm
3
discussing temperature here. In the great
4
lakes, that's on the riverine system. On the
5
great lakes, many times in the summer there's
6
a thermal structure that's built in the
7
lakes. You have a thermal climb where the
8
upper 10 or 15 meters are much warmer, and
9
then you go through a very rapid drop-off,
10
and then below about 15 meter water depths
11
and the water is incredibly cold. And it
12
turns out that a lot of the fish communities
13
and how they're geographically distributed
14
and the types of communities are tied very
15
much to that temperature, internal
16
temperature structure within the lakes. And
17
that in the fall that whole thing just
18
basically turns over as the upper waters cool
19
down. In a riverine system or in a system
20
such as the CAWS, I suspect that the
21
turbulence is such, and even though the flows
22
aren't great, there's still enough mixing of
23
the water column that you're -- you probably
24
cannot get that type of -- that temperature
206
1
stratification at least in the active areas
2
that you get in the lakes.
3
MS. DEXTER: Do you have any reason to
4
believe that this system is being impacted by
5
temperature?
6
DR. MACKEY: I've not evaluated any of
7
the temperature data or information in this
8
system, so I can't answer your question.
9
MS. DEXTER: Okay. I'm looking now to
10
my prefiled questions. I don't know given
11
your answer to that how well they are, but
12
I'll try. In various parts of your
13
testimony, you mention temperature effects as
14
something you do not believe that IEPA has
15
adequately studied. What portions of the
16
CAWS do you believe need further study with
17
regard to temperature effects, if you
18
actually believe --
19
DR. MACKEY: Basically I say my
20
expertise is primarily focussed on
21
characterizing mapping and physical habitat
22
and linking those habitats to physical
23
processes. And, as I said just a short while
24
ago, the comments in my prefiled testimony
207
1
refer to temperature in a general way and
2
were primarily focussed on seasonal changes
3
in temperature that occur in natural systems.
4
I did not consider temperature in my prefiled
5
testimony, nor do I have any recommendations
6
on the need for further study with regard to
7
temperature effects.
8
MS. DEXTER: In that case, I'll strike
9
my second question and just ask this last one
10
here. Are there ways -- And I think you may
11
have answered this, but I'll just let you try
12
to again. Are there ways to categorize
13
subsections of the CAWS that make more sense
14
to you than the categories proposed by IEPA?
15
DR. MACKEY: Yes. As I've indicated
16
before, I think that there -- with more
17
detailed information such is that -- similar
18
to that which maybe coming out from the
19
habitat evaluation and improvement study.
20
We'll get a much better feel. And it's not
21
just for the habitat itself, but also for the
22
distribution and the pattern and
23
juxtaposition of that habitat. It's
24
important to understand that because I think
208
1
if you get the patterns right, I think you
2
have an opportunity to maybe do some things
3
on a more local basis or on a reach basis
4
that would be very effective in terms of
5
trying to reach some of the biological data
6
or biological outcomes that I think that you
7
folks are interested and I suspect others are
8
as well.
9
And that's the type of thing that
10
I think that really we need to focus on. You
11
get the best data that we can. And I'm not
12
talking about doing a study for the next 20
13
years. I think we can have some good data in
14
hand within the next year, maybe eight months
15
to a year from now that will allow us to move
16
forward in a very effective and intelligent
17
way. And that's what I hope to see.
18
MS. DEXTER: I just have one more
19
question, just because it occurred to me. Do
20
you think that habitat needs to be continuous
21
to be useful to fish?
22
DR. MACKEY: Not necessarily. And
23
by -- See, I would ask you what you mean by
24
discontinuous. Certainly the patch I nature
209
1
of habitat, you know, habitat -- you know,
2
the distribution of habitat, the pattern of
3
habitat is important. And it doesn't
4
necessarily mean that, you know, you
5
necessarily have a continuous sequence. This
6
goes back to my definition of connectivity
7
where I'm saying, hey, there are some limits
8
to this. There are time, distance
9
relationships, there are energy
10
relationships. I mean you can't expect a
11
fish to come out of a spawning bed and then
12
swim for 200 miles to get to the nearest
13
nursery habitat. It's just not going to
14
work. And there are examples, and I don't
15
think we need to go into it, but there are
16
examples in the number of the tribs where
17
I've worked where they've actually done the
18
calculations where really very much show the
19
upstream limits of how it could be effective
20
spawning habitat for certain species of fish,
21
primarily because of time and distance
22
relationships.
23
The Sandusky River is one of the
24
examples. If you want to show that stuff,
210
1
you can.
2
MR. ANDES: I would.
3
DR. MACKEY: You're in for it now,
4
guys.
5
MR. ANDES: We have two exhibits.
6
DR. MACKEY: He's been chomping at the
7
bit for this one.
8
HEARING OFFICER TIPSORD: He knows
9
he's falling down on his responsibility.
10
DR. MACKEY: Do you need to --
11
HEARING OFFICER TIPSORD: We've got to
12
beat all the records, not just the hearing
13
records.
14
DR. MACKEY: Do you want to go over
15
200 then?
16
HEARING OFFICER TIPSORD: I have been
17
handed a Side-Scan Sonar Mosaic of
18
Calumet-Sag Channel, which I will mark as
19
Exhibit 185 if there is no objection.
20
Seeing none, it's Exhibit 185.
21
DR. MACKEY: You should know that the
22
originals are in color.
23
MR. ANDES: My fault.
24
HEARING OFFICER TIPSORD: And the
211
1
lower Sandusky River Northwest Ohio, which
2
I'll mark as Exhibit 186 if there is no
3
objection.
4
Seeing none, it's Exhibit 186.
5
DR. MACKEY: Well, tied to this time
6
distance connectivity -- I'll get into these
7
things in a second here, but the time
8
distance relationships have to do with the
9
upstream limits of potential spawning
10
habitat. So we're in the process of pulling
11
out one of the largest dams in the great
12
lakes Boulder Dam, and opening up 22 more
13
miles of potential spawning habitat. We need
14
to know as to whether or not the fish are
15
actually going to use it and whether it
16
actually makes sense to do this. It turns
17
out the calculations suggest that it's
18
appropriate, but this has to do with the
19
whole connectivity issue.
20
So in answer to your question,
21
no, they don't necessarily have to be
22
continuous. What Fred has just handed out
23
are a little bit more extensive side-scan
24
data. I think you can see on the side-scan
212
1
sonar mosaic for the Calumet-Sag Channel,
2
this is basically an area, I don't know if
3
any of you have launched out of Howy's
4
Landing in Alsip boat ramp, but this is an
5
area that goes for about 1.2 or 1.3 miles
6
west from that. And you can see basically a
7
continuous coverage of the side-scan sonar.
8
And if you were to zoom in in the center of
9
that, you'll see where it says car. There
10
actually is a car on the bottom of the
11
Cal-Sag Channel. And for scale I've circled
12
a car on 294 there as well. So you can see
13
that we're, you know, this is like we're
14
probably 5,000 feet in the air when we're
15
looking at this system. And what I've done
16
is zoomed in on this one over here to the
17
east or on the right-hand side. This is
18
showing an area that was very similar to
19
Route 83 in a sense where you have, in this
20
case, the littoral zone is on the north side.
21
There's no hard concrete wall. You have
22
bedrock in the center of the channel and silt
23
on either side. Again, you're looking at
24
fairly large blocks again. So this shows you
213
1
again that this is laterally continuous for
2
quite a way. If you move for a little bit to
3
the west here, what you find is that the
4
character of the channel changes. Again, on
5
north side you have these large armor stone
6
rock slabs and blocks, but in the middle the
7
entire channel is still mud. So what we have
8
just done over a distance of perhaps a couple
9
tenths of a mile is transitioned from an area
10
where bedrock is actually exposed on the
11
channel bottom, and then I think the bedrock
12
actually takes a bit of a dive here, they
13
actually dug it a little bit deeper, and now
14
it's 100 percent silt. And this extends for
15
many miles until you get to within about
16
three miles of Route 83 where bedrock starts
17
coming back up again. And what I'm trying to
18
illustrate here is that if you have two
19
sampling points and if you look at the Cicero
20
bridge site, the two sampling points, there's
21
one just to right here or to the east, and
22
then over to the far left they both show
23
bedrock. And you would have completely
24
missed this stretch here which is almost 100
214
1
percent silt the bottom with no bedrock. So
2
there is a distinct difference in the
3
habitat -- the instream habitat and substrate
4
characteristics here which are not captured
5
because you have such a wide sample spacing.
6
The other thing I want to show is
7
on the Lower Sandusky River plot, this river
8
actually flows north into lake Erie into
9
Sandusky Bay and this is the lower reaches of
10
the river. The Ballville Dam is probably
11
another twelve river miles upstream from
12
here, and this is some work I've done with
13
the Ohio State University side-scan sonar.
14
This is a natural system. So what I want to
15
do with you just for a few seconds is to just
16
take a look at -- look at the structure and
17
what you see in the Cal-Sag and then look at
18
the different all the different patterns and
19
shapes and things that you see in the natural
20
system. This is the compare and contrast
21
between the natural and the CAWS and -- the
22
natural and the artificial systems. And you
23
can certainly see that it's a sinuous
24
meandering system. In this case it's
215
1
approaching Lake Erie water levels. So you
2
have some large shallow riverine embayments
3
which are great spawning habitats and great
4
nursery habitat. But at the areas that I've
5
highlighted, let's say the one to the left or
6
the center of the Lower Sandusky River that
7
sort of blow-up there, what you're seeing is
8
that these channels, because this channel is
9
created by the flow of the river, this is not
10
artificially dug or channelized. That there
11
is an internal structure to the river where
12
it's -- you have shallow water areas, and
13
then as you head towards the outside of the
14
bank and the flow is from the lower left to
15
the upper right in the system, the -- it
16
actually scours out a deeper pool, and in
17
there you have a range of different substrate
18
materials. You have sand, you have sand and
19
gravel, you have cobbles. You have exposed
20
cohesive clays which are the old lake bed
21
deposits. And you can see some of that sort
22
of lines and actually the bedding planes
23
there. And you also have lots of woody
24
debris here, too. There are trees and stumps
216
1
and logs, and there's some areas where these
2
materials preferentially accumulate. And
3
that's a function of the hydraulics of flow.
4
The point being is that this is the type of
5
thing that gives you incredible diversity in
6
terms of habitat. This is not present in the
7
CAWS for the most part. Now, the North Shore
8
Channel and a few other areas approaches
9
this. But this is what the natural system
10
should look like. And this is what -- This
11
is how you get aquatic diversity. It's
12
because of the habitat diversity. And these
13
patterns of the different types of substrates
14
and structures are connected together in a
15
pattern which organisms can use. They can go
16
to deep areas to rest, they can come out and
17
go to shallower water areas and feed or
18
spawn, and then they can move back and it's
19
connectivity of the different types of areas.
20
And that's the type of thing I'm not sure
21
you'll ever be able to mimic that type of
22
thing in the CAWS. So I think we have some
23
severe limitations there. But I wanted to
24
illustrate this is an important difference
217
1
between the natural system and an artificial
2
system which we have in the CAWS.
3
Same sort of patterns here on the
4
right-hand side, the sort of the blow-up
5
there. What's interesting there is that
6
there's woody debris, but they've also --
7
this an area where they've put in this
8
armored shoreline docks, large limestone
9
blocks, very similar to the limestone that we
10
have here or drop along the shoreline. And
11
you can see some of that extending down into
12
the river channel. Again, similar types of
13
habitat characteristics, not what I would
14
consider to be ideal spawning habitat, but
15
it's good predator habitat. And I know that
16
in this reach here there's really good
17
fishing.
18
So this is just a compare and
19
contrast and shows you what you can do.
20
Thank you.
21
MS. DEXTER: I'm done.
22
HEARING OFFICER TIPSORD: Anything
23
further for Dr. Mackey?
24
Let's take a ten-minute break
218
1
and we'll come back with Ms. Wasik.
2
(Short break taken.)
3
HEARING OFFICER TIPSORD: I think
4
we're ready to go back on the record. Could
5
we have Ms. Wasik sworn in.
6
(Witness sworn.)
7
HEARING OFFICER TIPSORD: And Mr.
8
Andes and I talked at the break. And rather
9
than resubmit Miss Wasik's testimony in the
10
form of hard copy since it's so large with
11
all the attachments, he's going to provide us
12
with a CD-ROM. If there's no objection, we
13
will mark the CD-ROM as Exhibit 187.
14
Seeing none, it's Exhibit 187.
15
And I understand Miss Wasik is going to
16
clarify some --
17
MR. ANDES: There are a couple of
18
points that were raised in the questioning of
19
Dr. Mackey that I think Miss Wasik will
20
provide some helpful information on. One of
21
them was as to the IBI scores and some errors
22
and corrections, and why don't you take that
23
one.
24
MS. WASIK: In terms of the mistakes
219
1
in calculating the IBI on Page 4-17 of the
2
UAA report, which I believe is Attachment B
3
to EPA's testimony, there's a Table 4-11 and
4
at the very bottom row it says fish numbers,
5
and it says that five points were given if
6
there were less than 200 fish caught and one
7
point was given if there was greater than 450
8
fish caught. Those were swapped. It should
9
be the opposite, because the more fish you
10
get the higher score should be reflected.
11
And then in Footnote C it says
12
excludes tolerant species. Special scoring
13
procedures are used when relative numbers are
14
less than 200 per .3 kilometers. And that
15
should read 200 per 1.0 kilometer, because
16
that is the nonwadable IBI. The .3 would be
17
appropriate for the wadable IBI. So that's
18
why we believe there are incorrect
19
calculations of the IBI.
20
MR. ANDES: And then in terms of the
21
comparison Dr. Mackey was making of the Use A
22
Water Quality Standards to the general use
23
standards, if you can compare those.
24
MS. WASIK: Dr. Mackey basically said
220
1
that the Aquatic Life Use A CAWS proposed
2
standards for DO were essentially the same as
3
the general use standards. The 5.0 minimum
4
during March through July is, indeed, the
5
same; during August through February there's
6
a 3.5 minimum and a 4.0 mean of minimums.
7
And then the difference is that in the
8
general use dissolved oxygen standards,
9
there's a 6.0 mean of means for a seven-day
10
mean of means, and there's also a 5.5 daily
11
mean averaged over 30 days.
12
MR. ANDES: And that's in the general
13
use standards?
14
MS. WASIK: Right. So that's the
15
difference. But then on Page 59 of the
16
IEPA's statement of reasons, it does state
17
that, however, Illinois EPA does not propose
18
these two chronic standards, meaning the
19
seven-day mean of means and the 5.5 daily
20
mean averaged over 30 days because this level
21
of protection is already provided by the
22
other applicable standards. Specifically for
23
early life stages, if dissolved oxygen
24
concentrations remain at all times above the
221
1
proposed acute standard of 5.0 milligrams per
2
liter, it is mathematically impossible for a
3
daily mean averaged over seven days to be
4
less than 5.0 milligrams per liter.
5
Similarly for other life stages, if seven-day
6
averages of daily minimum remain above the
7
proposed 4.0 milligrams per liter standard,
8
it is unnecessarily redundant to require that
9
daily means averaged over seven days remain
10
less than 4.0 milligrams per liter. So I
11
interpret that to mean that they actually
12
are, as Dr. Mackey said, essentially the
13
same.
14
MR. ANDES: Thank you.
15
MS. DEXTER: Could I just ask one
16
question to clarify. This is -- You just
17
compared CAWS Use A waters to the general use
18
waters. It doesn't apply to Use B?
19
MS. WASIK: Yes.
20
MS. DEXTER: Thank you.
21
HEARING OFFICER TIPSORD: With that I
22
think we're ready for the IEPA.
23
MS. WILLIAMS: I'd like to ask a
24
similar follow-up at this point.
222
1
HEARING OFFICER TIPSORD: Absolutely.
2
MS. WILLIAMS: Do you think the
3
general use standards are more stringent by
4
including the seven-day mean and the 30-day
5
mean of daily means?
6
MS. WASIK: My understanding based on
7
Page 59 is that they are the same because it
8
would be mathematically impossible to
9
actually violate one of the standards without
10
violating the chronic standard. I think
11
they're saying they're redundant. I'm just
12
trying to interpret what was in the statement
13
of reasons, but.
14
MS. WILLIAMS: Right.
15
MS. WASIK: But I think they're in
16
that way essentially the same.
17
MS. WILLIAMS: I think -- I don't want
18
to misparaphrase Dr. Mackey, but would you
19
agree with his testimony regarding if one of
20
the water quality standards is similar or
21
even the same as a general use standard that
22
that automatically means the designated use
23
must be the same as the general use
24
designated use?
223
1
MS. WASIK: I think the idea is that
2
because the aquatic life use is admittedly
3
not meeting or able to meet the Clean Water
4
Act goals that it should not have a general
5
use water quality standard that's reflective
6
of an aquatic life use that is meeting the
7
Clean Water Act goals.
8
MS. WILLIAMS: Do you agree in some
9
cases it would be possible for two different
10
aquatic life uses to require the same numeric
11
criteria to be protected?
12
MS. WASIK: I'm not sure why that
13
would be the case.
14
MS. WILLIAMS: So in every case when
15
you have a different tier of designated uses,
16
you would always have a different numeric
17
standard to go with each one?
18
MS. WASIK: Well, there could be other
19
parameters that are affecting the achievement
20
of aquatic life use. But in general --
21
MS. WILLIAMS: I don't think I'm
22
talking about whether the use is attained or
23
not. Just in terms of adopting standards
24
necessary to protect the use. Would you
224
1
always have to have a different standard for
2
each parameter for each use?
3
MS. WASIK: I couldn't say in every
4
case if that would be impossible, but I would
5
think with the CAWS, strictly for the CAWS, I
6
believe they should have different standards
7
than the general use standards considering
8
they're very altered in state.
9
MS. WILLIAMS: For every parameter? I
10
know you're not saying speaking for every
11
waterway, but for every numeric criteria,
12
would you suggest that they would have to
13
be --
14
MS. WASIK: No, not necessarily.
15
HEARING OFFICER TIPSORD: Ms. Wasik,
16
you need to be sure to let her finish her
17
question before you answer.
18
MS. WASIK: Thank you.
19
MS. WILLIAMS: I'm sure I'll interrupt
20
her at some point, so it will be a wash.
21
HEARING OFFICER TIPSORD: And I will
22
point it out, but.
23
MR. ANDES: If I can follow up on
24
that. When we're talking about standards, is
225
1
specifically designed to protect early life
2
stages. I assume you want to make sure there
3
were actually early life stages to protect?
4
MS. WASIK: Right, yes.
5
MS. WILLIAMS: Okay. Why don't we
6
start with the prefiled questions. And just
7
to be clear for the record and folks
8
following along, on Page 34, the questions
9
for Miss Wasik begin first with the set of
10
questions on a different piece of her
11
testimony. So I'll start with the questions
12
that say sediment and macroinvertebrate
13
testimony.
14
Question 1: On Page 1 you state
15
that, quote, "Twenty-eight of the stations
16
are in the CAWS, whereas the other stations
17
are located in the general use shallow draft
18
waterways," unquote.
19
Based on Attachments 1 and 2,
20
there appear to be only 26 stations within
21
the CAWS reaches that are part of the
22
rulemaking. Can you -- The question asks
23
could you identify which 28 stations are in
24
the CAWS. I think maybe if you could help us
226
1
identify which two --
2
MS. WASIK: Right. There are 26
3
stations that we monitor that are in the
4
CAWS. I had included Ashland on the Little
5
Calumet River South which is not part of the
6
rulemaking, and I think I had included Wolf
7
Lake which actually is not part of the CAWS
8
as defined by IEPA.
9
MS. WILLIAMS: When you say I've
10
included them, can you explain where you've
11
included them?
12
MS. WASIK: Just in that count of the
13
26. I don't think I listed them out in my
14
testimony, although I can, if you'd like me
15
to.
16
MS. WILLIAMS: No, no, no.
17
MS. WASIK: They are in, as you said,
18
in the map attachment.
19
MS. WILLIAMS: Okay. So they're on
20
the maps. But did you include the data in
21
the reports?
22
MS. WASIK: Yes. The Attachments 1
23
and 2 are reports for all of our ambient
24
stations, so they actually include all 59 of
227
1
our ambient stations; 26 of which are in the
2
CAWS.
3
MS. WILLIAMS: And then Attachment 3
4
is a map that lists various stations, I
5
think.
6
MS. WASIK: Yes. That's the
7
monitoring map.
8
MS. WILLIAMS: And that's where
9
there's 28 identified but only 26 are
10
technically in the CAWS; is that correct?
11
And if I'm not correct, do not hesitate to
12
tell me no.
13
MS. WASIK: Actually, that map, I'm
14
trying to think, might include all of our
15
ambient stations. So you'd have to go
16
through yourself and determine which ones
17
were at the waterways that are part of the
18
rule-making. But in the second part of your
19
first question I can clarify which other
20
parts of our -- of the waterways aren't
21
included.
22
MS. WILLIAMS: I guess could you just
23
tell me from this map what numbers represent
24
this Wolf Lake and the Little Calumet South.
228
1
MR. ANDES: Are you talking about
2
Figure 1?
3
MS. WASIK: It's Attachment 3. I'm
4
just wondering are there -- Does that have
5
the general use waterways on it as well?
6
MR. ESSIG: Yes, it does.
7
MS. WASIK: Okay. So I can read
8
through here and pick out the ones that are
9
in the CAWS.
10
MS. WILLIAMS: No, no, no. I would
11
just like to know, to be sure that I can
12
identify, because I'm assuming these two are
13
close, right, Wolf Lake?
14
MS. WASIK: Okay. Wolf Lake would be
15
No. 50 and then the Little Calumet at Ashland
16
would be 57. So that's in the more shallow
17
portion of the Little Calumet. That's not
18
part of this rulemaking.
19
MS. WILLIAMS: Thank you. So I'm
20
assuming then the answer to -- I think you've
21
sort of already answered to Question No. 2,
22
but are there other waterways in the
23
Districts's ambient water quality monitoring
24
network that are not part of this rulemaking?
229
1
MS. WASIK: Yes. There are -- the
2
shallow portion of the north branch Chicago
3
River System including the Skokie River, the
4
middle and west forks of the north branch
5
Chicago River and also the shallow portion of
6
the north branch Chicago River upstream of
7
the confluence with the North Shore Channel.
8
Also in the Calumet River system, Thorn reek,
9
and the southern tributary of the Little
10
Calumet River were not included in the
11
rulemaking.
12
MS. WILLIAMS: Question 3: During
13
biological collections, physical habitat is
14
assessed at -- I'm sorry. This is a quote
15
from Page 2 of your testimony. "Physical
16
habitat is assessed at four locations at each
17
sampling station: At the beginning and end
18
of the sampling reach, at the side and center
19
of the waterway," unquote.
20
How long are the sampling
21
reaches?
22
MS. WASIK: We have 400 meter sampling
23
reaches.
24
MS. WILLIAMS: And which side of the
230
1
waterway is evaluated?
2
MS. WASIK: The side of the waterway
3
that's evaluated is whichever side the
4
Hester-Dendy sampler is located. This is --
5
The side on which the Hester-Dendy is
6
installed is based on basically where a cable
7
can be easily fastened to a tree or some
8
other fixed object on the shore and where
9
there's least likely a chance of vandalism.
10
MS. WILLIAMS: Why don't you try to
11
reach both sides of the reach?
12
MS. WASIK: We evaluate the ponars and
13
the Hester Dendys from one side, because it's
14
an acceptable procedure to get samples from
15
the same place. And we don't need both
16
sides, because the side ponar and
17
Hester-Dendy are representing a lower flow
18
area as opposed to the center which would be
19
a high flow area. And we expect both sides
20
in the lower flow areas to be similar. U.S.
21
EPA 2006, the document that I referred to in
22
my testimony, it's called Concepts and
23
Approaches For the Bioassessment of
24
Nonwadable Streams and Rivers. That document
231
1
says that Hester-Dendy colonization can
2
differ based on whether it's in a high or low
3
flow area of the waterway. So that is why we
4
look at one Hester-Dendy in each.
5
HEARING OFFICER TIPSORD: May I ask a
6
follow-up? You said it was an approved
7
method for placing them on the side. Is that
8
approved by U.S. EPA or approved scientific
9
standard?
10
MS. WASIK: Well, in general when
11
you're -- for monitoring you want to collect
12
your samples from I think it's as proximate a
13
location as possible. And I believe this is
14
in the 2006 document that I mentioned.
15
MS. WILLIAMS: Do you know whether
16
this U.S. EPA 2006 is a guidance document or
17
an approved method as --
18
MS. WASIK: I guess not technically a
19
guidance document. It's called Concepts and
20
Approaches. It's an EPA report, so I suppose
21
it's not necessarily called an approved
22
method.
23
MR. ANDES: We can provide a copy or
24
at least a link.
232
1
HEARING OFFICER TIPSORD: Thank you
2
very much.
3
MS. WILLIAMS: And do you consider
4
four locations on a site to be representative
5
of the sampling range?
6
MS. WASIK: Not necessarily, but in
7
many of the channelized waterways of the CAWS
8
I don't think that habitat varies too much
9
necessarily in a 400 meter stretch, as
10
Dr. Mackey has previously testified.
11
However, I want to point out that we did
12
evaluate habitat at two locations at each of
13
our 26 ambient locations in the CAWS, so that
14
would be a total of 52 locations. So that is
15
still quite a bit more than the 23 locations
16
that were evaluated by Ed Rankin in the
17
Attachment R because there are -- for the
18
entire 78 miles of the CAWS this is one of
19
the main reasons that we initiated a habitat
20
RFP for the CAWS was because we wanted to get
21
a more complete picture of the habitat at
22
smaller increments.
23
MS. WILLIAMS: When did you decide
24
this would be necessary?
233
1
MS. WASIK: There were inhouse
2
discussions regarding habitat RFP after the
3
UAA report came out and after the initial
4
IEPA draft proposal came out in January of
5
2007, is it? So we had been talking about it
6
early 2007. And, in fact, it does take a
7
while to initiate an RFP, but I think even
8
late in 2006 there were discussions about
9
that.
10
MS. WILLIAMS: Do you recall if this
11
was ever raised by the District either in any
12
of the stakeholder meetings or in comments on
13
the draft proposal that more detailed
14
habitat --
15
MS. WASIK: I wasn't at any of the
16
earlier stakeholder meetings, so I'm sorry I
17
don't know.
18
MS. WILLIAMS: Do you know who would
19
know?
20
MS. WASIK: I think Mr. Lanyon
21
attended those meetings, but I think that
22
they're on record, the minutes from the
23
meetings.
24
HEARING OFFICER TIPSORD: Excuse me,
234
1
Miss Williams if I may. Just to back up for
2
a little bit for the lay people out there.
3
RFP is request for proposal?
4
MS. WASIK: Yes.
5
MS. WILLIAMS: Mr. Lanyon, I believe,
6
is not being presented by the District as an
7
aquatic life use witness.
8
MS. WASIK: Right.
9
MS. WILLIAMS: So do you know if there
10
are any other aquatic life use witnesses for
11
the District that I could ask that question
12
of?
13
MS. WASIK: That could say whether or
14
not it was brought up at the stakeholder
15
meetings?
16
MS. WILLIAMS: Correct.
17
MR. ANDES: I would say probably
18
Dr. Grenada who's going to summarize the
19
aquatic testimony for the District.
20
MS. WILLIAMS: That sounds good.
21
MS. WASIK: I don't --
22
MR. ANDES: I'm not sure why it's
23
relevant, but.
24
MS. WASIK: I'm not sure how many
235
1
stakeholder meetings were actually, if any,
2
actually took place between January at the
3
time the proposed draft came out and October
4
when the final draft came out.
5
MS. WILLIAMS: I don't think that's
6
what I'm asking. I'm just trying to
7
understand, and I think it's better that I
8
ask Mr. Grenada why the first we're hearing
9
of a need for more habitat studies or any
10
habitat index, in fact, actually, is with
11
this testimony submitted by the District this
12
summer.
13
MR. ANDES: Doesn't the Agency know
14
what was said at its own meetings?
15
MS. WILLIAMS: I'm not sure if you
16
heard what I just asked then. I just -- Did
17
you hear what I just clarified for her?
18
MR. ANDES: I'm sorry. I didn't hear
19
the whole thing. Can you repeat what was
20
said?
21
HEARING OFFICER TIPSORD: I think the
22
issue is there is some question as to whether
23
or not this was raised. The Agency doesn't
24
believe it was necessarily raised.
236
1
MS. WASIK: I would only say that the
2
discussions to have more habitat were raised
3
after this January 2007 proposal, and I don't
4
know that there were opportunities in terms
5
of stakeholder meetings after that point to
6
raise it.
7
MS. WILLIAMS: Okay. So you're saying
8
now that it -- because I thought what you
9
said was that the internal meetings began
10
after the draft UAA came out. So I was
11
thinking you were referring to Attachment B.
12
So there was quite a bit of time between
13
Attachment B being developed and the January
14
2007 --
15
MS. WASIK: I can't remember the exact
16
date in which the draft UAA came out.
17
MS. WILLIAMS: Okay. We can move on
18
to Question --
19
MR. ANDES: When did that come out?
20
I'm sorry. When did the UAA report come out?
21
MS. WILLIAMS: I can refer to the time
22
line if you want me to. I mean I'm just
23
going to ask Dr. Grenado.
24
MR. ANDES: Fine.
237
1
MS. WILLIAMS: That's fine with me.
2
Question 4: You testify on Page 2
3
that, quote, "A sediment evaluation is one
4
component of the habitat assessment process,"
5
unquote.
6
Describe the other habitat
7
attributes that are assessed and how this
8
assessment is conducted.
9
MS. WASIK: Again, this is described
10
in my Attachments 1 and 2 in the methodology
11
section. A team biologist also assesses the
12
following habitat features on a field data
13
sheet which is Figure 2 in those attachments.
14
We assess weather, channel development, water
15
depth, channel width, water level, manmade
16
structures, channelization, bank erosion,
17
presence of floatable materials, aquatic
18
vegetation, instream cover for fish, canopy
19
cover, immediate shore cover, riparian land
20
use, sediment composition, sediment color,
21
sediment odor, oil present in sediment,
22
embeddedness in the sediment, sinuosity, and
23
the depth of fines.
24
MS. WILLIAMS: Question five: On Page
238
1
2 you mention that --
2
HEARING OFFICER TIPSORD: Excuse me.
3
I'm sorry, Miss Williams. Before you go
4
ahead, fines is a term that I know is defined
5
and was defined in Dr. Mackey's written
6
testimony, but I think it's the first time
7
it's been used in the testimony today. So if
8
we could -- could you explain what fines is,
9
since it's not the normal --
10
MS. WASIK: Sure. That would be the
11
depth of the fine sediment that's deposited
12
on the river bed. We measure it with a one
13
inch diameter rod, telescoping rod, to
14
basically push it into the sediment and see
15
how far it goes before you get to the --
16
HEARING OFFICER TIPSORD: Like I said,
17
I know it was defined in the written
18
testimony, but it is a word that will jump
19
out when we read the transcript. Sorry,
20
Miss Williams. Please go ahead.
21
MS. WILLIAMS: So the list of habitat
22
attributes that are assessed, are they
23
assessed at four separate locations at the
24
site?
239
1
MS. WASIK: Right. Yes.
2
MS. WILLIAMS: And just to finish the
3
thought, what are those?
4
MS. WASIK: Four locations?
5
MS. WILLIAMS: Yes.
6
MS. WASIK: At the beginning of the
7
sampling reach in the center and the side,
8
and at the end of the sampling reach at the
9
center and the side.
10
MR. ANDES: So two at the beginning
11
and two at the end.
12
MS. WILLIAMS: Thank you. On Page 2
13
you mention that fine grade sediment
14
increases the probability of contaminants
15
absorption and desorption, thus silt and sand
16
generally support tolerant organisms.
17
Other than the possibility of
18
contamination, are there other reasons why
19
tolerant organisms predominate in silt and
20
sand?
21
MS. WASIK: Yes. Homogenous sediments
22
like the ones present in the CAWS are
23
correlated with lower species richness,
24
irrespective of contamination. Fine
240
1
sediments are not preferred habitat, nor do
2
they support several varieties of benthic
3
invertebrates because their food requirements
4
are not met. Abundant availability of
5
bacteria in the sediment provides food for
6
the more tolerant organisms that are deposit
7
feeders like the oligochaete worms. There's
8
little space for dissolved oxygen in the
9
interstitial spaces of silt. So both the
10
physical characteristics and the
11
contamination of sediment are separate
12
stressors in the CAWS.
13
MS. WILLIAMS: So you would agree that
14
tolerant organisms tend to predominate in
15
uncontaminated silt and sand?
16
MS. WASIK: Yes, in general.
17
MS. WILLIAMS: Question 6: On Page 3
18
of your sediment testimony it states that,
19
quote, "In the absence of sediment toxicity
20
data, the CAWS UAA report employed sediment
21
screening levels from McDonald et al., 2000,
22
in order to identify potential problem areas
23
and constituents."
24
Subpart A, do you agree that
241
1
another sediment quality guideline developed
2
by Morgan was also used?
3
MS. WASIK: Yes. Morgan's guideline
4
was also referenced in in the UAA report.
5
Long and Morgan was based on literature in
6
the marine environment, I believe, from
7
sampling stations from NOAA, the National
8
Oceanic and Atmospheric Administration.
9
McDonald was a more recent paper. I think
10
it's more widely recognized especially for
11
fresh water.
12
MS. WILLIAMS: Subpart B, it says was
13
the use of these guidelines agreed to by the
14
members of the CAWS UAA work group?
15
MS. WASIK: Again, I'll have to say I
16
wasn't a member of the work group, so I'm not
17
sure.
18
MS. WILLIAMS: Do you know if other
19
possible impacts to aquatic life, such as
20
water quality and habitat, were considered in
21
the development of the threshold effects
22
concentrations or TEC and probable effects
23
concentrations or PEC or was it assumed that
24
degraded biological conditions for CAWS
242
1
exclusively by sediment contamination?
2
MS. WASIK: My understanding of the
3
McDonald publication is that TECs and PECs
4
were based on the consensus of published
5
numerical SQGs or sediment quality
6
guidelines. These sediment quality
7
guidelines appeared to be limited to
8
approaches described by sediment chemical
9
contamination. I think this is why the
10
author suggests that these screening tools
11
should be used in conjunction with other
12
tools and tests.
13
MS. WILLIAMS: Subpart D: McDonald,
14
et al., 2000 defined TEC as threshold effects
15
concentration below which adverse effects are
16
not expected to occur. And PEC as probable
17
effects concentration above which adverse
18
effects are expected to occur. Would you
19
agree that potential biological effects in
20
sediments with contaminant concentrations
21
between the TEC and PEC are uncertain.
22
MR. ANDES: Before we answer that, I
23
want to introduce a copy of that particular
24
document, the McDonald paper.
243
1
HEARING OFFICER TIPSORD: If there is
2
no objection, we'll mark Development and
3
Evaluation and Consensus-Based Sediment
4
Quality Guidelines For Fresh Water Ecosystems
5
by D.D. McDonald, C.G. Ingersoll, T.A.
6
Berger, authors, published January 2000 as
7
Exhibit No. 188 if there is no objection.
8
Seeing none, it's Exhibit 188.
9
MS. WASIK: Well, I would say it that
10
these TEC and PEC thresholds deal in
11
probabilities. So if the concentration of a
12
contaminants is greater than the PEC then
13
sediment is presumably or probably toxic;
14
whereas concentration, if it's above the TEC,
15
they're possibly toxic. This is how the IEPA
16
contractor interpreted the McDonald paper on
17
Page 4-11 of the UAA report, Attachment B.
18
And Figure 4-4 of that report indicates that
19
if the concentration of a contaminants is
20
above the TEC then it is possibly toxic. And
21
if it is above the PEC it's presumed toxic.
22
And my testimony I just used the exact
23
wording that I found in this UAA report in
24
order to be consistent. And to read from
244
1
Exhibit 188, the McDonald paper, they
2
actually say that -- This is on Page 21 in
3
the second column, the PECs were intended to
4
identify contaminants concentrations above
5
which harmful effects on sediment dwelling
6
organisms were expected to occur frequently.
7
So the word frequently there is important
8
because if chemical contaminants
9
concentration is less than the PEC, there are
10
harmful effects. They just aren't expected
11
frequently.
12
MR. ANDES: And the word frequent was
13
not in the question as prefiled by the
14
Agency, am I right?
15
MS. WASIK: Yes.
16
MS. WILLIAMS: Can you explain what's
17
meant by possibly toxic?
18
MS. WASIK: I think, again, dealing
19
with probabilities, if possibly toxic, there,
20
again, are some harmful effects expected, but
21
it's not expected to occur frequently. So
22
it's less frequent than the -- above the PECs
23
where it's considered presumed toxic, but it
24
still occurs. And I think the quote kind of
245
1
sums that up. It's -- They're expected to
2
occur, but possibly not frequently. And,
3
again, the reason I use the words possibly
4
and presumed toxic are because they were in
5
the UAA report. So I was just trying to be
6
consistent with the IEPA contractor.
7
MS. WILLIAMS: Can you send us back to
8
the page you're reading from again?
9
MS. WASIK: Sure. In the UAA report
10
it was --
11
MS. WILLIAMS: I'm sorry. In the
12
McDonald.
13
MS. WASIK: Yeah. That's Page 21.
14
There's pages on the top. That's Page 21.
15
There's also pages on the bottom. That would
16
be Page 9800 on the bottom.
17
MS. WILLIAMS: Question 7: You
18
testify on Page 4 of your prefiled testimony
19
that, quote, "Hester-Dendy samples tend to
20
indicate benthic invertebrate taxa that might
21
be present at a given location if there were
22
habitat available."
23
Subpart A: Do Hester-Dendy
24
artificial substrate samples indicate taxa
246
1
that are present with other collection
2
techniques such as petite ponar grabs are
3
inadequate to sample substrates such as
4
coarse gravel, cobble, bolder, or woody
5
debris at a given location?
6
MS. WASIK: No. They indicate
7
organisms present in the drift that may not
8
be able to survive in the sediments due to
9
the wide spread homogenous silt sediments or
10
contamination possibly.
11
MS. WILLIAMS: Do you agree that
12
petite ponar grabs are more selective of
13
finer grain substrate such as silt, sand, and
14
fine gravel because larger material can
15
interfere with complete jaw closure of the
16
ponar?
17
MS. WASIK: Yes. And the reason we
18
use ponar samples is because I think they're
19
especially appropriate for a system like the
20
CAWS, because cobble and woody debris are
21
more rare than in a natural system.
22
MS. WILLIAMS: I mean I'm trying to
23
understand, I guess, if the CAWS was a more
24
natural system what would you do differently
247
1
than you did here?
2
MS. WASIK: Well, I think that our
3
sampling methods for benthic invertebrates
4
being ponars and Hester Dendys are perfectly
5
appropriate given that 2006 document because
6
they are deep draft, you couldn't really use
7
a kick net or anything like that that you
8
might use in a wadable stream. So I think
9
they are the most appropriate sampling
10
techniques and possibly the only appropriate
11
sampling techniques for the system.
12
MS. WILLIAMS: But those methods would
13
also be appropriate in a general use water as
14
well, right? I mean do you -- I guess maybe
15
I should ask it this way. Do you vary your
16
sampling method for the areas in the network
17
that are not part of this rulemaking?
18
MS. WASIK: We actually do not, no.
19
We also do ponars -- There's a lot of
20
siltation in those waterways as well, but we
21
do ponars and Hester-Dendys in those as well.
22
MS. DEXTER: Is there a limit on the
23
ponar's ability to catch the finest sediments
24
that sit on the top of the -- that would be
248
1
on the top?
2
MS. WASIK: I suppose some of the fine
3
materials may fall out of the jaw of the
4
ponar grab sample. But in general I think it
5
would be the best way to collect those kind
6
of sediments.
7
MS. DEXTER: Thanks.
8
MS. WILLIAMS: Is it your testimony
9
that Hester-Dendy sampling in the CAWS
10
attract macroinvertebrates from outside the
11
CAWS?
12
MS. WASIK: No, not at all.
13
Hester-Dendys, they provide an artificial
14
habitat and that they represent drift
15
organisms.
16
MS. WILLIAMS: Can you discuss for us
17
nonbug people here, can you just explain
18
drift organisms. I don't know that that's a
19
term that's come up.
20
MS. WASIK: So organisms that are
21
drifting in the water column could colonize
22
an artificial substrate, but would be
23
possibly unable to live in the fine sediments
24
at the bottom which is shown in our
249
1
comparison of ponar samples with the
2
Hester-Dendy samples.
3
MS. WILLIAMS: Do you believe the
4
Hester-Dendy substrates reflect the organisms
5
that would be found on gravel, cobble, or
6
woody debris substrates?
7
MS. WASIK: They reflect organisms
8
that might be able to survive in these
9
waterways were there appropriate habitat for
10
them and heterogeneous substrates.
11
MS. WILLIAMS: But they are surviving
12
in these waterways, aren't they?
13
MS. WASIK: Right. They would be able
14
to survive on the actual river bottom without
15
an artificial substrate if there were habitat
16
present for them to colonize in.
17
MR. ANDES: We can, to help -- I'm
18
sorry. To help people understand what we're
19
talking about, we have a picture of a
20
Hester-Dendy sampler which we thought might
21
be useful.
22
MS. WILLIAMS: I think he's padding
23
the exhibit numbers.
24
MR. ANDES: This is from the 2006
250
1
document EPA document, Concepts and
2
Approaches For the Bioassessment of
3
Nonwadable Streams and Rivers.
4
HEARING OFFICER TIPSORD: Oh, and it's
5
color.
6
MR. ANDES: That was my home printer.
7
HEARING OFFICER TIPSORD: If there's
8
no objection, we'll mark this picture as
9
Exhibit 189.
10
Seeing none, it's Exhibit 189.
11
MS. WASIK: So if you do look at that
12
U.S. EPA document on Page 6-6 of the benthic
13
invertebrate chapter, one of the advantages
14
mentioned for these Hester-Dendy or
15
artificial substrate samplers is that it can
16
be especially effective in reflecting water
17
quality as a result of the standardized
18
habitat they provide. So you're basically
19
standardizing the habitat and putting
20
something in there they can colonize when
21
there may not be actually any kind of habitat
22
that they can colonize in the system.
23
MS. WILLIAMS: Does it say that part
24
in there where it may not be --
251
1
MS. WASIK: I'm sorry. I ended the
2
quote after the standardized habitat they
3
provide.
4
MS. WILLIAMS: Okay. Do you believe
5
the sample of macroinvertebrates collected
6
only from fine bottom sediment provides
7
useful indication of overall biological
8
condition in the stream?
9
MS. WASIK: A sample from fine bottom
10
sediments is useful in combination with other
11
information and other collection techniques
12
which is why we also collect the Hester-Dendy
13
samples. Samples from the fine bottom
14
sediments, which are pretty ubiquitous in the
15
CAWS, are a good indicator sediment quality.
16
MS. WILLIAMS: Do you know of any
17
macroinvertebrate indices that focus solely
18
on samples from fine bottom sediments in
19
streams?
20
MS. WASIK: No. I don't know of an
21
index that focusses only on the fine bottom
22
sediments, but I also don't know of a
23
macroinvertebrate index that's created
24
specifically for a system like the CAWS.
252
1
MS. WILLIAMS: So are you saying if
2
there was an MBI specifically for the CAWS
3
that it would focus on only fine bottom
4
sediments?
5
MS. WASIK: Not necessarily. But I'm
6
just saying that -- I don't know of an index
7
just for fine bottom sediments, and I don't
8
know of an index for waterways such as CAWS.
9
MS. WILLIAMS: I mean I think this
10
question is getting at do you think it would
11
be appropriate in any water body, natural or
12
the CAWS, to only look at macroinvertebrate
13
samples for fine bottom sediments?
14
MS. WASIK: Well, we don't do that,
15
but --
16
MS. WILLIAMS: Is there a reason that
17
we don't do that?
18
MS. WASIK: We don't only look at fine
19
bottom sediments. We also look at
20
Hester-Dendys. So I don't know that it's
21
relevant to our sampling program, but I think
22
it's part of the picture that you would look
23
at, and it is certainly the adequate sampling
24
technique for the CAWS because silts is
253
1
mostly what we see there.
2
MS. WILLIAMS: We would look at
3
both -- we would want to look at both
4
Hester-Dendys and the bottom sediments in any
5
system, correct?
6
MR. ANDES: You mean Hester-Dendy and
7
the ponar samples?
8
MS. WILLIAMS: Correct.
9
MS. WASIK: Yes.
10
MS. WILLIAMS: Okay. Question 8: You
11
indicate on Page 4 that, "Sand and silt
12
dominated sediment throughout the North Shore
13
Channel and the depth of fines measured
14
greater than four feet at two stations."
15
Can you identify these two
16
stations?
17
MS. WASIK: The two stations that had
18
a depth of fines greater than four feet were
19
Oakton at the end center location and Touhy
20
at the end center and beginning center
21
locations.
22
MS. WILLIAMS: Are these stations
23
located in the upper or lower North Shore
24
Channel?
254
1
MS. WASIK: Where do you draw the line
2
between the upper and lower?
3
MS. WILLIAMS: The North Side Plant.
4
MS. WASIK: Oakton is above north side
5
Water Reclamation Plant and Touhy is below
6
it.
7
MS. WILLIAMS: Question 9: When you
8
indicate on Page 4 that, quote, "Toxicity
9
results show significantly lethality from
10
exposure to North Shore Channel sediments
11
from one station," unquote.
12
Are you referring to Foster
13
Avenue?
14
MS. WASIK: Yes.
15
MS. WILLIAMS: Subpart A: Is it true
16
that there were two samples from this site,
17
and only one sample showed a significant
18
difference in persistent survival compared to
19
only one of the two control samples?
20
MS. WASIK: Yes. Again, we collect a
21
side and a center sample from each station.
22
Only the side sediment sample showed
23
significant toxicity; flow was highest in the
24
center of the waterways and lower along the
255
1
sides often causing the fine sediment
2
particles to deposit on the sides. So
3
there's -- It stands to reason that the
4
toxicity would be shown on the side sample.
5
MS. WILLIAMS: Is it also true that
6
the other sample from this site had a
7
survival of 94 percent?
8
MS. WASIK: Yes. I was only
9
highlighting the areas of concern in my
10
testimony. But, actually, if I could go back
11
to your first question, I also notice that
12
you asked -- compared to only one of the two
13
control samples. And you get into this in
14
Question 26. But I just wanted to clarify
15
now that there's technically only one
16
official control, and that one is called the
17
West Bear Skin Lake. The other control is an
18
inhouse control run by our contractor. But I
19
can explain that later when you get to --
20
MS. WILLIAMS: I think if it makes
21
more sense now, that's fine. I think
22
Question 26 asks why was the number of
23
control samples for toxicity test reduced
24
from two controls to only one?
256
1
MS. WASIK: During 2002, our
2
contractor happened to be running the, what
3
was called the NC-Sand control which is acid
4
washed sand, which they run every month for
5
QC at their lab alongside with the tests that
6
they're running. Technically the West Bear
7
Skin, also referred to as WBS in some of our
8
toxicity reports, that control is the one
9
that was set up specifically for our
10
experiment and that is the one that should be
11
used in -- to determine significant
12
differences. The contractor said that the
13
negative control should be a field sample
14
like the West Bear Skin as opposed to acid
15
wash sand that you have to buy from a vendor.
16
MS. WILLIAMS: I don't think I
17
understood that. I'm sorry. Could you
18
simplify it for me a little bit?
19
MS. WASIK: Basically they were only
20
ever supposed to or required by the protocol
21
to run one sample which is called the West
22
Bear Skin sample. That's from a lake in
23
Minnesota. So that is the control that they
24
are comfortable comparing with our samples.
257
1
They also had an inhouse for their own QC for
2
all of their samples because they're running
3
other samples from other -- with other
4
contracts. So they run this NC-Sand control
5
which is an acid washed sand, and that wasn't
6
meant to be specifically compared to our
7
samples.
8
MS. WILLIAMS: Why? Maybe that's what
9
I'm missing. Why?
10
MS. WASIK: Because it's not a field
11
sample. They like to use a control that's a
12
field sample like the one from the lake in
13
Minnesota and in all of the future sediment
14
tox reports, that's all that there is because
15
they're just comparing --
16
MR. ANDES: So just happened in 2002,
17
they happened to run that acid wash sand --
18
MS. WASIK: With our samples, yeah.
19
MR. ANDES: And that didn't happen
20
after that?
21
MS. WASIK: Right.
22
MR. ANDES: Okay.
23
MS. WILLIAMS: I have to go back. I
24
think we left off on B.
258
1
MS. WASIK: I believe 9B I answered
2
yes. I was just highlighting areas of
3
concern in my testimony.
4
MS. WILLIAMS: Is it yes to the second
5
part as well? Did percent survival at the
6
other sites on the North Shore Channel range
7
from 79 percent to 96 percent?
8
MS. WASIK: Yes.
9
MS. WILLIAMS: How many different
10
types, and by types I mean taxa, of test
11
organisms were used in these toxicity tests?
12
MS. WASIK: The toxicity test we use
13
is a ten-day chironomus tentans toxicity test
14
with both sediment. So that's just one kind
15
of organism. And this is one of the tests
16
recommended by U.S. EPA in methods for
17
measuring the toxicity and bioaccumulation of
18
sediment associated contaminants with fresh
19
water invertebrates. One reason this
20
organism was chosen for our toxicity test is
21
because it's useful in assessing chemical
22
toxicity in the CAWS is because according to
23
this U.S. EPA publication, quote, larva of
24
c. tentans appeared to be tolerant of a wide
259
1
range of particle-sized conditions in
2
substrates. So this essay can better isolate
3
the chemical effects from grain size -- from
4
the grain size effects.
5
MS. WILLIAMS: Do you have an EPA
6
number for that publication you've referred
7
to?
8
MS. WASIK: Let me see if it's in
9
there. In my testimony it's referenced. Let
10
me see if I have it there. Okay. That is
11
research and development report
12
No. EPA-600-R-99-064.
13
MS. DEXTER: Could I ask a question to
14
clarify. You said that the test was done
15
with one organism. Do you mean one species?
16
MS. WASIK: Yes. One kind of
17
organism.
18
MS. DEXTER: Not just one?
19
MS. WASIK: Right.
20
MS. WILLIAMS: Are there -- Question D
21
asks, are there sources of contaminants
22
located upstream of the Foster Avenue Station
23
such as CSOs or points or dischargers?
24
MS. WASIK: Yes.
260
1
MS. WILLIAMS: Ten: When you state on
2
Page 4 that, "Concentrations of trace metals
3
in North Shore Channel sediments were
4
generally below the PEC, but most samples
5
exhibited cadmium, copper, lead, nickel, and
6
zinc concentrations above the TEC," end
7
quote.
8
Are these results comparable with
9
the North Shore Channel as presented in the
10
CAWS UAA Attachment B?
11
MS. WASIK: Yes. The results for the
12
North Shore Channel are consistent with what
13
was reported in Attachment B. However, I'd
14
note that their conclusions are based on a
15
different set of -- or a different data set
16
at different locations from, I believe they
17
maybe used one year of our data, but then it
18
was also based on U.S. EPA data.
19
MR. ANDES: But the overall
20
conclusions --
21
MS. WASIK: Are the same.
22
MS. WILLIAMS: Do you know which year
23
of your data they used?
24
MS. WASIK: 2002.
261
1
MS. WILLIAMS: And do you know why
2
they limited it to 2002 data?
3
MS. WASIK: I think that's when they
4
started preparing the report possibly, or I'm
5
not really sure.
6
MS. WILLIAMS: And the data -- In
7
Attachments 1 and 2, what are the years'
8
worth of data we're looking at?
9
MS. WASIK: Attachment 1 is 2001
10
through 2004 and Attachment 2 is 2005.
11
MS. WILLIAMS: Now, what was the
12
purpose of these two reports? Because I
13
believe their data in 2008, correct?
14
MS. WASIK: Right. The purpose of the
15
reports is to report our biological findings
16
and of the ambient water quality monitoring
17
program. And as to why they're dated 2008,
18
is that what you were --
19
MS. WILLIAMS: Right. I'm just sort
20
of trying to understand the schedule of
21
sampling compared to when the reports come
22
out.
23
MS. WASIK: We're basically running
24
behind. That's why they came out in 2008,
262
1
but normally we would try to get them out as
2
quickly as we could. But they, the
3
contractor, the IEPA contractor, contacted us
4
directly and got sediment data, I believe. I
5
don't know that they got it from the report.
6
MS. WILLIAMS: Okay. Question 11:
7
You also state on Page 4 that, quote,
8
"Oligochaeta was the dominant taxa collected
9
from the North Shore Channel," unquote.
10
Was this true for all sampling
11
sites for both petite ponar and Hester-Dendy
12
substrate samples?
13
DR. MACKEY: If you consider both
14
sampling methods together, the oligochaete
15
worms were the dominant benthic swana (ph.)
16
In the North Shore Channel. Oligochaete
17
worms dominated ponar samples but some
18
Hester-Dendy samples were not dominated by
19
oligochaete worms.
20
MS. WILLIAMS: What about Foster
21
Avenue?
22
MS. WASIK: Foster had a higher
23
percentage of turbellaria, which is a
24
free-living flat form, 49 percent, than
263
1
oligochaetes which were 32 percent in the
2
Hester-Dendy sample. 2005 Foster ponars
3
contained 98 percent oligochaete.
4
HEARING OFFICER TIPSORD: Could you
5
spell both of those.
6
MS. WASIK: Oligochaete is are spelled
7
o-l-i-g-o-c-h-a-e-t-e, and the turbellaria is
8
t-u-r-b-e-l-l-a-r-i-a.
9
HEARING OFFICER TIPSORD: Thank you.
10
MS. WILLIAMS: Question 12: Along the
11
North Branch Chicago River -- I'm sorry.
12
This is a quote from Page 4 of your
13
testimony. "Along the North Branch Chicago
14
River, sediments were less dominated by fine
15
sediments at the furthest upstream location,"
16
end quote.
17
Is this station located within
18
the CAWS just downstream of the confluence
19
with the North Shore Channel?
20
MS. WASIK: The furthest upstream
21
location along the deep portion of the north
22
branch would be Wilson, and it's .6 miles
23
downstream of the confluence with the North
24
Shore Channel.
264
1
MS. WILLIAMS: What station are you
2
referring to on Page 4 when you testify that,
3
quote, "Depth defined at this station was as
4
deep as greater than five feet"?
5
MS. WASIK: Depth of fines were five
6
feet or greater at our Grand Avenue Station.
7
MS. WILLIAMS: According to your
8
testimony on Page 5, quote, "Five of six
9
sediment samples from North Branch Chicago
10
River during 2005 had PAH concentrations
11
presumed toxic. Generally trace metal
12
concentrations in sediment samples were
13
either above the PEC or TEC screening levels
14
in all samples," unquote.
15
First, can you clarify for the
16
record what PAH stands for?
17
MS. WASIK: Poly aromatic hydrocarbon.
18
MS. WILLIAMS: How do these findings
19
compare to those reported in the CAWS UAA
20
Attachment B to the statement of reasons?
21
MS. WASIK: These results are
22
consistent with the UAA report Page 4-53,
23
although I'm -- It's not apparent to me from
24
the statement of reasons how exactly they
265
1
were used, but it is consistent with what was
2
reported on the UAA report.
3
MS. WILLIAMS: You state on Page 5
4
that, quote, "Toxicity results show
5
significantly lethality from exposure to
6
Diversey Parkway and Grand Avenue on the
7
North Branch Chicago River.
8
A: Is it true there were two
9
samples from both of these stations and that
10
only one sample at each site showed a
11
significant difference at percent survival
12
compared to the control?
13
MS. WASIK: If you're comparing it to
14
the West Bear Skin control, since the
15
contractor did tell us to ignore the acid
16
wash sand control, the side samples from
17
Grand and Diversey exhibited 13 and 49
18
percent survival respectively. And the
19
center samples from Grand and Diversey
20
exhibited 93 and 86 percent survival which is
21
compared to 96 percent in the controls. So
22
that was not significant. And, again, that's
23
somewhat expected because these are in the
24
side channel area. That's where we saw the
266
1
toxicity from the increase sediment
2
deposition.
3
MS. WILLIAMS: Did you just say that
4
the contractor advised you not to use the
5
acid wash sand control? Did I call it the
6
right thing, acid wash sand control?
7
MS. WASIK: I actually called the
8
contractor in response to your Question
9
No. 26 because I wasn't clear on why there
10
was the two controls, and that's when he
11
explained to me that we should look at the
12
West Bear Skin control because it was a field
13
sample and that would be the appropriate
14
comparison.
15
MS. WILLIAMS: So he told you that on
16
the phone?
17
MS. WASIK: Yeah, recently.
18
MS. WILLIAMS: Do you have your
19
attachments in front of you?
20
MS. WASIK: Some of them.
21
MS. WILLIAMS: I have one. I believe
22
it's -- Does 16 sound right? Titled --
23
MS. WASIK: 2003 Sediment Toxicity
24
Report.
267
1
MS. WILLIAMS: September 2003 Results
2
of Ten-Day Chironomus Tentans Toxicity Test?
3
MS. WASIK: Actually, I don't have
4
printed out copies of those. I have a
5
summary which is my attachment 14.
6
MS. WILLIAMS: I'm going to show you
7
this document and ask you to identify whether
8
it looks like Attachment 16 to your
9
testimony. Does this look correct?
10
MS. WASIK: Yes.
11
MS. WILLIAMS: Okay. Then I'd like
12
you to read the highlighted portion on
13
Page 9.
14
MS. WASIK: Second control set,
15
negative control sand was employed for the
16
first test set. However, after consulting
17
with personnel at MWRDOGC it was decided one
18
controlled exposure was sufficient for each
19
set of toxicity exposures.
20
So I guess all I can say is
21
that I recently talked to the contractor and
22
he said that they were only using the
23
negative sand control for the purposes of
24
their own internal QC. So I don't know. I'd
268
1
have to ask them about the discrepancy. But
2
in the U.S. EPA methodology reference that I
3
gave you, only one control is required for
4
the chironomus tentans.
5
MS. WILLIAMS: But you don't know for
6
sure whether it could have been someone at
7
the District that advised them not to use the
8
second control in the future?
9
MS. WASIK: In 2002 possibly. It
10
wouldn't have been me.
11
MS. WILLIAMS: Okay.
12
MS. WASIK: But one control is
13
consistent with, like I said, with the EPA.
14
MS. WILLIAMS: And I don't -- I don't
15
think I disagree with that. I'm just
16
questioning if you had two controls and one
17
was ignored, ordinarily that would not be a
18
valid scientific approach, would it?
19
MS. WASIK: To ignore one of the
20
controls? No. I would say none of the
21
survival data resulted in an instance where
22
toxicity -- toxicity was different from one
23
control but not the other. I think there was
24
one instance where the dry weight was
269
1
significantly different from one and not the
2
other, but there was never a conflict with
3
the survival data.
4
MS. WILLIAMS: Is it true that more
5
samples showed significant difference with
6
the West Bear Skin control than with the
7
NC-Sand or the sand control?
8
MS. WASIK: For toxicity or growth?
9
MS. WILLIAMS: I'm sorry. For what?
10
MS. WASIK: For --
11
MS. WILLIAMS: For survival. I'm
12
sorry.
13
MS. WASIK: For survival.
14
Significantly, not that I'm aware of. I
15
thought they were the same.
16
MS. WILLIAMS: So you thought the
17
survival was the same when compared to both
18
controls?
19
MS. WASIK: Yes. If you look at my
20
Attachment 14, it's a summary of the 2002
21
through 2007 sediment toxicity results.
22
MS. WILLIAMS: Okay. Go ahead.
23
MS. WASIK: I believe there was one
24
sample that has the Footnote B significantly
270
1
different from the negative control sand
2
control results. And that only occurred once
3
at Cicero in the Chicago Sanitary and Ship
4
Canal.
5
MS. WILLIAMS: And do you know how
6
significant is defined is in this context?
7
MS. WASIK: Well, it's a statistical
8
significance. So they run a statistical
9
test. I couldn't really describe more than
10
that.
11
MS. WILLIAMS: And then what does
12
Footnote A mean in this table?
13
MS. WASIK: Significantly different
14
from the West Bear Skin Lake control results.
15
MS. WILLIAMS: Well, I mean I can read
16
what it says. What does that mean? I'm
17
sorry. And I don't mean to be difficult. I
18
just don't understand.
19
MS. WASIK: That there's a statistical
20
difference between the tests that they ran,
21
the amount of either survival or growth in
22
the organisms from the West Bear Skin Lake
23
control than there was in the samples that we
24
sent them.
271
1
MS. WILLIAMS: Okay. And did they
2
determine what was the statistical difference
3
or did you determine?
4
MS. WASIK: Yes. They did that and
5
provided it in this report.
6
MS. WILLIAMS: This report -- I mean
7
do you mean this summary?
8
MS. WASIK: Not in this attachment,
9
but in the report that you showed me earlier.
10
HEARING OFFICER TIPSORD: Attachment
11
16.
12
MS. WILLIAMS: And the name of that
13
contractor is --
14
MS. WASIK: It's ASCI Corporation.
15
MS. WILLIAMS: But you developed
16
Attachment 14, this summary table?
17
MS. WASIK: Right. Just taking
18
directly what they had in their report.
19
HEARING OFFICER TIPSORD: Cut and
20
paste, not interpretation of the document?
21
MS. WASIK: Right.
22
MS. WILLIAMS: I think I left off on
23
Subpart B of Question 14. Is it true that
24
the other samples at these sites, referring
272
1
back to Diversey Parkway and Grand Avenue,
2
had survivals of 86 percent and 93 percent
3
with no significant difference when compared
4
to the control?
5
MS. WASIK: Yes.
6
MS. WILLIAMS: And was survival at
7
Wilson Avenue 84 percent and 93 percent with
8
no significant difference from the control?
9
MS. WASIK: Yes.
10
MS. WILLIAMS: Question B: When you
11
state on Page 5 that, quote, "Pollution
12
tolerant aquatic worms were the dominant
13
organisms collected from the deep draft
14
portion of the North Branch Chicago River, do
15
you mean that this was true for all sampling
16
sites, for both petite ponar and Hester-Dendy
17
substrate samples?
18
HEARING OFFICER TIPSORD: This is
19
Question 15.
20
MS. WILLIAMS: Fifteen.
21
MS. WASIK: Yes. Oligochaetes made up
22
84, 79, and 95 percent was 2001 Hester-Dendy
23
samples at Wilson, Diversey, and Grand Avenue
24
respectively. And 33, 29, and 75 percent
273
1
during 2005 samples. Of those six
2
Hester-Dendy samples, there were two in which
3
oligochaetes did not comprise a majority of
4
the sample. In the ponar samples
5
oligochaetes made up 88 to 99 percent of the
6
samples from all three stations in both years
7
in which we had focussed sampling on the
8
north branch system.
9
MS. WILLIAMS: What about the sites at
10
Diversey Parkway and Grand Avenue?
11
MS. WASIK: Yes. That's -- It
12
includes those stations.
13
MS. WILLIAMS: Okay. Question 16,
14
please indicate where in the record the data
15
is located to support the statement that,
16
quote, "Approximately 13 percent of midge
17
specimens collected and examined from Grand
18
Avenue in the North Branch Chicago River
19
during 2002 exhibited head capsule
20
deformities."
21
MS. WASIK: Page 3-44 of Attachment 22
22
entitled A Study of the Benthic
23
Macroinvertebrate Community in Selected
24
Chicago Metropolitan Area Waterways during
274
1
2001 and 2002 states, quote, "Chironomid head
2
capsule deformities were observed only in the
3
Hester-Dendy samples at Grand Avenue or
4
station 46, parentheses Table 3-41. Of the
5
117 midge specimens examined from Grand, 15
6
were 12.8 percent exhibited deformities."
7
MS. WILLIAMS: And what types of
8
deformities were found?
9
MS. WASIK: The contractor does not
10
report what kind of specific head capsule
11
deformities they observe in the specimen. I
12
believe it's common practice to count all
13
types of head capsule deformities together
14
when you're evaluating incident rates.
15
During 2002 no other stations in North Shore
16
Channel or deep draft North Branch Chicago
17
River exhibited head capsule deformities
18
besides Grand Avenue.
19
MR. ANDES: And give us an example of
20
what a head capsule deformity is.
21
MS. WASIK: Could I show you an
22
example?
23
MR. ANDES: Or just describe.
24
MR. SULSKI: Are you going to stand on
275
1
the chair?
2
MR. ANDES: Can you describe what that
3
means? Does it have a malformed head?
4
MS. WASIK: Right. It could be a jaw
5
deformity or other sort of mandible
6
deformities. There's various ones that we
7
have an expert to identify. And I considered
8
showing a photograph, but you can hardly kind
9
of tell what's going on unless you really
10
know what they're supposed to look like, so.
11
MS. WILLIAMS: What species exhibited
12
these deformities?
13
MS. WASIK: Let's see. The two taxa
14
with malformed specimens were chironomus and
15
dicrotendipes, d-i-c-r-o-t-e-n-d-i-p-e-s
16
simpsoni, s-i-m-p-s-o-n-i. Just over half of
17
the 19 chironomus examined from station 46 or
18
Grand were deformed.
19
MS. WILLIAMS: Do we know why this
20
station was unique in that respect?
21
MS. WASIK: No. I couldn't say.
22
MS. WILLIAMS: Question 17: Is the
23
statement on Page 5 that, quote, "Fine
24
sediments dominated the Chicago River bottom
276
1
with one to five feet depth of fines,"
2
unquote, based on a physical habitat analysis
3
of the sampling sites such as QHEI or the
4
analysis of the petite ponar sediment
5
samples?
6
MS. WASIK: It was based on both.
7
MS. WILLIAMS: What was the
8
predominant fine sediment: Silt, sand, fine
9
gravel, or other?
10
MS. WASIK: Well, in terms of the
11
first part of your question, based on
12
physical habitat analysis for which we take a
13
ponar sample, place it in a tray, and then
14
visually characterize the sediment as well as
15
probing the bottom with a telescoping rod,
16
during our most recent assessment in 2006,
17
silt made up 90 percent or more of the
18
sediment samples taken from the center of the
19
Chicago River at Wells and Lake Shore Drive.
20
The sides varied, mostly consisting of silt,
21
sludge, and zebra mussel shells.
22
MS. WILLIAMS: So you're relying on
23
2006 information in this question -- I mean
24
in this quote.
277
1
MS. WASIK: Yes. That may be true
2
also for 2002. I'll have to go back and
3
check.
4
MS. WILLIAMS: And then what was the
5
predominant fine sediment then?
6
MS. WASIK: Like I said, it was the
7
sides were varied, but it consists mostly of
8
silt, sludge, and zebra mussel shells.
9
Whereas the silt made up 90 percent or more
10
of the sediment samples from the center at
11
both Chicago River -- I mean in Chicago River
12
at both Wells and Lake Shore Drive station.
13
MS. WILLIAMS: When you state on Page
14
5 that, quote, "Analysis of sediments from
15
the Chicago River main stem sampling stations
16
showed presumed toxic concentrations of PAHs
17
and polychlorinated biphenyls or PCBs," are
18
these results comparable to what was reported
19
the CAWS UAA Attachment B?
20
MS. WASIK: Yes. PAH and PCBs are
21
listed on Page 4-53 of the UAA report as
22
being above presumed toxic levels. Since --
23
sorry. That's all.
24
MS. WILLIAMS: Did all eight toxicity
278
1
tests indicate 80 percent and 99 percent
2
survival with no significant difference
3
compared to the control?
4
HEARING OFFICER TIPSORD: A point of
5
clarification. The written question is 88
6
percent to 99 percent.
7
MS. WILLIAMS: Yes. That's correct.
8
I hope. 88 percent to 99 percent.
9
MS. WASIK: Since one of our samples
10
wasn't sealed properly, it was ruined during
11
transport to the consultant. Therefore,
12
there were only sediment -- seven total
13
sediment toxicity reports, not eight, for the
14
Chicago River. But the percent survival did
15
range from 88 to 99 percent with no
16
significant difference from the control.
17
MS. WILLIAMS: Question 19: Was it
18
true of both Hester-Dendy substrate and
19
petite ponar samples at both Lake Shore Drive
20
and Wells Street that, quote, "A majority of
21
benthic invertebrates collected from the
22
Chicago River were aquatic worms"?
23
MS. WASIK: The ponar samples from the
24
Chicago River constituted 98 to just over --
279
1
under 100 percent of the total organisms at
2
both stations. In the Hester-Dendy, 92
3
percent were oligochaetes and the Wells
4
sample; whereas the dominant organism in the
5
Lake Shore Drive Hester-Dendy sample was
6
gammarus fasciatus, an amphipod.
7
MS. WILLIAMS: Question 20 --
8
HEARING OFFICER TIPSORD:
9
Miss Williams, I don't think we're going to
10
get the rest of these in the next half hour,
11
so with that, let's close for today, give
12
everybody a break, and we'll start at 9:00
13
a.m. tomorrow morning.
14
MR. ANDES: One other scheduling
15
matter. I've been receiving e-mails from our
16
next round of witnesses, and it does appear
17
that after Dr. Dennison, our next three
18
Garcia, Friedman, and Nemura are all
19
available on the 17th and 18th of February.
20
So if we want to lock those dates in.
21
HEARING OFFICER TIPSORD: I already
22
asked in advance because you can always
23
cancel the rooms for the Thompson Center for
24
rooms. So if we get rooms, we'll go the 17th
280
1
and 18th of February. Great. Thank you.
2
See you all tomorrow morning.
3
(At which time the
4
hearing was continued to
5
December 6, 2008.)
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1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF COOK )
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4
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.
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___________________________
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LAURA MUKAHIRN, CSR
CSR NO. 084-003592
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