Reply to Harold Reheis Letter of January 22, 2002 on Water Quality Issues

March 22, 2002

Harold Reheis, Director
Georgia EPD
205 Butler Street S.E.
East Floyd Tower
Atlanta, GA 30334

Dear Mr. Reheis:

I am responding to your letter of January 22, 2002 that addressed several issues we raised in a memo and petition on Georgia water quality, submitted November 26, 2001.

Our petition and memo were initiated in an effort to focus the attention of EPD and the Board of Natural Resources on several objectives:

  • Improving the accountability and reliability of environmental permitting decisions.
  • Expanding both the scope and depth of impact assessment in reviewing permit applications.
  • Integrating environmental monitoring, assessment, and research to enhance the use of information in evaluating resource conditions and proposals for regulated uses and activities.

    Please note that there are four separate attachments to this letter, each focused on a separate area of resource assessment and protection policy that has been discussed in our materials and your response.

    In reviewing the attachments, please consider the role of EPD in implementing antidegradation requirements of federal clean water policy under the Clean Water Act, which are fundamental to various aspects of several issues covered here. It is not evident that EPD has demonstrated that "lower water quality is necessary to accommodate economic or social development," nor has EPD assured "water quality adequate to protect existing uses fully," as evidenced by the facts cited about Georgia's fish, shellfish, and water quality in our petition and accompanying memo. Finally, it is our position that EPD has not met federal requirements in "antidegradation policy" regarding "reasonable best management practices for non-point source control," as indicated by rising levels of nitrogen, phosphorus and sedimentation in Georgia waters, and historically extensive use of buffer variances (reductions) granted by EPD under the state Soil Erosion and Sedimentation Act.

    Thank you for your initial response in attempting to address the concerns of our organization.

    We hope you will reply more thoroughly to the questions and remarks in this mailing as a good-faith effort to address critical water resource issues important to coastal Georgians.

    David Kyler, Executive Director

    1. Use of scientific information in evaluating environmental permits
    2. Flow disruption in river systems
    3. Wetlands functions and adequate buffers
    4. Water quality, downstream impacts & aerial deposition

    cc. Governor Roy Barnes
    Board of Natural Resources
    State Water Plan Study Committee
    State Water Plan Advisory Committee

    Attachment 1: Use of scientific information in evaluating environmental permits.

    First, reference item (2) in your letter of January 22, 2002, responding to my proposal that EPD use scientific expertise to assist in review of the more complex and potentially significant permit applications. Since I acknowledged funding limitations in my original memo, your statement that "EPD/DNR cannot fund new research" was unnecessary. It was never my intention that EPD assume this responsibility.

    However, if you agree on the benefits of having such expertise available, it seems completely reasonable that DNR/EPD should explore the possibility of finding outside financial support for using peer review by collaborating with university system research administrators. Possible sources of federal funding through the National Academy of Sciences, the National Science Foundation, and several others seem promising.

    I understand that you have already agreed in principle that it would be beneficial to have some reliable means for distinguishing routine permitting assessments from those of greater complexity and difficulty. This would enable EPD to use its limited resources more effectively by investing them where they are most needed, as well as in determining when outside expertise would help enhance decision-making. Presuming you agree on this point, we would be glad to collaborate with EPD and other advisors in recommending a set of criteria that could be used for this purpose, and then refined through practice.

    I trust that these points clarify some of the reasoning in my original memo, which was aimed at improving the accountability and reliability of environmental permitting decisions. Surely we can agree that better use of scientific information and expertise, through enhanced regulatory procedures, will lead to improved protection and monitoring of natural resources. Furthermore, this policy would undoubtedly lead to more practical research having near-term benefits for supporting better decisions affecting resource use and protection. With this mind, we urge state officials to implement the recommendations described.

    Attachment 2: Flow disruptions in river systems.

    It is encouraging that the DNR board has recommended that interbasin transfers should be limited to those within a county or adjacent county. However, incrementally, a proliferation of such small transfers could accumulate to produce an effect of such magnitude that it contradicts the intended policy objective. If most of a county or its service area drains into a different major watershed from the one where the water was withdrawn, it can be assumed that a proportional amount of that water, in effect, will be transferred. As the number of such cases grows, the problems of flow disruption escalataes.

    One possible outcome of this policy would be the diversion of water from coastal river systems flowing to the Atlantic Ocean toward rivers such as the Chattahoochee/Flint system, which flows to the Gulf of Mexico. With a sufficient number of such small transfers, coastal Georgia fisheries, and the riverine and estuarine systems that support them, could suffer substantially. We are already witnessing damage to coastal fisheries that are attributable in part to the increasing salinity of inter-tidal waters, believed by qualified ecologists to be caused by a loss of fresh water flow from upstream, exacerbated by drought.

    To avoid such risks that result from small (and seemingly negligible) but cumulatively significant diversions, we recommend a strict prohibition on interbasin transfers, with allowances for rigorously enforced exemptions that specify restricted discharges of wastewater into separate major watersheds. Further, we advise that creation of new reservoirs should be severely limited even if they do not produce interbasin transfers. There are various justifications for such limits, including avoidance of accelerated loss to evaporation, as well as flow disruptions that harm ecosystem functions. It is misleading to compare the loss of water from shallow aquifers through evapotranspiration with the loss of evaporation caused by reservoirs. The two mechanisms could produce widely different ecosystem impacts. Loss of water flow and volume caused by reservoirs is especially damaging to aquatic ecosystems during drought. These impacts need to be more precisely understood before risking further harm to riverine habitats.

    We urge thorough consideration of these comments in making recommendations on new permit applications and state water policy. It will not serve the public interest if EPD sanctions measures to ensure water supply for new areas, while causing damage to fundamental ecosystem functions important to existing residents. Please note that among downstream water users in coastal Georgia are responsible, well-established nature-based businesses that support thousands of families and dozens of communities. State water supply policy that jeopardizes these interests would be a great injustice to this and future generations of Georgians.

    Attachment 3: Restore wetlands functions & provide adequate buffers.

    We are encouraged by DNR's policy of purchasing river corridor lands as buffers, and offer our support in whatever capacity needed to assist in this continuing effort. We fully understand the budgeting limitations that make this acquisition infeasible on a broader basis, and offer several suggestions for enhancing policies within these limitations. For example, using the latest studies on buffer effectiveness related to width and vegetation characteristics, DNR should adopt enhanced 'best management practices' for owners and users of riparian lands. It is widely believed that the minimum 25-foot buffer established by the Soil Erosion Act is woefully insufficient for ensuring adequate non-point source pollution safeguards.

    Once these new BMP standards were established, EPD/DNR could propose state legislation creating incentives for property owners, either in the form of Georgia income-tax deductions or local property tax appraisal adjustments, subject to periodic field inspections and monitoring.

    Another policy worth considering for restoring and protecting wetlands is the adoption of state regulations for so-called isolated wetlands. As you undoubtedly know, the federal court decision of January 2001 has resulted in drastic loss of federal protection of wetlands that are not contiguous with navigable waters. Although we understand that this outcome is a gross misapplication of the ruling by the Corps of Engineers in the case cited, there is a significant opportunity for Georgia to pre-empt this threat by implementing its own regulations. At the very least, these regulations should protect areas of isolated wetlands that are hydrologically connected to jurisdictional wetlands and/or navigable waters. Since groundwater is a common but important linkage between isolated wetlands and other features, these areas can serve as a vital resource essential to wildlife habitat, as well as supporting replenishment of water supplies via both aquifer and surface water recharge. There would be little difficulty establishing the public interest justification for state protection of isolated wetlands.

    Finally, sufficient restrictions on aerial application of petrochemicals used in agriculture and forestry could provide some of same benefits as increasing buffer width in certain areas. For example, if EPD adopted rules limiting aerial application of such materials to a minimum of 100 yards away from 'waters of the state,' wetland functions and water quality would be more fully protected. Based on EPA publications, we understand that some of these chemicals are relatively harmless to mammals, moderately harmful to birds, and yet extremely dangerous to aquatic ecosystems. {Concentrations on the order of 100 parts per billion are known to be hazardous.] Those with direct experience in applying these chemicals by air can confirm that such restrictions are quite reasonable, considering how far the toxins sprayed may drift from targeted areas under various, and often unpredictable, wind conditions.

    We urge you to explore these policy proposals as opportunities for improving protection of Georgia's vital natural resources and the health of our citizens.

    Attachment 4: Water quality, downstream impacts & aerial deposition.

    While I believe that EPD does, to some extent, "consider downstream impacts in water withdrawal" permitting decisions, other than 7Q10 and its successor interim policy, what are the standards you use to determine the nature and extent of downstream impacts? Perhaps you could direct me to the appropriate EPD staff person that can explain those standards and any other considerations that EPD takes into account in the water withdrawal permitting process alternative or additional assurances that accomplish a defined objective(s) - protect water quality, aquatic habitat, flow, etc.

    Based on USGS data, there is also evidence that flow characteristics have changed radically in Georgia rivers over the past several decades. Although average daily flow has remained relatively constant, after adjusting for seasonal and annual precipitation variations, the low-flows and high-flows have grown more extreme. This suggests that, whatever the standards used, decisions affecting a spectrum of interrelated public water resources (surface water, wetlands, and groundwater) are not being considered systemically. As a result, permits issued for groundwater, for example, are believed by many to have adversely affected ecosystem functions of river systems, including those in the coastal plain of Georgia. We ask that EPD investigate these trends and include them as factors in evaluating the impacts of proposed permitted activities in the future, using reliable procedures that are available for public comment prior to adoption.

    Our assertion that "toxins entering Georgia waters increased 83% from 1989 through 1998" is based on published data from the annual Toxic Release Inventory reports filed by EPA for the years cited. In your letter you state that such releases have actually decreased, but cite no substantiating data or sources of data that would support your claim. Please forward me the studies supporting your statement for our consideration in efforts to analyze and raise public awareness about this matter.

    Finally, we must take issue with your assertion that the mercury deposition issue can only be properly addressed through a national program. While a national program could be a definite improvement in environmental protection, EPD can help ensure that Georgia makes its contribution toward a cleaner environment for our citizens without waiting on the federal government or other states to address this known source of pollution. It is not acceptable for EPD to allow permit holders to remain unaccountable for proper control of a known source of pollution having extremely serious human health implications. We understand that there are at least three known cases of air quality permit violations by power plant operators that continue to pollute illegally in Georgia.

    Moreover, many of the state's political leaders have historically preferred state control of pollution regulation. Please explain why EPD prefers, in this instance, that the federal government assume control of dangerous pollutants from known sources within Georgia.
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