To Whom It May Concern:

As the Chief Engineer and Assistant Director of Frederick County Sanitation Authority dba Frederick Water, I appreciate the opportunity to provide comments on the proposed changes in the current Triennial Review on behalf of my organization.  Two items are of particular concern to us: the freshwater copper criteria and the nutrient-related algae recreational use thresholds in the Shenandoah River.

We oppose the change to the "biotic ligand model" (BLM) for the freshwater copper criteria and urge the Board to continue with the current criteria. We also suggest modifications to the proposed nutrient-related algae recreational used thresholds in the Shenandoah River to be protective of the shallow stream recreational use without being more stringent than necessary. Our position on these issues is explained below.

As a member of VAMWA, we are aware that decades of use and experience throughout Virginia demonstrate that the current copper criteria are very effective for protecting aquatic life.  The current criteria’s hardness-based equation and Water Effects Ratio (WER) option are based on the solid technical foundation of USEPA water quality science coupled with a successful track record of widespread national use in protecting aquatic life since the 1980s.  We are not aware of any situations, or allegations of situations, in which the current criteria failed to protect aquatic life.

DEQ, USEPA, and USEPA’s Science Advisory Board do NOT claim that the “biotic ligand model” (BLM) criteria is a more accurate representation of non-toxic copper concentrations than the current criteria.  This is an extremely telling and significant omission.  Instead, USEPA bases its support on procedural points such as the cost of WERs to permittees.  As a permittee, we would like to voice our dissent.  We do not believe that the BLM will save us money, and we have additional concerns about the proposed change.

The current criteria’s WER procedure directly measures and evaluates toxicity on a permittee-specific, site-specific basis.  The site-specific approach is a more accurate measure of aquatic life protection than the less-direct computer model-based BLM approach.  The BLM model is programmed in such a way as to produce more stringent requirements for copper.  The model experience elsewhere has shown that BLM results in tighter limits compared to the use of a WER, and these limits are not necessary to protect aquatic life.  Furthermore, no data has been presented in the rulemaking that suggests there is any additional BLM criteria benefit to aquatic life.  It is simply not proven. 

The BLM is inconveniently structured to be non-transparent.  It is impossible for most of us to evaluate, understand, and trust the protocols the BLM model uses to calculate safe levels.  The model is basically proprietary and not user-friendly. 

Most of our neighboring states (MD, WV, NC, SC, TN, GA, KY) have not adopted or mandated the use of the BLM approach.  Adoption in Virginia will make permitting more difficult and place the Commonwealth at a competitive disadvantage compared to other states with whom we compete for economic development. 

Under the Clean Water Act, the method and process of how Virginia will limit copper to safe levels is the responsibility of the Commonwealth and not an agency-level policy decision.  We see no reason why the Commonwealth would want to shift from its legacy and successful approach under the current criteria to the BLM approach with its known problems and peculiarities.  Therefore, we strongly recommend that the Board remain consistent and continue with the current approach.  We ask that you not consider the BLM proposal. 

Additionally, Frederick Water, like VAMWA, supports DEQ’s efforts to develop and implement nuisance algae sampling and quantitation protocols and recommends criteria based on unambiguous data demonstrating persistent undesirable conditions.  DEQ’s proposal includes impairment thresholds expressed as measures of stream bottom attached filamentous algal Chlorophyll-a (“Chl-a”).

The proposed 100 mg/m2 seasonal median has little to no scientific support, and we recommend that it be deleted.  None of the studies reviewed by the Department involved user perception surveys or otherwise demonstrated a direct linkage between 100 mg/m2 and recreational uses.  In contrast, direct evaluations conducted by other States demonstrated the majority of users found sites with higher Chl-a values to be desirable for recreation.  While we would not object to DEQ using the 100 mg/m2 value as an internal guideline for prioritizing sites' additional monitoring, we do not support the use of this value as the seasonal median.

Furthermore, the proposed two-month average of 150 mg/m2 is at the low point of a standard literature-based range of 150 to 200 that has been discussed throughout the process for approximately the last five years and at the low point of the observational and other data from other States.  The proposed choice of the threshold at the low end of this range is very conservative.  The Board should instead select a value at the high end of the range to protect the use adequately without being more stringent than has been demonstrated to be necessary. 

Lastly, we are concerned that the proposal establishes a Chl-a based impairment of the recreational use when there is an exceedance in more than one recreational season in a three-year period.  We request that this “one-in-three” evaluation be replaced with a “two-in-six” approach.  The two options are essentially equivalent; however, the two-in-six would be consistent with the approach DEQ/SWCB recently adopted for Chl-a criteria for the Lower James River.  Two-in-six is also desirable because it is more consistent with the two-in-six assessment period generally applied in DEQ’s Water Quality Assessment Guidance.

Recommendations have been presented to DEQ on some relatively minor assessment guidance issues, including avoiding a sole focus on a single “worst-of-the-worst” stream assessment location that ignores the remainder of a waterbody assessment segment that may be miles in length.  While the impairment threshold changes requested above and these relatively minor assessment changes, we believe the criteria would be protective of the shallow stream recreational use in the Shenandoah River without being more stringent than necessary to do so.

Thank you for your consideration of these comments and recommendations.  We appreciate the opportunity to share our concerns.

Sincerely,

Michael Newlin, PE

Frederick Water