Minutes 2002

Environmental Quality Board and Staff (first part only): Dr. David Samuels, Becky Charles, Libby Chatfield.

Committee Members: Pat Bowen (NRCS), Tom Brand (WVDA), John Rowe (WVDF), Martin Christ (WVRC), Michael Hawranick (WVBPH), John Wirts (DWR), Wayne Appleton (WVMA and WVCC), Neil Gillies (Cacapon Institute), Kathy Rushworth (MWQA), Rodney Branson (WVFB), Larry Emerson (WVCA), Tiffany Crawford (USEPA).

Others: Bob Williams, Liz Appel, Tim Ballon, Lisa Balderson, Paul Barnette, Ron Evaldi

3. November 14, 2001, Memo from Geoffry Grubbs to Directors, State Water Programs, and others.

5. Federal Register material from EPA’s website concerning preparation of Ecoregional Nutrient Criteria.[2]

There were two parts to this meeting. In part I, Dr. David Samuels of the EQB introduced the charge and made introductory remarks. In part II, the Nutrient Criteria Committee (NCC) followed the proposed agenda and made several decisions.

1. All in attendance introduced themselves. Groups clarified their primary committee members and their alternates. Kathy Rushworth is the committee member for the Municipal Water Association and Luke Richmond is the Alternate. Martin Christ is the committee member for WV Rivers Coalition, and Evan Hansen is the alternate.

2. Dr. Samuels pointed out that the NCC needed to appoint a record keeper for this particular meeting. Dr. Christ volunteered, and was accepted as clerk for the meeting.

3. Libby Chatfield of EQB reviewed the charge to the NCC, and pointed out the justification outlined in the EPA memo by Geoffrey Grubbs.

4. Tiffany Crawford reviewed likely release dates for the nutrient database being prepared by a consultant to the EPA. The data concerning rivers and streams for WV should be available by mid-July. Ms. Crawford also agreed to provide links to the EPA’s Technical Guidance Documents (see handout #6).

5. Dr. Samuels reviewed the agenda. There was a special request to report to the EQB office any expect expenses, such as photocopying. Ms. Crawford invited the NCC to generate a letter requesting support for the project.

6. Becky Charles, counsel for the EQB, and Dr. Samuels reviewed the requirements of the Open Meetings Law for the NCC:

· Subcommittees, whose work might be hindered by requiring announcement of meetings, may not make decisions on behalf of the committee, including decisions about filtering information to be brought to the NCC.

· Public notice must be published for 5 days before the meetings. The State Register has a deadline of Wednesday for publication the following Monday.[4]

· The EQB recommends the practice of deliberating with limited interruption, and then opening the floor to any audience members.

7. Dr. Samuels urged the committee to seek consensus, and cooperate for the sake of the welfare of West Virginia’s citizens, businesses, and environment.

Naming a chair: It was moved, seconded, and passed without dissent that Tom Brand should chair the current meeting.

Review of agenda: Item 10 was moved to the end of the meeting, so that information generated could immediately be relayed to the EQB office. The selection of a meeting schedule (item 5) was also deferred.

1. Questions on the charge: The NCC observed that the first phase of the process has the task of recommending a plan for identifying nutrient criteria, rather than of choosing actual numbers. The fact that the EPA database is not yet ready, therefore, is probably no obstacle to the Committee’s work.

2. Taking minutes: The Committee determined that it would be best if someone from outside the committee could be hired to take minutes, or could take minutes as part of their job. John Wirts volunteered staff from the WVDEP-DWR.

3. Location of meetings: It was recognized that the distance for travel across WV were an obstacle to good participation. It was agreed to hold the next meeting in the WV Farm Bureau offices in Buckhannon, and to look into teleconferencing possibilities for later meetings.

4. Decision making structure: The Committee agreed to seek complete consensus on every issue. In the event that no consensus is reached, alternative views are to be recorded and scientifically explained in the written document. The names of the Committee members’ organizations will be associated with the view they espouse.

The Committee also determined that it should select a Committee member as chair, but that it should be able to procure a facilitator should discussion become heated. Ms. Crawford offered some assistance by the EPA.

Tom Brand was chosen unanimously as chair during the time the NCC develops the plan for the development of nutrient criteria.

5. The scheduling of the next meeting was deferred until the end of this meeting.

6. Role of alternates: The Committee agreed that alternates were invited to sit at the table and participate in deliberations, to work on the tasks of subcommittees, and to vote for the organization they represent in the absence of the Committee member.

· The limitations of data (detection limits, analytical methods used) must be included with any data used by the group.

· Committee members would send out calls for additional data and analysis to groups they represent.

· Committee members would send out calls for additional data and analysis to faculty at WV colleges and universities.

· A committee, led by John Wirts, would serve to keep track of all the data to be examined by the committee.

8. Subcommittee Topics and organization. Committee members volunteered, and were approved, for the following tasks:

· Kathy Rushworth: Document Committee--will serve as repository for pieces of the report as it gets written.

· Wayne Appleton: Distill EPA’s Technical Reports to determine their usefulness for the NCC in determining nutrient criteria.

· Martin Christ: Designated Use section committee. Write and present section enumerating Designated Uses to be protected with nutrient criteria.

10. Writing Assignments were assigned according to the committee assignments, above.

11. Expenses: The Committee recognized the following justifiable expenses for its work: travel and per diem for those whose organizations could not support their participation in the NCC; a facilitator when necessary; rental of meeting space; costs for obtaining publications; mailing costs; photocopying, and costs associated with data compilation. Pat Bowen agreed to prepare a rough budget for a request for support to the EPA.

NEXT MEETING: The next meeting was set for Friday, June 28, 9:00 AM to 3:00 PM at the WV Farm Bureau Office in Buckhannon.

[1] Abbreviations: MWQA-Municipal Water Quality Association; NRCS-Natural Resources Conservation Service; WVDA-WV Department of Agriculture; WVDF-WV Division of Forestry; WVRC-West Virginia Rivers Coalition; WVBPH- WV Bureau for Public Health; DWR-WVDEP Division of Water Resources; WVMA-WV Manufacturer’s Association; WVCC-WV Chamber of Commerce; WVFB-WV Farm Bureau; WVCA-WV Coal Association.

[2] http://www.epa.gov/fedrgstr/EPA-WATER/2001/January/Day-09/w569.htm

[3] http://www.epa.gov/ost/standards/nutrient.html

[4] See WV Secretary of State’s website.

Committee Members: Pat Bowen (NRCS), Tom Brand (Potomac State College of WVU), John Rowe (WVDF), Martin Christ (WVRC), Michael Hawranick (WVBPH), Wayne Appleton (WVMA and WVCC), Neil Gillies (Cacapon Institute), Kathy Rushworth (MWQA), Rodney Branson (WVFB), Tiffany Crawford (USEPA), Kim Miller (USGS), Randy Sovic (DWR)

Alternates: John Wirts (DWR),Evan Hansen (WVRC),Matt Monroe (WVDA), Alvan Gale (DWR), Rick Heaslip (NRCS), Ron Evaldi (USGS), Randy Maggard (WVCA)

Others: Roger Sherman, Richard Herd, Randolph Ramsey, Jeffery Foster, Marc Harman, June Degraft-Hanson

Unfinished Business

Evan Hanson – went over VEE’s approval of Rivers Coalition $ 14 k grant request

Review and analysis of available nutrient data and assured group that this grant

- Neil Gillies mentioned that Kentucky has established periphyton sampling program and asked Evan and Martin Christ to summarize their educational background.

Video Teleconferencing

Pat Bowen stated that the WVU’s Extension Service offers “interactive video networking” $ 60 / hour / location - several sites available

Randy Sovic went over EQB discussion of funding for committee expenses. Letter forwarded to EPA. Pat Bowen drafted letter. Came up w/ $20k.

Unfinished business from last meeting: Martin Christ went over need to address FOIA requests. Group decided that EQB would deal with any FOIA’s. Kathy Rushworth reminded group that she would forward all handouts to the board. Motion made, seconded, and approved that “Our policy will be to keep and supply all materials to the EQB in the case of any requests for information”

Note Taker

Tom Brand offered to get someone from the university at no cost, did not have specific person yet. Preference was for staff rather than student.

Randy Sovic stated the benefits of utilizing EQB’s technical advisor. Several advantages as well as concerns with having Libby Chatfield as the note taker were expressed.

Evan Hanson recommended a standing invitation to Libby to attend these meetings as technical expert, not as note taker – no objections.

Group reiterated that we will invite Libby to participate in the meetings while taking up Tom Brand’s offer of supplying a note taker. Motion passed unanimously.

USGS Basin –wide approach to data. Discussed compilation of data from different sources. He felt that we should create GIS coverages at a minimum.

Talked about difficulties of using results of “less than minimum detection limits” or censored data.

ENSR database should be available soon, question arose: Why are we bothering with this effort of compiling data if it has already been done?

Martin Christ and Neil Gillies lead discussion of appropriate forms of nitrogen and phosphorus to sample. Nitrate and Ammonia are most important locally, while total N is important when considering downstream effects. Also need to be concerned with the amount of nitrogen bound in existing algae and bedload, as well as cycling through the system

Chesapeake Bay Program – parts of this will and should show up in some way in the “plan” for WV as well as other states

Region 5 has turned in plan that followed the outline, utilizing reference condition and effects based approaches. Other possibilities are biological and aesthetic based.

Discussion of “What is the nutrient problem in the state?, “How to define the problem?” You can have enrichment without having a particular problem with our streams in the state – but contributing to the downstream nutrient problems.

Several people expressed concerns with others (Chesapeake & Gulf) telling us what our problem is.

Discussion of whether or not to consider economic impacts when developing criteria. Some felt that we should look first strictly at the science of nutrient impacts separately from any economic impacts. There are mechanisms to go through to allow more pollution if attainability isn’t practical. Others were concerned that TMDL’s will need to be written for any stream that doesn’t meet whatever criteria we come up with.

Discussed using the National Strategy Development of Nutrient Criteria Document, Technical Guidance for Rivers and Streams, and the “Grubbs document” to create the plan.

Discussed the data that DEP’s Watershed Assessment Program has been collecting and will be collecting. The program has 1835 sites with both macroinvertebrate data and nutrient data (single samples generally). The program began collecting periphyton this summer at randomly selected sites (n=150). A discussion of what periphyton can reveal about a stream followed.

Periphyton responds quickly to changes in nutrient levels and can store nutrients. The periphyton community (which algal species or genera are present and in what proportions) is probably better to use than biomass.

Question arose: If a community of periphyton is different from the “reference community”, does that mean that it’s impaired? We have the “balanced and indigenous community” issue to deal with. Martin Christ suggested working with Neil Gillies on the interactions of nutrients, periphyton, macroinvertebrates, and fish. Neil mentioned that it is nearly impossible to define a natural condition for larger streams. Wayne Applegate mentioned alternative measures that could be looked at: Chlorophyll A, DO sags, turbidity.

Maryland and Virginia are contemplating initiating a periphyton collection effort.

Rick Heaslip discussed NRCS’ National Resource Inventory. Good source of information on landuse, as well as soil information, census data on livestock concentrations (animals / acre). They used satellite data to create the landuse numbers. Could use to correlate instream data to landusage.

Kathy has minutes and agenda from first meeting, and a document from John Rowe of Forestry. John mentioned Fernow Experimental Forest as a potential source of data (Nitrogen data from 1960 to present). Will keep a copy of all handouts and provide to EQB and anyone else.

Wayne handed out summary of Grubbs memo and technical guidance document and discussed chapter by chapter.

Some members expressed concern about using the reference condition approach – it doesn’t necessarily provide impairment threshold.

Martin suggested the possibility of using process control statistics (some deviation from the mean)

Tiffany added that none of the state plans that she has reviews had the reference approach as their first choice.

One of group’s tasks will be to tie what our regulations say about protecting downstream uses with specific designated uses. Two cases:

Downstream use within WV. Permits could be written with the idea of protecting the entire downstream watershed in mind. Two possible ways to do this: add an entire new category or add sub-category under existing categories.

Case II – Downstream uses outside of state. It was acknowledged that this will be more difficult to get into rules.

Have not received any data from non-agency groups. USGS provided CD of their data. John will assemble available data so that we can at least see what data exist and where it is from.

Tiffany emphasized working on a plan. Group decided to work in sub-groups to create draft plans prior to next meeting and agreed to circulate electronically so that others can read and prepare comments.

The need for a facilitator to help with assembling the individual plans into a single plan was mentioned. Neil Gillies said he would contact Canaan Valley Institute to see if they could provide facilitator.

These minutes should be considered draft until modified, clarified, corrected by the Committee at its next meeting on Sept. 5, 2002.

All persons present introduced themselves and their affiliation. Those signing the attendance sheet included:

a. Explanation of the EQB’s action regarding adding new members to the Nutrient Criteria Committee:

A memorandum from Edward Snyder was distributed. New members added by action of the EQB were: Joe Hankins (Freshwater Institute in Shepherdstown); Margaret Janes (the Appalachian Center for the Economy and the Environment); Ben Stout (aquatic ecologist from Wheeling Jesuit University); and Dan Ramsey (USFWS).

A discussion followed during which some members of the committee expressed concern about politicizing the nature of the group’s work through changes in membership and composition of the committee. A letter to Edward Snyder from Karen Price of the West Virginia Manufacturers Association and Steve Roberts of the West Virginia Chamber of Commerce was distributed, as it articulated the viewpoint of concern.

A concern was raised about changing the composition of the group to a stakeholder committee through new members. Tiffany Crawford of EPA emphasized that EPA was not a stakeholder, rather a participant to ensure the process is correct and follows on a path toward legal compliance. Others on the committee suggested that the additional members added scientific and technical expertise and that not everyone was pleased with the original committee.

Those expressing concern about adding members cautioned that the group is set up to reach consensus and that counting votes should not be given weight since the representational make up of the group remains a concern to some.

Mr. Armbrecht helped conclude the discussion by suggesting that concerns about membership should be addressed to the EQB that constituted the committee, and he also commended the scientific backgrounds of the membership.

Others suggested that the committee’s success will be defined by how it works and not who it is. The committee should do its best to bring the best science and interests to the EQB and let the Board decide what to do with those recommendations.

Dave Clark with the Canaan Valley Institute was introduced as the meeting facilitator.

- Include an omitted comment regarding the suggestion to use process control statistics (some deviation from the mean)

Motion to accept minutes with these modifications was seconded and passed without dissent.

There is not a budget yet, but work is being done in this regard. Region III states will get a maximum of $10,000 at this point. EPA is asking the committee to outline funding needs so that these can be factored into next fiscal year funds. (this covered agenda item # 5: Funding available from USEPA)

The Board will have more discussions on reimbursement and any changes or updates, and perhaps limitations, will be reported to the committee as decisions are made.

4. Status report of Chesapeake Bay Agreement: (note, this item was moved to directly after lunch due to logistical problems)

Bill Brannon, DEP, Division of Water Resources described the status of the Chesapeake Bay agreement. Some of the points raised included:

w A compact of states formed to address problem before a TMDL is required for the Bay (i.e., remove it from 303 D list).

w WV, DE, and NY were asked to develop a Memorandum of Agreement with the signatories.

w DE and NY achieved consensus and signed, while WV worked through its reservations.

w In June 2002, WV’s governor signed WV in as a voting member of the process and thus gave WV a critical position in negotiations and in appropriations. So far $250,000 has been provided in funding.

w Note that the Chesapeake Bay Program includes a nutrient sub-committee. Mr. Brannon passed around an organizational chart and a summary of the nutrient sub-committee.

w There was discussion about how WV’s involvement in the Bay program fits or doesn’t fit into the Nutrient Criteria Committee’s work. EPA suggested these are not isolated functions.

The group was given time to read through 4 different plan submissions, which were informally referred to by the following names:

The facilitator reviewed the committee’s purpose: to advise the EQB on the plan due to the USEPA for use in developing nutrient standards. The due date to EPA is 10/31/02. The group affirmed that it will operate on consensus and decided to use the EPA guidelines passed out during the meeting as the framework.

The following represents the perceived points of consensus emanating from a discussion about each section of the EPA guidelines. A draft of the first 2 main headings (approach and form) were handed out after lunch and the Committee was given an opportunity to comment or make changes—no changes were asked for at this time.

The first step will be to define “impairment” for purposes of the nutrient criteria schematic [questions still on the table about the approach to this].

b. If there is not sufficient data for a cause and effect model, the approach should be to establish an empirical relationship.

c. The alternative to the first two approaches is that the Working Group will define when and under what circumstances a reference-based criteria might be appropriate.