RESPONSIVENESS SUMMARY Stream Use Designation ...Cedar Creek (Jefferson Co.) 141 25. Cedar River...

RESPONSIVENESS SUMMARY

Stream Use Designation Revisions Prepared by the Iowa Department of Natural Resources September 28, 2010

Iowa Department of Natural Resources Responsiveness Summary

TABLE OF CONTENTS

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INTRODUCTION 8

RECOMMENDATIONS 10

COMMENT ISSUES 12

Issue: Attainability 13

Issue: Access 16

Issue: What types of activities are considered for Class A1 and Class A2 recreational uses?

16

Issue: What characteristics define “child’s play” in Class A3, Children’s recreational use?

20

Issue: Class A2 criteria is not protective of public health 22

Issue: Existing Uses 28

Issue: Stream flow fluctuation during the recreation season 32

Issue: Have you done an economic impact study on the effects of revising stream designations?

33

Issue: Are any other limits that will have to be adjusted to conform to the stream assessments?

34

Issue: Will this require public waste water facilities to adjust permits with industry?

35

Issue: How long will the public wastewater facilities have to comply with the standard once it has been approved by EPA?

35

EPA COMMENTS 36

1) Depth data indicate the Class A1 primary contact recreational use is an attainable use

37

2) Public comment indicates that a higher recreational use is an attainable use 39

3) Recommendations to remove the Class A1 use is not supported by data or the data was not submitted to EPA

41

4) Recommendation to remove the Class A1 use rely on data collected during various stages of drought, or depth data is discounted due to perceived “elevated flow”

41

5) A general use, rather than an aquatic life use, is recommended despite the presence of fish

47

6) No recreational use is recommended despite the presence of fish, and water in sufficient quantities and depth to make recreation attainable

48


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7) Legal descriptions in the Surface Water Classification document must be accurate for streams and/or lakes

49

8) Recommendation to remove the Class A1 use rely on data collected outside of the recreational use season

50

ORGANIZATION COMMENTS 52

Comment 1 53

Comment 2 57

Comment 3 58

Comment 4 64

Comment 5 65

STREAM‐SPECIFIC COMMENTS 71

1. Ames Creek (Clinton Co.) 72

2. Badger Creek (Webster Co.) 75

3. Battle Creek (Ida Co.) 77

4. Bear Creek (Dallas Co.) 79

5. Bear Creek (Jones Co.) 79

6. Beaver Creek (Boone Co.) 80

7. Beaver Creek (Hardin Co.) 82

8. Beaver Creek (Polk Co.) 83

9. Benjamin Creek (Jasper Co.) 85

10. Big Creek (Henry Co.) 90

11. Big Creek (Linn Co.) 92

12. Black Hawk Creek (Scott Co.) 98

13. Black Hawk Lake (Sac Co.) 99

14. Bloody Run Creek (Specific county unknown) 100

15. Bluff Creek (Boone Co.) 101

16. Boone River (Specific county unknown) 105

17. Boyer River (Harrison Co.) 105

18. Brush Creek (Fayette Co.) 106

19. Brushy Creek (Audubon/Carroll/Guthrie Cos.) 114

20. Buffalo Creek (Specific county unknown) 124

21. Calhoun Creek (Jasper/Marion Cos.) 125

22. Camp Creek (Polk/Jasper Cos.) 131

23. Cavitt Creek (Warren Co.) 135


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24. Cedar Creek (Jefferson Co.) 141

25. Cedar River (Specific county unknown) 145

26. Cherry Creek (Jasper Co.) 146

27. Cheslea Creek (Cerro Gordo Co.) 148

28. Clear Creek (Jasper/Marshall Cos.) 149

29. Clear Lake (Cerro Gordo Co.) 151

30. Cleghorn Ditch (Monona/Woodbury Cos.) 151

31. Des Moines River (Boone/Polk/Webster Cos.) 157

32. Drainage Ditch No. 11 (Polk Co.) 159

33. Drainage Ditch No. 60 (Sac Co.) 161

34. Duck Creek (Scott Co.) 164

35. East Branch Buffalo Creek (Buchanan/Fayette Cos.) 165

36. East Buttrick Creek (Green/Webster Cos.) 170

37. East Cedar Creek (Calhoun/Webster Cos.) 177

38. East Fork Crooked Creek (Henry Co.) 182

39. East Indian Creek (Story Co.) 182

40. Elk Creek (Clayton Co.) 184

41. English Creek (Marion Co.) 190

42. Fink Creek (Polk Co.) 191

43. Tributaries to Volga Lake (aka, Frog Hollow Lake) including Volga River

(Fayette Co.)

196

44. Grimes Hollow (aka, Bloody Run Creek) (Clayton/Delaware Cos.) 199

45. Hoosier Creek (Linn Co.) 203

46. Indian Creek (Jasper/Polk/Story Cos.) 209

47. Iowa River (Johnson Co.) 218

48. Knapp Creek (Benton/Johnson Cos.) 218

49. Lake of the Hills (Scott Co.) 219

50. Lime Creek (Benton/Buchanan Cos.) 220

51. Little Sioux River (Linn Co.) 227

52. Little Turkey River (Clayton/Fayette Cos.) 228

53. Little Volga River (Fayette Co.) 239

54. Little Wapsipinicon River (Buchanan Co.) 241

55. Little Whitebreast Creek (Lucas Co.) 254

56. Long Creek (Des Moines Co.) 256


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STREAM‐SPECIFIC COMMENTS cont.

57. Mason Creek (Scott Co.) 257

58. Middle Raccoon River (Dallas/Guthrie Cos.) 258

59. Mill Creek (Cedar/Jones Co.) 259

60. Mill Race (Iowa Co.) 262

61. Mineral Creek (Jackson/Jones Cos.) 265

62. Mississippi River (numerous counties) 269

63. Missouri River (numerous counties) 269

64. Morgan Creek (Benton/Linn Cos.) 269

65. Muchikinock Creek (Polk Co.) 270

66. Mud Creek (Muscatine Co.) 275

67. North Bear Creek (Winneshiek Co.) 277

68. North Branch Old Man’s Creek (Black Hawk/Grundy Cos.) 278

69. North Branch Volga River (Fayette Co.) 282

70. North Fork Maquoketa River (Dubuque Co.) 288

71. North Raccoon River (Buena Vista/Calhoun/Dallas/Sac/Woodbury Cos.) 299

72. Old Man’s Creek (Black Hawk/Grundy Cos.) 301

73. Otter Creek (Buchanan/Fayette Cos.) 301

74. Otter Creek (Linn Co.) 308

75. Paint Creek (Allamakee Co.) 309

76. Lower and Upper Pine Lakes with Pine Creek as tributary (Hardin Co.) 310

77. Plum Creek (Specific county unknown) 311

78. Prairie Creek (Jasper Co.) 312

79. Raccoon River (Dallas/Polk Cos.) 314

80. Ralston Creek (Johnson Co.) 315

81. Rapid Creek (Johnson Co.) 319

82. Rhine Creek (Johnson Co.) 323

83. Roberts Creek (Clayton/Fayette Cos.) 327

84. Rock Creek (Clinton Co.) 336

85. Rock Creek (Polk Co.) 339

86. Sanders Creek (Johnson Co.) 343

87. Sents Creek (Marion Co.) 347

88. Sewer Creek (Jasper Co.) 348

89. Silver Creek (Clinton Co.) 350


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90. South Fork Iowa River (Hardin Co.) 351

91. South Fork Middle River (Guthrie Co.) 352

92. Skunk River (specific county unknown) 355

93. South Raccoon River (Dallas/Guthrie Cos.) 355

94. South Skunk River (Hamilton/Story Cos.) 356

95. Spring Creek (Black Hawk Co.) 358

96. Squaw Creek (Story Co.) 361

97. Sugar Creek (Dallas Co.) 372

98. Sugar Creek (Jasper Co.) 372

99. Swan Lake (Carroll Co.) 375

100. Tracey Creek (Marion Co.) 375

101. Turkey River (Fayette Co.) 379

102. Union Slough Ditch (Kossuth Co.) 380

103. Unnamed Creek (aka, Comrie Creek) (Muscatine Co.) 381

104. Unnamed Creek (Urbana, Benton Co.) 391

105. Unnamed Creek (Jefferson Co.) 394

106. Two Unnamed Creeks (Amana Colonies Golf Course, Iowa Co.) 395

107. Unnamed Creeks #2 and #3 near Western Iowa Energy (tributary to Lime Creek) (Sac Co.)

399

108. Unnamed Creek (aka, Carnarvon Creek) (Breda, Carroll Co.) 405

109. Two Unnamed Creeks near Camanche (Clinton, Co.) 408

110. Unnamed Creek #1 (tributary to Drainage Ditch 60 and Outlet for Wall Lake Lagoons) (Wall Lake, Sac Co.)

414

111. Unnamed Creeks #1, #2, and #3 (Sac Co.) 417

112. Unnamed Creek (Early, Sac Co.) 418

113. Upper Iowa River (Allamakee/Winneshiek Cos.) 420

114. Volga River (Fayette Co.) 422

115. Walnut Creek (Jasper Co.) 425

116. Walnut Creek (Polk Co.) 427

117. Wapsipinicon River (Bremer/Chickasaw Cos.) 428

118. West Branch Buffalo Creek (Buchanan Co.) 429

119. West Fork Cedar River (Butler/Franklin Cos.) 430

120. West Fork Little Sioux River (Cherokee/Monona Cos.) 435


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121. West Nishnabotna River (Pottawattamie Co.) 443

122. White Breast Creek (Clarke/Marion Cos.) 443

123. Whitewater Creek (Dubuque Co.) 447

124. Winnebago River (Winnebago Co.) 448

125. Wolf Creek (Black Hawk Co.) 449

126. Yeader Creek (Polk Co.) 450

127. Yellow River (Allamakee Co.) 451

Appendix 1 – Commentators

Appendix 2 – Stream Gauge Information

Legend

Highlighted Text Classification change

Highlighted Text Stream being discussed in group of numerous comments

Highlighted Text UAA box


Introduction This is a summary of comments received in response to proposed revisions to the Environmental Protection Commission’s (EPC’s) water quality standards (WQS). The proposed changes were published in the Notice of Intended Action ARC 8599B on March 10, 2010. An Amended NOIA to allow for an additional public hearing was published in the Iowa Administrative Bulletin on July 28, 2010, as ARC 8978B. Seven public hearings were held across the state in six regional locations. This document provides a discussion of the issues raised by the comments as well as recommendations for final EPC action on the proposed changes. Summary of Rule/Rule Changes: 1. Revise and list approximately 497 stream segments. 2. Revise and list approximately 95 river and stream segments as Class A2 Secondary

Contact Recreational Use designated waters in the rule‐referenced document, “Surface Water Classification.”

3. Revise and list approximately 305 river and stream segments as Class A2 Secondary Contact Recreational Use and Class B(WW‐2) Warm Water‐Type 2 designated waters in the rule‐referenced document, “Surface Water Classification.”

4. Revise and list eight stream segments as Class A2 Secondary Contact Recreational Use and Class B(WW‐3) Warm Water‐Type 3 designated waters in the rule‐referenced document, “Surface Water Classification.”

5. Revise and list 33 river and stream segments as Class A3 Children’s Recreational Use and Class B(WW‐2) Warm Water‐Type 2 designated waters in the rule‐referenced document, “Surface Water Classification.”

6. Revise and list 19 river and stream segments as Class A3 Children’s Recreational Use designated waters in the rule‐referenced document, “Surface Water Classification.”

7. Revise and list 39 stream segments as Class B(WW‐2) Warm Water‐Type 2 designated waters in the rule‐referenced document, “Surface Water Classification.”

Recent rule making and 2006 legislative action have brought the Department’s water quality rules closer to compliance with federal Clean Water Act requirements and U.S. Environmental Protection Agency (EPA) regulations, establishing new levels of protection for water quality. As an outcome of these efforts, all 26,000 miles of Iowa’s perennial (flowing year‐round) streams are initially protected at the highest levels for recreation and warm water aquatic life uses. These actions provide initial protection for


many miles of perennial streams that were previously not designated for aquatic life and/or recreational uses. Under the rules adopted in 2006, it is presumed that all perennial streams and rivers are attaining the highest level of recreation and aquatic life uses and should be protected for activities such as fishing and swimming. This concept of assigning all perennial streams the highest use designation, unless assessments show that the stream does not deserve that level of protection, is referred to as the “rebuttable presumption.” Included in the federal regulations are the provisions that allow for scientific analysis of these “presumed” recreational and aquatic life uses. An integral part of implementing the rules adopted in 2006 is verifying that a stream is capable of supporting the presumed uses. The concept of Use Assessment and Use Attainability Analysis (UA/UAA) is being applied by the Department as a step‐by‐step process to gather site‐specific field data on stream features and uses. The Department then assesses available information to determine if the “presumed” recreational and aquatic life uses are appropriate. The Department elected to perform a UA/UAA on any newly‐designated stream that receives a continuous discharge from a facility with a National Pollutant Discharge Elimination System (NPDES) permit. Prior to issuing an NPDES permit for an affected facility, the Department will complete a UA/UAA for the receiving stream or stream network. Seven public hearings were held in six regional locations: Des Moines on April 9 and August 23, 2010; Atlantic on April 1; Spencer on April 1; Independence on April 5, 2010; Washington on April 5, 2010; and Clear Lake on April 7, 2010. Notice of the hearings was sent to interest groups and statewide news network organizations. Written comments were received through August 23, 2010. The hearings were lightly attended and only three oral comments were received. Approximately 180 persons or groups provided written or oral comments on the proposed WQS revisions. 82 of these comments were general in nature and did not reference a specific stream. The commentators who provided public comment referencing specific stream segments are listed in Appendix 1. The responsiveness summary addresses all of the comments received. The comments received are addressed below in terms of the issues involved. The department did not list every comment received, but addresses each specific stream segment mentioned, as well as


merge common comments into major issue areas. The department did attempt to address every technical and miscellaneous question or comment received. Public Comment Breakdown: Total amount of commenter’s/responses = 180 Number of stream‐specific commenter’s = 98 Number of oral comments at public hearings = 4 Number of form letters = 82 Number of responses via survey = 36 NOTE: There were comments received that did not apply to stream segments proposed in this rule making effort. Number of stream designations that are proposed to change as a result of the public comments = 14 The questions and comments were sorted into common topics. The department’s response is written below each issue identified.

Recommendations Based on comments from the public, DNR is recommending 14 adjustments to the proposed stream use designations for the following streams:

Big Creek (Linn Co.) – A2 to A3 Bluff Creek (Boone Co.) – A2 to A1 Brush Creek (Fayette Co.) – A2 to A3 Brushy Creek (Carroll Co.) – A2 to A3 Indian Creek (Story Co.) – A2 to A1 Lime Creek (Buchanan/Benton Cos.) – A2 to A3 Mill Race (Iowa Co.) – A2 to A1 Mineral Creek (Jones/Jackson Cos.) – A2 to A3 Roberts Creek (Clayton Co.) – A2 to A1 Rock Creek (Polk Co.) – A2 to A3 Squaw Creek (Story Co.) – A1/A2 to A1 Little Wapsipinicon (Buchanan Co.) – Extended A1 section Unnamed Creek – Breda (Boone Co.) – A2 to A3


Unnamed Creek – Urbana (Benton Co.) – A2 to A3 One administrative change to correct a misspelled creek name is being recommended for the following streams:

Cheslea Creek (Cerro Gordo Co.) – This stream was identified as Chelsea Creek in the original notice.

Two streams will be withdrawn from rulemaking because more data is needed:

Rock Creek (Clinton Co.) South Fork Middle River (Guthrie Co.)


COMMENT ISSUES


Issue: Attainability

Public Comments

‐ “Please do not downgrade the more than 400 stream segments proposed. Iowa’s waters need MORE help, not less.”

‐ “I would certainly oppose changing the rules to allow more pollution…”

‐ “Iowa, a great place to live, is what we would like to believe. Let’s make and keep it so. One way is to maintain and protect high quality recreational water standards for its citizens to enjoy, as well as for the many visitors and vacationers. Water recreation is vital. It is water, and [citizens] should feel safe in our waters. Many enjoy fishing and consume their catch. If anything protections for water quality in our streams and rivers should be increased. Iowa can be a great and beautiful place to live and visit, but we must all work, take responsibility and contribute to make it so.”

‐ “If there is less protection for our water quality, access to that water should be restricted, and that would be an unhappy situation.”

‐ “It is NOT acceptable in any way for the safe quality standards for Iowa waters to be lowered because we feel we are overwhelmed. and unwilling to do what we know we need to do to stop the pollution. There is too much at stake for future generations to blindly look away at something so obvious that we can not drink.”

‐ “All rivers in Iowa are vital, so please reconsider the decision to downgrade water quality.”

“Downgrading the designation…is unfair and unnecessary.”

‐ “I oppose any further misuse of this stream that would simply allow it to become a ditch to get rid of agricultural waste.”

‐ “Granted this activity does not add dollars to your coffer, but it is part of rural Iowans’ way of life. I am simply dumbfounded and confused about you wanting to give less protection to ANY of our waters. What are your motives in this proposal? Political pressure from polluters. Natural resource usage that doesn’t produce revenue and therefore is unnecessary/unwelcome? All of our waters/Iowans deserve maximum protection.”

DNR Response: Water Quality Standards are the goals for Iowa’s water bodies. We are working to determine the highest attainable goals for these waters given our current designated use structure.


Recent rule making and 2006 legislative action have brought the Department’s water quality rules closer to compliance with federal Clean Water Act requirements and U.S. Environmental Protection Agency (EPA) regulations, establishing new levels of protection for water quality. As an outcome of these efforts, all 26,000 miles of Iowa’s perennial (flowing year‐round) streams are initially protected at the highest levels for recreation and warm water aquatic life uses. These actions provide initial protection for many miles of perennial streams that were previously not designated for aquatic life and/or recreational uses.

Under the rules adopted in 2006, it is presumed that all perennial streams and rivers are attaining the highest level of recreation and aquatic life uses and should be protected for activities such as fishing and swimming. This concept of assigning all perennial streams the highest use designation, unless assessments show that the stream does not deserve that level of protection, is referred to as the “rebuttable presumption.”

Included in the federal regulations are the provisions that allow for scientific analysis of these “presumed” recreational and aquatic life uses. An integral part of implementing the rules adopted in 2006 is verifying that a stream is capable of supporting the presumed uses.

The concept of Use Assessment and Use Attainability Analysis (UA/UAA) is being applied by the Department as a step‐by‐step process to gather site‐specific field data on stream features and uses. The Department then assesses available information to determine if the “presumed” recreational and aquatic life uses are appropriate.

The Department elected to perform a UA/UAA on any newly‐designated stream that receives a continuous discharge from a facility with a National Pollutant Discharge Elimination System (NPDES) permit. Prior to issuing an NPDES permit for an affected facility, the Department will complete a UA/UAA for the receiving stream or stream network.

The secondary contact recreational use (Class A2) provides the department with a means of providing recreational use protection to waters where Primary Contact recreation use is not attainable. It is important to note that the department is working to answer the question, “Is Primary Contact Recreation (i.e. swimming) possible here?” The key component in these assessments is whether or not there is enough water present in rivers or streams in which recreational uses may result in prolonged and direct contact with the water, involving considerable risk of ingesting water in quantities sufficient to pose a health hazard.


The department used depth as a guideline to determine whether or not a water body could support Class A1 uses to better address the issues regarding recreational activities. The concept here is that many Class A1 type activities require the presence of a significant amount of water to support those activities. The implementation of these guidelines do a good job of addressing this issue as waters that possess enough flow or water present to support Class A1 typically are the waters deep enough for canoeing or swimming (e.g., the 1,300 miles verified as Class A1 in the original assessments). The EPA has approved this approach in other states.

This approach is rather conservative in that the department is able to protect rivers and streams where no known recreational use has ever taken place. The idea is that the activities are “possible” whether it is a Class A1 or Class A2 stream regardless of water quality. This is a reason why secondary contact is used in Iowa and many other states such as Kansas, Missouri, West Virginia, Kentucky, New Hampshire, Louisiana, Texas, New York, Idaho, and Ohio, to name a few. It provides protection to rivers and streams in which recreational uses may result in contact with the water that is either incidental or accidental where the probability of ingesting appreciable quantities of water is minimal. It establishes a reasonable and practical goal use for smaller, shallow water systems where probability of ingestion is minimal due to the lack of flow.

It should be noted that as a result of these Clean Water Act‐mandated stream designation revisions, municipal and industrial regulated facilities (point sources, i.e. community or municipal wastewater treatment plants, industrial process plants like meat packers, or metal finishers) may face significant upgrades to the current wastewater treatment plants. These upgrade requirements can still be required regardless of whether the recreational usage is Class A1, A2, or A3. These upgrades could include disinfection and/or ammonia removal systems. The department has estimated that once these protections are in place, the associated fiscal impact could be up to $750 to $960 million statewide for affected communities and industries.

In reality, these stream use designation revisions actually upgrade stream protections by establishing implementable designated uses for Iowa's rivers and streams that have never received this level of protection before. As a result, water quality should significantly improve where these treatment plants are located. To say this is a downgrade in implementable protections is simply not true.


Issue: Access

Public Comments

‐ “The classification should be changed from the proposed Class A2 to General Use due to limited access by any public parties”

‐ “The presumption that public use is based on improved public accesses to any tributary, stream or river is erroneous. Paddlers have and continue to access rivers at both public accesses and at bridges all across the state.”

DNR Response: Accessibility is not a factor that can be used by itself to determine attainability according to federal guidance. However, the department does address accessibility in the UAA write‐ups. The designation of a stream does not change the nature of access to that stream.

Issue: What types of activities are considered for Class A1 and Class A2 recreational uses?

Public Comments

‐ “[These streams should] be designated primary contact recreation use.” “My husband and I are wading…, especially in springtime, for clean‐up purposes. Over the past several years, we are in the water twice in April, at the very least. Now that we are at retirement age, water contact will be more frequent”

‐ “As we canoed down the creek, working on the river cleanup, it was a hot day. We put in at Bertram and took out at the last bridge”, “We stopped to have lunch and take a swim”, and “If it is deep enough, we will paddle and swim.” “Please protect this stream for recreational uses.”

‐ “I would like to voice my reasons why I believe these streams should be considered primary contact. I am an avid paddler and fisherman, and have participated in floats or witnessed numerous amounts of primary contact (canoeing or kayaking, with some wading and fishing included)”

‐ “During the trapping season, many trappers set traps for otter, beaver, muskrat, raccoons, and mink along its banks”, many people are seen fishing”, “I have personally seen people canoeing or ‘tubing’…as well as swimming”, and “Seigning of minnows has been observed and people have just enjoyed looking for rocks and things”


‐ “…I believe these streams should be considered primary contact. I am an avid paddler and fisherman, and have participated in floats or witnessed numerous amounts of primary contact (canoeing or kayaking, with some wading and fishing included)”

‐ “During the trapping season, many trappers set traps for otter, beaver, muskrat, raccoons, and mink along [the stream’s] banks. Springtime finds cattle roaming the banks, and many people are seen fishing…fishing is a weekly pastime throughout the year as long as the water is open and not frozen. I have personally seen people canoeing or “tubing”…

‐ “The primary contact activities include; wading, minnow and crayfish seining, bug collecting, roc, collecting, fishing, and swimming in deeper pools by children as well as adults.”

‐ “I have been in the water of that stream many times to negotiate fallen trees and farmer’s fences. Please consider this stream as primary contact water.”

‐ “It is a marvelous place to find elk, bison, and even mastadon artifacts. To do this one must wade in the water and walk the creek, searching sand bars, mud banks, etc. My children and their friends do this regularly in the spring and after heavy rains. They are wading in the water with tennis shoes and shorts, getting completely wet most outings.”

‐ “While we paddle in canoes and kayaks, please be aware that we are always in the river as well as on it. “

‐ “Canoeing: I have certainly canoed at least a dozen times over the past few years, generally in June.” “Fishing: I have seen people fishing, mostly in June, July, and August, several times in the last three or four years. Even more, I have seen persons with fishing rods going down to the river as I bicycled along the bike path. There was a swing on the creek near the Fourth Street bridge a couple of years ago.”

‐ “Once a month I do water monitoring on the creek…Our family and friends also hunt on the land where the creek crosses and thru crossing the creek come into contact with the water as they wade across. This occurs in Oct thru Dec or each hunting season until the creek freezes and has occurred every year from the 1980’s until present. Trap stakes and chains have been observed on the creek many years at the bridges where someone has set the traps in the water for muskrat and mink – many times over the years during trapping season from approximately Oct – freeze…My children have waded and played in the creek over the years and my grand kids the same as well as various nieces, nephews and friends kids – many, many times over the years.”


‐ “I frequently wade fish (wet wading – no waders) portions”

DNR Response: Iowa Administrative Code (IAC), Part 567, Chapters 60 and 61 note applicable definitions and provisions regarding Iowa’s Water Quality Standards (WQS). The WQS establish specific use designations for water bodies that support, or are capable of supporting, primary and secondary contact recreation and children’s recreational activities, referred to as the group of Class A waters.

Key definitions from these Chapters include the following:

Waters designated as Primary contact recreational use (Class A1) are

“Waters in which recreational or other uses may result in prolonged and direct contact with the water, involving considerable risk of ingesting water in quantities sufficient to pose a health hazard. Such activities would include, but not limited to, swimming, diving, water skiing, and water contact recreational canoeing.” [567‐61.3(1)b(1)]

Waters designated as Secondary contact recreational use (Class A2) are

“Waters in which recreational or other uses may result in contact with the water that is either incidental or accidental. During the recreational use, the probability of ingesting appreciable quantities of water is minimal. Class A2 uses include fishing, commercial and recreational boating, any limited contact incidental to shoreline activities and activities in which users do not swim or float in the waterbody while on a boating activity.” [567‐61.3(1)b(2)]

In addition, 567‐60.2 further defines Primary contact as

“…any recreational or other water use in which there is direct human contact with the water involving considerable risk of ingestion of water or contact with sensitive body organs such as the eyes, ears, and nose, in quantities sufficient to pose a significant health hazard.”

Secondary contact is defined in Department rules (567‐60.2) as

“…any recreational or other water use in which contact with the water is either incidental or accidental and in which the probability of ingesting appreciable quantities of water is minimal, such as fishing, commercial and recreational boating and any limited contact


incidental to shoreline activities. This would include users who do not swim or float in the water body while on a boating activity.”

Water contact recreational canoeing is defined in Department rules (567‐60.2) as

“the type of activities associated with canoeing outings in which primary contact with the water does occur. This would include users who swim or float in the water body while on a canoeing outing.”

The department has attempted to be consistent with the historical intent of the WQS rules at the time of their adoption by the Environmental Protection Commission (EPC). In general, waters designated as Primary contact recreational use (Class A1), where swimming (i.e., full body immersion) is reasonably possible, are considered to be able to support activities that “may result in prolonged and direct contact with the water, involving considerable risk of ingesting water in quantities sufficient to pose a health hazard”. The definition further provides examples of what activities this includes such as “swimming, diving, water skiing, and water contact recreational canoeing”.

As the WQS rules were being created, the EPC decided that a distinction should be made between the activities of canoeing versus water contact recreational canoeing based on the understanding that some people who canoe do not want to get wet while others intend to get wet.

This distinction, when looked at in regard to use attainability, can pose real implementation issues. The department’s understanding upon assessing these waters is that Class A2 and its associated criteria ensure that water will be of a sanitary quality to protect the public if contact with the water is incidental and infrequent. Canoeing was originally considered an activity consistent with Class A2 as typically canoeing is deemed to not result in “considerable risk of ingesting water in quantities sufficient to pose a health hazard”. Class A2, secondary contact, is protective of that type of activity. In addition, EPA’s draft “Implementation Guidance for Ambient Water Quality Criteria for Bacteria” from May of 2002 defines secondary contact activities as

“those activities where most participants would have very little contact with the water and where ingestion of water is unlikely. Secondary contact activities may include wading, canoeing, motor boating, fishing, etc.”

However, through public comment, UA/UAA surveys, and miscellaneous research, the department understands that water contact recreational canoeing, where paddlers do intend to get wet and recreate in the water, can and does occur.


When making determinations as to existing or attainable uses of a water body, the department uses depth guidelines to help in determining whether or not a water body could support Class A1 uses (i.e., 1‐meter maximum or 0.5 meters maintained over 50% of the reach) to better address the issues regarding recreational activities. The concept here is that many Class A1 type activities require the presence of a significant amount of water to support those activities. The implementation of these depth guidelines also serve to address the issue of if canoeing and primary contact are possible as waters that possess enough flow or water present to support Class A1 typically are the waters deep enough for canoeing (e.g., the 1,300 stream/river miles verified as Class A1 in the original assessments). The EPA has approved this approach in other states.

The majority of stream‐specific comments received were tied to a small number of DNR’s original recommendations that did not meet our depth guidelines; this is one of the main causes of the controversy regarding use attainability analysis rulemaking efforts. However, if, through information provided by the public through the public comment process and through re‐evaluation of site data collected, we discover activities that are consistent with water contact recreational canoeing or common kids play despite the marginal flow conditions, then adjustments will be made to the original recommendations.

Issue: What characteristics define “child’s play” in Class A3, Children’s recreational use?

Public Comments

‐ “We are of the opinion that the word “park” is not a reason to designate “child at play”.

‐ “should be designated as A3 due to primary contact recreation by children. The primary contact by children occurs, on average, 2 times per week during the summer months (May‐September) and has been taking place since 1978.”

‐ “This area is used several times per week by children (during non‐winter ice free months) for fishing and wading (under the bridge). Activities include catching frogs, fishing, playing in the mud, and so forth. The area is a short walk from [town] and is often visited by older (i.e., non‐child) residents as well.” “…my son frequently meets his friends from town there for various activities. He was there last night with several friends fishing and catching amphibians.”


‐ “It is a marvelous place to find elk, bison, and even mastadon artifacts. To do this one must wade in the water and walk the creek, searching sand bars, mud banks, etc. My children and their friends do this regularly in the spring and after heavy rains. They are wading in the water with tennis shoes and shorts, getting completely wet most outings.”

‐ “I have seen kids playing in the creek numerous times near the intersection of Stange Road and 13th Street, near the apartments. Wading, splashing, chasing tadpoles. Mostly in the summer; certainly last summer (2009) and the year before (2008).

‐ “We have nieces and nephews who like to play in and around the creek while helping in the fields and exploring the property. They like to dig in the banks and creek, looking for ‘treasures’ as well as helping adults to remove trees that have fallen into the creek. The kids have also tried fishing on several occasions.”

‐ “We use this creek for child’s play during our 10 week summer camp program.”

‐ “We have taken our nephews and other children, who also wade, swim, and skip stones.”

DNR Response: Iowa Administrative Code (IAC), Part 567, Chapter 61 notes applicable definitions and provisions regarding Iowa’s Water Quality Standards (WQS). The WQS establish specific use designations for water bodies that support, or are capable of supporting, children’s recreational activities.

A key definition from this Chapter includes the following:

Waters designated as Children’s recreational use (Class A3) are

“Waters in which recreational uses by children are common. Class A3 waters are water bodies having definite banks and bed with visible evidence of the flow or occurrence of water. This type of use would primarily occur in urban or residential areas.” [567‐61.3(1)b(3)]

Many Class A3 designations proposed came about because child’s play was actually witnessed to occur during the actual assessment or local residents and officials with direct knowledge of these areas have observed these actions occurring at a frequency considered to be common.

With that being said, in the absence of actually witnessing these activities, the department is still left to address attainable uses. Stream designations are not based solely on children being present, but also on if this use could be reasonably achieved. If the conditions around the creek are such that children could find a way to access the


creek, this has to be factored in. A children’s recreational use is not based solely on the presence of a park, but also based on morphological features as well as proximity to urban or residential areas where children might be drawn to play. The presence of debris, fallen trees, and beaver dams may be a magnet to children as opposed to a deterrent. Children can find ways to access creeks that many adults would not attempt.

Issue: Class A2 criteria is not protective of public health

Public comments

‐ “This stream is used for recreation and children’s play with direct contact to the water taking place, and should not be downgraded.”

‐ “What would a downgrade mean for the stream?”

‐ “I encourage the DNR to keep the highest recreational use protections on all 408 streams under consideration for revision. Iowa’s waters are dirty enough already and need the greatest protection possible to keep them as clean as possible.”

‐ “…it is well‐known in the local area to have very high e‐coli contamination. No responsible parent would allow their child to play in this stream in its current condition.”

‐ “it is extremely important to me that we continue to make progress towards safe waterways for full body contact recreational use. Our natural resources are vital to our persistence and happiness, and cannot be misused.”

‐ “Most of the time the water quality…LOOKS OK, but sampling reveals it is full of the usual contaminants found in this kind of a watershed.”

‐ “is being considered for A2 designation, which provides less protection than it currently has”

‐ “Should we just post a big AT YOUR OWN RISK sign at the borders of the state, and say “Head for the movies, folks, because frankly in spite of what you’ve heard about summer recreational opportunities, most of Iowa’s water is polluted and intends to stay that way. Don’t live here if you like the outdoors. Don’t move here, unless you want your kids to end up in emergency room with a pathogen, or you yourself under government surveillance for cancer.”


‐ “The lowering of environmental and health standards…would enhance the potential risk towards our youth and greatly impact the effectiveness of our program.”

DNR Response: Many of these comments suggest that classifying a stream A2 versus A1 means people will no longer be protected when exposed to the water or that if they are classified A1, these streams will be viewed as pristine. These types of comments are often related to the perceptions surrounding exposure to E. coli and the differing E. coli bacterial criteria for A1 (primary contact recreational use) and A3 (children’s recreational use) streams versus A2 (secondary contact streams). These criteria are provided below:

Table 1

Use Geometric Mean (cfu/100mL)

Sample Maximum (cfu/100mL)

Class A1 126 235

Class A2 630 2880

Class A3 126 235

It is noted the geometric mean criterion for Class A2 waters is five times the Class A1 and Class A3 criteria and the sample maximum criterion is 12.25 times the Class A1 and Class A3 criteria.

These water quality criteria were adopted by the Environmental Protection Commission on May 19, 2003, and were approved by the EPA on June 16, 2004. There was considerable public input and discussion when the Commission adopted these criteria and this rule making action is not proposing to change these criteria. In adopting these criteria, the Commission recognized the pathogenic risk associated with aquatic recreation is dependent not only on the level of pathogens (which include viruses and parasites in addition to some strains of bacteria) present but also on the mode of exposure. Class A1 waters are those waters for which there is “prolonged and direct contact with the water, involving considerable risk of ingesting water in quantities sufficient to pose a health hazard. [567‐61.3(1)b(1)]. Typical activities associated with a Class A1 use include swimming, diving, water skiing, and water contact recreational canoeing. Class A2 waters, on the other hand, are those waters where contact is either incidental or accidental and “the probability of ingesting appreciable quantities of water


is minimal.” [567‐61.3(1)b(2)]. In approving these criteria, the Commission and the EPA have determined the criteria will, in fact, be protective of these uses.

The heart of the matter being considered in this rule making effort is whether a water body can be used for uses typical of the Class A1 use designation or if factors such as flow characteristics limit its uses to those associated with the A2 classification. Or, in some cases, whether any of the Class A1, A2 or A3 uses are physically possible. Therefore, the comments provided regarding the appropriateness of the Class A2 bacteria criteria versus the Class A1 and A3 criteria are not directly relevant to the proposed action as the Commission has already decided this matter. However, given the considerable public interest in this matter, it is appropriate to recap the rationale behind these bacteria criteria.

The transmission of disease via water contaminated with feces from warm‐blooded animals and humans is well documented. Feces contain a variety of microbes, many of which are either beneficial or cause no particular problem. Some estimates are that a human may have upwards of a trillion bacteria within their body at any given time, with most residing within the intestinal tract. Some of these fecal microbes, however, may be pathogenic and feces from infected persons and animals will contain some amount of the pathogenic microbes. These include some strains of bacteria, viruses and parasites such as Cryptosporidium parvem and Giardia lamblia. Consumption of water contaminated with pathogenic microbes is the most direct route of infection although infection through contact with mucous membranes and open wounds is also possible. Because these pathogenic microbes differ considerably in their characteristics and humans have differing levels of immunity and resistance, it is very difficult to determine a “safe” level for drinking water given that a person might consume over several liters per day. This is why public drinking water standards are intended to provide a zero risk by insuring drinking water contains no pathogenic microbes.

People swimming in marine and fresh waters can also be exposed to fecal pathogens either by incidentally swallowing the water or by dermal contact. It is important to understand that all natural water bodies will contain some amount of fecal contamination, especially after runoff events. Another example is that wild animals walk through these creeks all the time, and therefore can introduce bacteria into the streams. Even people swimming and children’s play can contribute bacteria and pathogens into the water. Attaining a zero risk of infection is not possible in these natural water bodies; the question is what level of contamination presents an unacceptable level of risk to people who swim or recreate in those waters.


Due to the varied nature of the pathogenic microbes associated with fecal contamination, directly analyzing water for pathogenic microbes and establishing dose‐response relationship with each pathogen is not possible. Instead, researchers have typically used an indicator organism, such as fecal coliform bacteria, in an attempt to characterize the level of fecal contamination in water and to correlate the level of indicator organisms with the incidence of disease associated with swimming or recreating in contaminated water.

The ideal indicator organism would be:

• non‐pathogenic (minimizing risk to analysts);

• easily detected by simple laboratory tests in a very short time consistent with accurate results;

• indicative of the relative degree of fecal contamination;

• be pathogenically representative of all the potential pathogens that might be present; and

• have survival times equal to or that exceed other pathogenic microbes. Scientists have not found the ideal indicator organism. A number of studies as documented in the EPA’s guidance documents as well as other sources such as the European Union Directive have looked at a variety of indicator organisms such as total coliforms, fecal coliforms, E. coli, streptococci, and enterococci, as these are all groups of relatively non‐pathogenic bacteria that are present in the gut of humans and warm blooded animals. At one time, the EPA recommended the use of fecal coliforms as a measure of pathogenic risk but now recommends E. coli or enterococci. However, these recommendations are now under review once again because of significant issues that have been raised regarding the efficacy of these indicator organisms as a measure of pathogenic risk.

Numerous epidemiological studies have been conducted over the years that attempted to correlate the level of indicator organisms present in the water with the incidence of disease, primarily enteric diseases such as diarrhea. These studies have been reviewed in such documents as the EPA’s 1986 Water Quality Criteria for Bacteria document and a later, as yet not finalized, implementation guidance document. Most of these studies were conducted at swimming beaches in marine waters with only a few being conducted at fresh water beaches such as the Great Lakes. In general, the studies found that the incidence of sickness increased with increasing levels of pollution, but establishing clear relationships as to what constitutes an acceptable level of fecal pollution and how to accurately measure the pathogenic risk has remained elusive.


The EPA has acknowledged that while the epidemiological data for swimming in freshwater lakes is very limited, there is essentially no such reliable information for freshwater streams, especially for secondary contact recreation like fishing or wading. The European Union has determined that one of the largest sources of human pathogens at a swimming beach originate from other bathers (fecal shedding) and, therefore, the epidemiological studies for those waters are not directly applicable to waters where human contact is limited and incidental. For that and other reasons the EU is only recommending a criterion of 1000 cfu’s for actual bathing waters (i.e., public beaches).

The EPA recognized the difficulty in establishing secondary contact criteria in their 1986 criteria document:

“Because of the different exposure scenarios and the different exposure routes that are likely to occur under the two different types of uses, EPA is unable to derive a national criterion for secondary contact recreation based upon existing data.”

The Commission‐adopted bacteria criteria to closely follow the recommendations in the EPA’s 1986 criteria document, which has not been updated or modified to date despite considerable discussion and controversy. The bacteria recommendations for secondary contact recreation in that 1986 document were based purely on “professional judgment” with relatively little rationale being provided to support that judgment nor was there epidemiological evidence to support those criteria.

It might also be useful to put these criteria in perspective. The “raw” sewage entering a domestic sewage treatment plant can have fecal coliform concentrations in the millions of colony‐forming units per 100 milliliters of water. Levels in the tens or even hundreds of thousands are sometimes measured in streams where the only potential source of pathogens is wildlife. The adopted criteria for A1, A2 and A3 are extremely low in comparison and may not be reasonably attainable under any circumstances in natural waters like streams and rivers unless all wildlife, pets and livestock are eliminated from the watershed.


In summary:

• The EPA was unable to derive a national criterion for secondary contact recreation given the fact that no epidemiological studies for incidental contact for running water or even lakes have been conducted.

• The Class A2 criterion is different than Class A1 and is due largely to EPA’s “professional judgment” which has little factual basis in the way of epidemiological support.

• The 2006 European Union Directive recommends an E. coli criterion of 1,000 cfu’s for “good” waters that are used for bathing; there are no recommendations for secondary contact type uses.

• In rural settings where the frequency of full body immersion is infrequent and not shared extensively with other bathers the criteria established to protect Class A2 Secondary Contact Recreational Use is quite likely to be very over protective of health. In natural waters, there will always be some level of risk from a variety of pathogenic microbes as well as other factors.

• The EPA is currently reevaluating bacteria criteria due to the scientific defensibility and implementation of existing 1986 criteria. EPA recognizes all previous epidemiological studies have been conducted at lake beaches and that lake environments can and do differ significantly from flowing waters. Therefore, EPA is currently evaluating different criteria/implementation methods for flowing waters.

• There is concern that non‐disinfected discharges from wastewater treatment plants will be allowed and encouraged by the proposed rule. That is simply not the case. Non‐disinfected wastewater typically contains hundreds of thousands if not millions of bacteria per 100 mL. The Class A2 designation (630 cfu/100 mL) would still force disinfection of proposed wastewater discharges prior to discharge.


Issue: Existing Uses

Public Comments

Direct public comments were not received relating to this issue. However, this section was still included as an excerpt from previous summaries for educational purposes.

DNR Response: The code of federal regulations defines existing uses as “those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards” (CFR 131.3(e)).

At first blush, the question “What is an Existing Use?” seems straightforward and easy to answer. Outside of the regulatory context, one might be inclined to equate the question with “Did a use actually occur?” If yes, then the use is an “existing use.” But the regulation does not define existing uses as “those uses that actually occurred in a water body on or after November 28, 1975.” Instead, the regulation uses the language “actually attained.” When considered in the context of federal water quality standards regulations, there is a distinct difference between “actually occurred” and “actually attained.”

Section 131.2 of the federal water quality standards regulations explains the purpose of water quality standards.

A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses. States adopt water quality standards to protect the public health or welfare, enhance the quality of water and serve the purposes of the Clean Water Act (the Act). “Serve the purposes of the Act” (as defined in sections 101(a)(2) and 303(c) of the Act) means that water quality standards should, wherever attainable, provide water quality for the protection and propagation of fish, shellfish and wildlife and for recreation in and on the water and take into consideration their use and value of public water supplies, propagation of fish, shellfish, and wildlife, recreation in an on the water, and agricultural, industrial, and other purposes including navigation.

Such standards serve the dual purposes of establishing the water quality goals for a specific water body and serve as the regulatory basis for the establishment of water‐quality‐based treatment controls and strategies beyond the technology‐based levels of treatment requires by sections 301(b) and 306 of the Act. (40 CFR § 131.2 (emphasis added).)


In other words, uses are designated not because the uses actually are occurring in a water body, but because the uses reflect a water quality goal to be attained for a particular water body consistent with the purposes of the Clean Water Act. At the time a particular use is designated by a state, that use might not be occurring and the water quality to protect and support that use may not yet be attained. Protective water quality is attained through the “establishment of water‐quality‐based treatment controls and strategies” designed to meet the water quality standards criteria for specific pollutants. Federal regulations recognize, however, that even after a state designates a particular use for a water body, attaining the water quality to support that use may not be feasible. Therefore, the regulations allow a state to remove a designated use if the state “can demonstrate that attaining the designated use is not feasible” because of one or more factors outlined in the regulation described at 40 CFR § 131.10 (g). The state makes this demonstration through a use attainability analysis (40 CFR § 131.10(j)(2)). However, this option is available only if attaining water quality to protect a use is not feasible. Once the water quality goal to protect a use, whether designated by a state or not, has been attained, the water quality standards regulations ensure that that level of water quality is maintained, first through an “antidegradation policy,” see 40 CFR § 131.12, and second, through the concept of “existing use” (see 40 CFR § 131.10 (g) and (h)). When considered within this context, the meaning of the term “actually attained” in the existing use definition seems clear. “Actually attained” refers to the attainment of the water quality necessary to support a particular use, whether or not that use actually has occurred in the water body. It would be inconsistent with the purposes of the Clean Water Act to allow degradation of water quality once it has been attained on or after November 28, 1975. Conversely, if the water quality necessary to protect a particular use has not been attained on or after November 28, 1975, then that use is not an existing use. This interpretation of the existing use regulation is supported by and consistent with relevant EPA guidance documents, federal law and other EPA materials, as shown below.

EPA Guidance Documents and Relevant Materials on Existing Use Unfortunately, a clear and comprehensive analysis of the recreational existing use issue is not included in early EPA Guidance Documents on water quality standards review.


The reason for this may be that most EPA guidance on conducting a UAA has addressed the aquatic life designated use. If water quality is not sufficient to protect aquatic life, then aquatic life will not be present, and therefore the issue of existing use does not arise. The recreational designated use poses a different situation. People may choose to recreate in a water body even if it has not attained the water quality necessary to support the recreational use. Nevertheless, even though the term “actually attained” is not defined and the process for determining whether a use has actually been attained has not been explicitly specified, EPA guidance documents and other relevant materials support a water quality‐based interpretation.

Likewise, in 1998, EPA issued an Advanced Notice of Proposed Rulemaking seeking comments from interested parties on possible revisions to the Water Quality Standard regulations. See Advanced Notice of Proposed Rule Making (ANPRM) to amend the national WQS regulations, 63 Fed. Reg. 36741‐36806 (July 7, 1998). In the notice, EPA provided background information on “uses,” and stated that “[d]esignated uses focus on the attainable condition while existing uses focus on the past or present condition. Section 131.10 then links these two broad use categories in a manner which intends to ensure that States and Tribes designate appropriate water uses, reflecting both the existing and attainable uses of each water body. For this discussion it is important to consider both the distinction between and the linkage of designated and existing uses.” 63 Fed. Reg. at p. 36748 (emphasis added). It seems clear that the “condition” to which EPA refers is water quality and “existing” implies that the water quality standards are already attained – in contrast to attainable for a designated use. EPA also provided specific information about making an existing use determination:

In making an existing use determination, there is a link between the use and water quality. To be considered an existing use, the use must have been actually attained in the past, is now attained or water quality is sufficient to support the use. However, for some sites, water quality, alone, may be an insufficient basis for making an existing use finding if there are other factors that would prohibit the use from taking place regardless of the quality of the water at a site. (63 Fed. Reg. at p. 36753.)

This makes clear that water quality is the threshold issue in making an existing use determination, but other factors can preclude water quality, such as lack or absence of


flow, that would prohibit the use from taking place regardless of the quality of the water. EPA expanded upon this in the context of determining a recreational existing use. According to EPA, a recreational use is not an existing use when the water body is not suitable for swimming because the water quality and physical characteristics do not support that use.

Obviously, any decision about whether or not a use is an “existing use” must be a water body–specific determination. The existing use determination is, therefore, site‐specific, and decisions should consider water quality and other limiting factors such as the physical habitat specific to a particular water body. A few examples may help illustrate the issue. A somewhat common existing use question applies to primary contact recreation: if a few people on a few occasions ‘swim’ in a water body that does not have the quality or physical characteristics to support swimming, is this an existing use, even if the water body is posted ‘no swimming’ due to bacterial contamination and lacks the physical features to actually support swimming? The straightforward answer to this question is that ‘swimming’ is not an existing use because the present (or past) condition does not support that use. This conclusion is based on the very limited actual ‘use’ and, more importantly, the lack of suitable water quality and physical characteristics that would support a recreational swimming use now or in the future (as determined by the water quality requirements and recreational swimming considerations, including safety considerations, in the State or Tribal classification system for primary contact recreation).

A question has been raised as to how to interpret the regulation in the context of this example. One could determine that because the water body is not suitable for swimming, and has not been since 1975, primary contact recreation is not an existing use. Alternatively, one could determine primary contact recreation to be an existing use because the water body was actually used for swimming, even though the use was occasional and water quality and physical characteristics were not acceptable to support such a use. EPA believes the first alternative is the better interpretation of Agency regulations and guidance in this example, because the use is not established and the water quality and other factors would appear to prohibit actually attaining a recreational swimming use. 63 Fed. Reg. at pp. 36752‐53 (emphasis added).


The department conducted the stream use assessments in a fashion that determined whether or not Class A1 or swimming was possible for specific water bodies, regardless of the water quality condition in that water body. This was felt to be a conservative approach as it did not preclude the assignment of recreational uses to waters where the quality may not be supportive of any Class A use and potentially never will.

Issue: Stream flow fluctuation during the recreation season

Public Comments

‐ Many streams have varying amounts of flow throughout the spring and summer, and for this stream, as for many, people will take advantage of the water levels that exist.

DNR Response: DNR’s “Recreational Use Assessment and Attainability Analysis Protocol” describes base flow conditions as follows:

Base Flow Conditions – Use Assessment and UAA field surveys are only “snapshots” of observations when conducted in accordance with this protocol. To acquire the best results from a single field survey, the survey for Use Assessments and UAAs should be conducted during base flow periods. Base flow is that portion of a stream’s flow contributed by sources of water other than precipitation runoff. This refers to a fair weather flow sustained primarily by springs or groundwater seepage, wastewater discharges, irrigation return flows, releases from reservoirs, or some combination of these.

Even though flows vary throughout the recreational season, the department will continue to conduct recreational use assessments throughout the recreational season (March 15th to November 15th, as defined in Iowa Water Quality Standards) as long as the conditions are felt to provide for an accurate and adequate assessment of the data needed to make a use determination. Data gathered near either end of the recreational use season can reflect accurate recreational use conditions. These periods of “leaf off” conditions are times when the field staff tend to find the most evidence of use. The areas are not overgrown with vegetation and stream flows can be low. In the winters 2005 and 2006, there was not much in the way of high flows during the winter so a lot of the evidence of use remains along the stream banks and stream beds. It should also be noted that evidence of use is not necessarily the primary driver for use determinations, nor is having to be present at


times when recreation is most likely to occur (i.e., July – September). The department is working to answer the question: “is Primary Contact Recreation possible here?” and if the flow and water is present in amounts to reasonably support that activity then the question can be answered relatively easily without having to be present at times when recreation is most likely to occur. The “fishable/swimmable” presumption applies to all perennial streams listed on the USGS 1:100,000 scale DLG data set and intermittent streams with perennial pools. Neither USGS nor any other group provides a coverage of intermittent streams with perennial pools. When an intermittent stream is observed on the map, the question of whether or not the presumption applies is an important question. The department has interpreted this to mean that it is unknown if an intermittent stream on a map falls under the rebuttable presumption until the stream in question is verified to be intermittent by a use assessment or UAA. If an intermittent stream according to USGS is visited during summer base flow conditions and is supporting aquatic life and appears to be perennial, then the department considers that stream to fall under the rebuttable presumption provisions and a UAA is needed. If the department verifies that the stream is truly intermittent then the presumption does not apply and a use assessment is written and rule‐making is not required as the presumption did not apply.

Issue: Have you done an economic impact study on [the effects of revising stream designations]?

Public Comments

‐ We are a very small village with only 62 users and little possibility of expansion as there is no building going on within the Districts borders. SSAB uses our system for their human wastewater. That arrangement is mutually beneficial to both parties. Without SSAB, the village would not be able to afford the cost of running the system.

‐ What would be the impact … to a public waste water facility to maintain the criteria? Are any other limits going to [be] adjusted to conform to the stream assessments? Will this require public waste water facilities to adjust permits with industry? And how long will the public wastewater facilities have to comply with the standard once it has been approved by EPA?

DNR Response: Yes, the department completed an economic impact study on the proposed stream designation changes. This economic impact study can be viewed at http://dnrdev.iowa.gov/water/files/batch3_fis.pdf.


The department understands that as a result of these Clean Water Act‐mandated stream designation revisions, municipal and industrial regulated facilities (point sources, i.e. community or municipal wastewater treatment plants, industrial process plants like meat packers, or metal finishers) may face significant upgrades to the current wastewater treatment plants. These upgrades could include disinfection and/or ammonia removal systems. The department has estimated that once these protections are in place, the associated fiscal impact could be up to $750 to $960 million statewide for affected communities and industries.

There are different options available to assist facilities faced with upgrade requirements. There are potential sources of financial assistance in the form of the State Revolving Fund (state-administered, low-interest loan program) or Community Development Block Grants. You also have the option to try and demonstrate widespread social and environmental impact from the upgrade requirements.

Issue: Are any other limits that will have to be adjusted to conform to the stream assessments?

Public Comments


DNR Response: The Water Quality‐Based Effluent Limitations (WQBELs) included in an NPDES permit are dependent on the designated uses of the stream receiving the discharge. Therefore, any or all of the WQBELs (i.e. ammonia nitrogen, E. coli, dissolved oxygen, metals, etc.) may need to be adjusted to conform to the results of the stream assessments. Depending on the specific scenario, the facility may be required to provide additional treatment capabilities.


Issue: Will this require public waste water facilities to adjust permits with industry?

Public Comments


DNR Response: A wastewater treatment facility that serves a significant industrial user may need to adjust the limitations applied to a given industrial user in order for the wastewater treatment facility to comply with more stringent permit limitations. The city could also opt to provide additional treatment capability in order to continue receiving the same loadings from the industrial user. If the facility could comply with more stringent limitations while continuing to accept the loadings from the industrial user, then adjusting the industrial users’ limitations or increasing treatment capacity may not be necessary.

Issue: How long will the public wastewater facilities have to comply with the standard once it has been approved by EPA?

Public Comments


DNR Response: For point source dischargers, the water quality standards are implemented through the NPDES permitting program. The new standards are expected to be implemented at the time an NPDES permit is issued. The NPDES permit could, if necessary, contain a compliance schedule allowing time for a public wastewater treatment facility to comply with the new or more stringent water quality‐based effluent limitations. The compliance schedule must result in compliance as soon as possible. The timeframe necessary to comply should consider time for design, permitting, funding, and construction, which can be in years.


EPA Comments


1) Depth data indicate the Class A1 primary contact recreational use is an attainable use

A preliminary examination of the State’s current NOIA for use designations shows that, in some instances, IDNR proposes to designate only isolated pools within a stream reach for primary contact recreational uses, removing the primary contact use for the rest of the stream segment without data from within the new segment to support the use change. IDNR then assigns a secondary contact recreational use to these water bodies. When data collected at the endpoint of a segment shows that the measured depths meet Iowa’s guidelines and therefore are adequate for primary contact recreation, the adjoining segments must be assigned the primary contact recreational use designation as a continuum of the use unless other supporting data within the segment rebuts the presumption.

Each recommended use change must be supported by sufficient data and information to demonstrate that the fishable and/or swimmable use [CWA Section 101(a)] is not attainable, consistent with the factors in the federal regulations at 40 CFR § 131.10(g). Further, 40 CFR 131.10(b) requires the State to take into consideration the WQS of downstream waters and to ensure that its WQS provide for the attainment and maintenance of the WQS of downstream waters. Without sufficient data, EPA must rely on the presumption contained in its regulations that the CWA Section 101(a) uses are attainable.

Bear Creek (Dallas County), a waterbody from the current NOIA, provides a good example of this situation. IDNR re‐segmented the stream, recommending several different recreational uses, based on three site visits. The stream reach is approximately five miles long. Figure 1 shows the locations of IDNR’s assessment sites at two bridge crossings and one private property access point. At site 687‐a, IDNR measured an average depth of 40 inches and a maximum depth exceeding 48 inches. IDNR, considering the depth data, designates a Class A1 primary contact recreational use for the pooled area at site 687‐a. However, IDNR then designates a Class A2 secondary contact recreational use for the segment running from site 687‐a to the Raccoon River. No measured assessment data from within this segment was supplied by IDNR to support this Class A2 use designation.


DNR Response:

The Iowa Department of Natural Resources followed its Recreational Use Assessment and Attainability Analysis Protocol (Rec Use Protocol), dated March 19, 2008, for determining classifications in this batch.

The department added the following guidance to the Rec Use Protocol based issues raised by EPA in 2007. The Rec Use Protocol was submitted to EPA on multiple occasions for review:

“Isolated pools are occasionally found in rivers and streams. These isolated pools should be evaluated on a case‐by‐case basis. Factors considered to determine the applicability of this factor for a specific pool may include, but are not limited to:

• the overall size of the pool • the prevalence of the depth through the pool • hazards contained within or surrounding the pool (e.g., as logjams,

riprap, rebar, swift current, or other hazardous conditions), • evidence of existing use (e.g., landowner interview information revealing

if it has ever been used for swimming), • permanence of the pool (i.e. is the pool temporary such as a beaver dam

or log jam pool that may only last until the next large rain event), • whether low flow conditions that are associated with a depth that is not

conducive to swimming predominate.”

During the field surveys and the analysis of them after, the department performs site‐specific characterizations as per the approved Rec Use Protocol. This information is presented in our Use Assessment/Use Attainability Analyses (UA/UAAs). These deeper depth areas are thoroughly considered as part of our program’s well‐documented procedural requirements. If you have a stream that is only a few inches in depth for much of its run, and then you run into a limited pool carved by an outfall from behind a dam, for example, consideration of its size, prevalence of the depth throughout the pool and stream, as well as access to the pooled area, seem appropriate factors to consider classifying the stream for Secondary Contact recreational uses. Other factors that may be considered when evaluating deeper or pooled areas include non‐remedial, human‐caused conditions; hydrologic modifications; and natural physical features.


Regarding the Bear Creek (Dallas County) example, field observation of stream topography and review of multiple sources and years of aerial photographs of the stream clearly demonstrate the depth characteristic found at that site did not persist the entire length of the creek to the mouth. The assessor applied decades of professional expertise in both stream dynamics and aerial photography to make the recommendation. The observed water features along with multiple sources (and years) of aerial photographs clearly demonstrate the depth characteristic found at that site did not persist the entire length to the mouth.

2) Public comment indicates that a higher recreational use is an attainable use

EPA’s November 24, 2009, action letter also explained our Agency’s evaluation of public comments, interview and survey results, photographic evidence, and surrounding land uses as provided with the UAAs. Many public comments and/or testimony described various types of recreation occurring in some of these streams including swimming, wading, tubing, and child’s play. Information in some UAAs showed a potential for recreational uses by virtue of the stream’s proximity to residential or recreational areas, a situation cited in IDNR’s Protocol. EPA is required by federal regulation to consider relevant public comment and testimony when evaluating a designated use change.

Many public comments were considered insufficient by the State because the specific location and/or frequency of the recreational activity were not provided in the comment. Public comments asserting that recreation is taking place should be fully considered before removing a recreational use. Consideration of public comment includes follow‐up with the commenter and/or a justification for removing the recreational use.

DNR Response:

The department thoroughly analyzed public comments and surveys to the best of our ability given the timeframes provided by the Administrative Procedures Act. The department has analyzed all the surveys that were received for streams in the Notice of Intended Action (NOIA).

The NOIA requested specific information be supplied and stated the following:

“If comments submitted are intended to describe recreational activities that occur on specific stream segments, the comment must specify: 1) the type of


water recreational activity(s) (e.g. canoeing, children’s play, minnow seining, etc.); 2) where the activity(s) took place (e.g. bridge crossing, park, etc.) using Section/Township/Range, latitude/longitude, or map; and 3) the frequency the activity(s) occurred and when (e.g. 1/month in the summer of 2002).”

The department made attempts where possible to contact people who did not provide this information, but feels the necessary information was clearly stated.

The department’s approach has been to use a reasonable, practical, common sense approach to analyzing the public comments. The public comments and/or surveys received came in varying forms of completion: Some surveys were incomplete, some were not specific to an exact location, some did not provide frequency of use, some were completely blank, and some provided exact detail of activities, locations, and frequency with pictures. The department analyzed all of these comments made adjustments to UAAs based on these comments in relationship to what the department found in the field and the UAA recommendation provided for in the NOIA.

The Notice of Intended Action (NOIA) for this third batch also required specific information as shown below:

“If comments submitted are intended to describe recreational activities that occur on specific stream segments, the comment must specify: 1) the type of water recreational activity(s) (e.g. canoeing, children’s play, minnow seining, etc.); 2) where the activity(s) took place (e.g. bridge crossing, park, etc.) using Section/Township/Range, latitude/longitude, or map; and 3) the frequency the activity(s) occurred and when (e.g. 1/month in the summer of 2002).”

Where possible, commenters that did not provide specific information were called for additional information.

The department feels we have fully considered and made the most appropriate judgment for public comments based on the information available and applied it within the context of our previously‐approved Recreational Use Assessment and Attainability Analysis Protocol, dated March 19, 2008.


3) Recommendations to remove the Class A1 use is not supported by data or the data was not submitted to EPA

As explained in comment #1 above, and provided in EPA’s November 24, 2009, action letter, recommendations to remove the Class A1 use cannot be approved if the UAA data and supporting information is not submitted to EPA.

For example, the SWC Document dated June 11, 2008, later revised on May 18, 2009, identifies Sugar Creek in the Skunk River Basin, Lee County, as segment number 6. This segment was assigned a Class A2 recreational use, but no data was submitted by IDNR to support removing the Class A1 recreational use.

DNR Response:

The department has made every effort to provide all information available used in our determinations. Many EPA comments are provided as general comments meant to apply broadly to sites that required site‐specific judgments. The DNR needs to have detailed written justifications on specific stream segments so we can understand the questions.

4) Recommendation to remove the Class A1 use rely on data collected during various stages of drought, or depth data is discounted due to perceived “elevated flow”

Many water bodies assessed by IDNR were, according to the U.S. Drought Monitor (http://drought.unl.edu/dm), in areas that were under the influence of moderate to severe drought. The drought status is important because IDNR’s assessment of recreational attainability is based upon flow and depth, parameters which can be directly affected by drought. Drought‐affected waters may not be sufficiently representative of normal conditions; assessments conducted on these streams may not be scientifically defensible. The WQS submittals must include any and all water body‐specific data gathered to support representative flow determinations for water bodies surveyed in areas affected by moderate and higher levels of drought.

In several UAAs, depth data meeting Iowa’s depth guidelines is adjusted by the field teams with an assertion that the waterbody is exhibiting “elevated flow.” This elevated flow is usually attributed to previous precipitation events; corroborating data must be included to support these determinations.


DNR Response:

In the department’s Recreational Use Assessment and Attainability Analysis protocol, we specify first of all that the assessment be conducted during base flow conditions. Base flow is defined as “that portion of a stream’s flow contributed by sources of water other than precipitation runoff.” In addition, “This refers to a fair weather flow sustained primarily by springs or groundwater seepage, wastewater discharges, irrigation return flows, releases from reservoirs, or some combination of these.”

As preparation for the Recreational Use Assessment and UAA Field Surveys, in our protocols we specify materials that are available for consideration in helping to determine if base flow conditions are prevalent. Page 17 of our recreational protocol document identifies some potential sources of information for evaluating flow conditions, including looking at stream survey data, maps of the watershed, daily stream flow records, local universities, IDNR regional offices, IDNR Geological Survey, United States Fish & Wildlife Service, U.S. Army Corps of Engineers, IOWATER, Local municipalities, etc.

In the department’s experience, the Drought Monitor referenced above can provide a good regional indication of conditions that might be occurring, but does not necessarily reflect specific stream conditions. Our review of some sites have found that in areas identified as D1 or higher on the Drought Monitor, actual stream flows were not impacted. This is supported by the Drought Monitor’s own disclaimer on their website:

This Does Not Replace Local Information The Drought Monitor is intended to provide a general and up‐to‐date summary of current drought conditions across the 50 states, Puerto Rico, and the Pacific possessions. This national product is designed to provide the "big picture" so the general public, media, government officials, and others can see what is happening around the country. To keep the map from becoming too complex, the drought categories shown represent typical drought intensities, not every drought intensity, within the area. The map is not designed to depict local conditions or to replace drought warnings and watches issued by local or regional government entities. Local or state entities may be monitoring different indicators than those used in the Drought Monitor to meet specific needs or to address local problems. As a consequence, there could be water shortages or crop failures within an area not designated as drought, just as there could be locations with adequate water supplies in an area designated as D3 or D4 (extreme or exceptional) drought.


However, in an attempt to address the EPA’s concerns, the department compared the closest stream gauge values for streams in the rulemaking. The results are summarized below:

Drought Issues

The department recorded the assessed dates for all segments that required rulemaking. Then, each of those dates was reviewed on the Drought Monitor website to determine if it was predicted to be in a drought situation as D1 or higher (this action identified 78 segments requiring additional review). For those segments, the department looked at the USGS website for the nearest stream gauge and recorded the cubic feet per second (cfs) on the assessed date(s) and the cfs for the 25th percentile of all data collected for that site. We consider the 25th percentile to be our typical “summer base flow” (this reduced the number down to 22 segments). Of those remaining segments, the department looked into all of the assessed dates to determine which segments had sites assessed outside of drought conditions (this brought the total down to ten (10) segments ‐ highlighted in orange on the spreadsheet in Appendix 2.

To summarize this:

• 78 segments are associated with Drought o 56 segments: Closest stream gauge shows flow above the 25th

percentile. This data should justify that the segment was analyzed at a “normal flow condition”.

o 22 segments: Closest stream gauge shows flow below the 25th percentile. This group will be further reviewed to determine if there was any field work that occurred on a separate date that was not drought affected. 12 segments: Had sites assessed during normal flow conditions

(according to the Drought Monitor) that exhibited comparable data to justify the designations.

The remaining ten (10) segments were then looked at more closely:


DROUGHT SEGMENTS

Name Avg Depth (in) Max Depth (in) Actual CFS 25th

Percentile

Cavitt Creek (Warren) 10 to 13 15 6.5/12 22

Cavitt Creek (Warren) 4 to 8 10 6.5/12 22

East Fork Crooked Creek (Henry/Washington Co.) 3.5 to 15 32 433/1.8/9 28

East Fork Crooked Creek (Henry/Washington Co.) 4 to 9 13 433/1.8/9 28

McGruder Creek (Decatur Co.) 3 to 10 12 19 24

Rhine Creek (Johnson Co.) 0 to 6 11.5 1.1 na

Unnamed Creek (City of Breda) 1 to 13 32 37 40

Unnamed Creek (City of Hartford) 1 to 2 4 4.3/4.2 8

Unnamed Creek (DNR Lake of Three Fires) 2 to 7 14 1.1 1.3

West Nodaway River (Cass/Montgomery Co.) 4 to 11 41 ‐ Beaver

Dam 76/78 78

Based on a review of this stream information, the department does not feel there is a statistical deviation significant enough to demonstrate drought is impacting the flows of these streams. We are not proposing changes to these streams.

Elevated Flow Issues The department reviewed all the UAAs for Batch 3 and noted any that stated elevated flows in the write up (131 segments). Only those with adequate depths for A1 but where the department still recommended A2 based on the elevated flow argument were further researched (30 segments). The department then went to the USGS website and located the nearest stream gauge and recorded the cubic feet per second (cfs) for the assessed date(s) along with the cfs for the 50th percentile of all data collected for that site. The


department considered anything over the 50th percentile to be higher than summer base flows and subtracting depth based on field observations to be appropriate (this brought it down to five [5] segments). The department then looked at the National Weather Service Precipitation Analysis and recorded area rainfall for the week prior to the assessment for segments that had flows below the 50th percentile. After evaluating all the information, there are two (2) segments in the spreadsheet (highlighted in blue – see Appendix 2) that the department justifies as A2 based on the rainfall amounts alone. Most segments either have beaver dams, fall in the >50th percentile category, or were already designated as an A1 or A3. NOTE: The department did not look into A3 segments with depth issues as part of this review.

In summary:

• 131 segments were noted as associated with Elevated Flow in the write‐ups: o 101 segments: Are still well below the depths required to meet the

requirement for classification as A1 even with the elevated flow. These segments should be sufficient depthwise or were already Class A1 or Class A3.

o 30 segments: Are borderline A1 with the elevated flow 25 segments: Closest stream gauge shows stream flows above

the 50th percentile. This should be enough data to justify the field judgment of elevated flow.

Five (5) segments where closest stream gauge is under the 50th percentile will be reviewed more closely:


ELEVATED SEGMENTS Avg Depth

(in) Max Depth

(in) Comments

Little River (Decatur Co.) Elevated flows caused by beaver dams

Rock Creek (Clinton Co.) 6 to 24 35

Elevated: Approximately 0.75 to 1 inch of rain within the week prior to the assessment created higher than normal flows. Base flows and depths were estimated in the field based on surrounding conditions. Estimated as "slightly above." No other argument made in the UAA.

South Fork Middle River (Guthrie) 12 to 28 48

Elevated: Approximately 0.5 inches of rain within the 4 days prior to the assessment created higher than normal flows. Base flows and depths were estimated in the field based on surrounding conditions. Estimated 10 to 12 inches elevated.

South Hoosier Creek (Linn Co.) Elevated flows caused by beaver dams

Whiskey Creek (Cherokee/Plymouth Co.)

Elevated flows caused by beaver dams

There were only five (5) segments that noted elevated flows that weren’t either A1, flows higher than the 50th percentile, or elevated flow didn’t matter because the depths weren’t close to A1 minimums. Of those five stream segments, beaver dams were noted at three of them. The remaining two are below:


Rock Creek had no note of elevated flows in the data sheets and the UAA only indicated that it was “slightly elevated”. The department recommends terminating rulemaking for this segment due to insufficient supporting data based on this method.

South Fork Middle River was estimated to be 10 to 12 inches elevated. The department recommends terminating rulemaking for this segment due to insufficient supporting data based on this method.

A listing of field data and gauge data compared with standard river levels is included in Appendix 2.

5) A general use, rather than an aquatic life use, is recommended despite the presence of fish

IDNR has conducted UAAs to determine appropriate aquatic life uses for its streams. Iowa’s WQS define B(WW‐3) as:

Warm water (Class “B(WW‐3)”). Waters in which flow persists during periods when antecedent soil moisture and ground water discharge levels are adequate; however, aquatic habitat typically consist of non‐flowing pools during dry periods of the year. These waters generally include small streams of marginally perennial aquatic habitat status. Such waters support a limited variety of native fish and invertebrate species that are adapted to survive in relatively harsh aquatic conditions.

Iowa’s WQS defines general use streams as:

…intermittent watercourses and those watercourses which typically flow only for short periods of time following precipitation and whose channels are normally above the water table. These waters do not support a viable aquatic community during low flow and do not maintain pooled conditions (emphases added) during periods of no flow.

The presence of fish in pools should result in an aquatic life use unless scientific data is submitted to support a general use designation. Without sufficient data, EPA must rely on the presumption contained in its regulations that the CWA Section 101(a) uses are attainable.

DNR Response:


The determination a stream segment is appropriately classified as general use constitutes a determination that the rebuttable presumption, as codified at 567 IAC 61.3(1)“b”, was never applicable to this stream segment. These determinations do not require rulemaking by the Department and therefore no decision item is submitted to EPA for review and approval. The only methodology available to EPA to classify these stream segments as something other than general use is for EPA to independently gather data establishing that these waters meet the legal standard as a “Water of the U.S.” and to then promulgate a stream designation for each stream segment in the Code of Federal Regulations. Until such promulgation occurs, or the Department completes a future rulemaking determining that any such segment is not a general use segment, they will remain general use segments.

6) No recreational use is recommended despite the presence of fish, and water in sufficient quantities and depth to make recreation attainable

Iowa’s WQS defines the B(WW‐2) aquatic life use as follows:

Warm water – Type 2 (Class “B(WW‐2)”). Waters in which flow or other physical characteristics are capable of supporting a resident aquatic life community that includes a variety of native non‐game fish and invertebrate species. The flow and other physical characteristics limit the maintenance of warm water game fish populations. These waters generally consist of small perennially flowing streams.

In addition, Iowa defines a Class 2 secondary contact recreational use as:

Waters in which recreational or other uses may result in contact with the water that is either incidental or accidental. During the recreational use, the probability of ingesting appreciable quantities of water is minimal. Class A2 uses include fishing, commercial and recreational boating, any limited contact incidental to shoreline activities and activities in which users do not swim or float in the water body while on boating activity.

Recreational activities, such as wading and shoreline activities, are attainable on Class B(WW‐2) and/or Class B(WW‐3) aquatic life use streams. These activities require a corresponding and appropriate level of human health protection, such as a Class A2 recreational use designation. Without sufficient data, EPA must rely on the presumption contained in its regulations that the CWA Section 101(a) uses are attainable.


DNR Response:

The determination a stream segment is appropriately classified as general use constitutes a determination that the rebuttable presumption, as codified at 567 IAC 61.3(1)“b”, was never applicable to this stream segment. These determinations do not require rulemaking by the Department and therefore no decision item is submitted to EPA for review and approval. The only methodology available to EPA to classify these stream segments as something other than general use is for EPA to independently gather data establishing that these waters meet the legal standard as a “Water of the U.S.” and to then promulgate a stream designation for each stream segment in the Code of Federal Regulations. Until such promulgation occurs, or the Department completes a future rulemaking determining that any such segment is not a general use segment, they will remain general use segments.

7) Legal descriptions in the Surface Water Classification document must be accurate for streams and/or lakes

Segment legal descriptions provide the general public, IDNR permitting staff, and EPA with the appropriate specific locations for all designated uses. EPA has identified several inaccurate legal descriptions while reviewing the UAAs and the recommended changes to stream use designations. A proper legal description is needed for the EPA to discern what information supports a recommendation to assign a designated use. In instances where the stream segments’ original legal descriptions were revised and divided into several smaller segments, removing the Class A1 use designation for each new segment must be supported in the UAA.

For example, IDNR divided Long Creek in Des Moines County into multiple segments. The original legal description for Long Creek included Mathis Lake. The revised SWC document now excludes Mathis Lake from the legal description and only identifies the upstream and downstream portions of the stream.

DNR Response:

This issue appears to surround stream segments where we have taken away the “presumed” use and replaced it with what is attainable.

As an example, EPA cites Long Creek in Des Moines County, which presently excludes Mathis Lake. In the Water Quality Standards for 2006, the department has Long Creek identified as a “presumed” Class A1 and B(WW‐2). Then, in the 2007


Water Quality Standards, the department has Long Creek and Mathis Lake in the Batch 1 work as a Class A2 stream from the mouth to an Unnamed Creek upstream of Mathis Lake. In Batch 3, the department extended the use to include an area further upstream. The first WQS for 2006 does not separate the designations from upstream and downstream of Lake Mathis. In Batch 3, however, the department does not make that distinction between the upstream and downstream portion of Long Creek. The use designations were never meant to designate Lakes or Wetlands and have not been nor should be designated in a UAA as an extension of the stream. Mathis Lake has not been designated in the Lakes and Wetlands and was not designated in Water Quality Standards 2006; however, it seems EPA is making the assumption that it is because the department did not make that distinction in previous SWC’s between upstream and downstream of the lake.

8) Recommendation to remove the Class A1 use rely on data collected outside of the recreational use season

In a comment letter to IDNR dated October 31, 2007, EPA recommended that a UAA not be performed outside of the recreational season “unless” to support either a Class A1 or Class A3 use (CWA 101(a) uses to protect human health). IDNR responded to this comment as follows:

...while assessments will normally be conducted during the recreational use season, the Department believes it would be inappropriate to establish a procedural limitation that prevents the consideration of appropriate representative data solely due to the date on which that data was collected. Conditions outside of the recreational season may be conducive to verification of data or to the collection of original data. For example, when vegetation is diminished or gone during the winter months, evidence of recreational activities may be more readily observable than it would have been when shielded by heavy vegetative cover.

Data collected from a site solely outside the recreational season does not provide sufficient justification for removing the primary contact recreational use.

DNR Response:

The department checked the dates of field data in comparison with the Recreation Season as defined in the department’s Recreational Use Protocol. The dates of field assessment for the assessments were reviewed for all the segments in Batch 3. Five (5) segments were found to have sites assessed outside of the Recreation Season by


one day (November 16). The Recreation Season ends on November 15. Of these five, three segments have field data from dates within the Recreation Season and have enough data on their own to justify the recommendation. Two segments were collected on November 16, and do not have data from inside the Recreation Season.

The department feels that based on its observations, one day outside of the Recreation Season is not enough to void the results of the assessment. The UAAs provide the supporting documentation explaining why the data is valid and reasonable.


Organization Comments


Comment 1:

“Our members live, work or play in and near the streams being designated. Many of our members own or rent the land under and adjacent to these streams as part of their farming business. Our interest in this rule is to ensure that these streams are accurately designated. Our main concern with this rule package is a review of the information supplied on the department’s web site demonstrates that approximately a third of the streams designated as A2 would more appropriately be general use streams under the standards established in Iowa Code § 455B.176A. Because of the large number of stream segments in this rule package, our comments reflect an overview of our review of all the DNR data collected for the listed stream segments.

The purpose of this rulemaking is to assign appropriate designations to Iowa’s perennial streams to correct the flawed presumption of A1 and B1 uses for all perennial streams. We continue to disagree with the characterization of the stream designation process by some that this is a “downgrade” of stream protections. The A‐1, B‐1 uses assigned in 2006 are not appropriate for any of the streams recommended in this rule package to be designated as A2. Most of these streams can be stepped across and some designated areas are so narrow and shallow as to legitimately question the recommended A2 designation. Potential recreation is limited to walking along side on private land that has no public access points except for a rare bridge crossing. Many of the stream segments are channelized with very steep banks that would prevent this type of recreation.

As required by Iowa Code § 455B.176A(a)(2)(c), the Environmental Protection Commission should consider the public accessibility of the stream segments that cannot support a canoe or any floating device when assigning a recreational use. If a creek is not accessible to the public by floating to the water, it should have a recreational use designated. This list includes such streams where because of topography and private ownership, the streams are extremely difficult to access without trespassing. In fact the DNR’s survey information indicates that the surveyors entered many of the streams through private property or the land on which the POTW is located.

Streams are to be designated in accordance with Iowa Code § 455B.176A which required a stream designation when the 10‐year median flow is equal to or in excess of one cubic feet per second between July 1 and September 30 and when no rainfall has occurred within the past 24 hours greater than ¼ inch or within the past two week of greater than ½ inch. A review of the DNR data indicates that many evaluations occurred within 24 hours of a rainfall exceeding a ¼ inch. The impact of this precipitation was presumed rather than waiting until base flow conditions presented themselves. The


impact of not waiting effects the amount of water for the field survey and impacts observations of whether enough flow exists for an A2 use.

Additionally, stream flows in some reports were noted to be below the required 1 cfs. This should have indicated that the stream segment should not be designated under Iowa Code § 455B.176A(2). About a third of the stream segments proposed to be designated do not meet this flow requirement for a recreational use designation upon review of photographs and information provided by the DNR database. Stream segments not meeting the criteria of § 455B.176A should not be designated, and are more appropriately left as general use streams. In other cases, the designation goes farther upstream than appropriate for an A2 or B(WW2) designation. On the aquatic life sampling, at least in some cases, the sampling took place where the surveyors found water in that portion of the stream and is not representative of the entire reach.

As the Iowa Environmental Council testified during the October 13, 2005 public hearing on 2006 rulemaking, “the proposed changes do not include protecting every ditch and dry run in the state…. Ephemeral streams that are above the water table and carry water only during and immediately after rainfall events or intermittent streams that do not maintain pooled conditions capable of sustaining aquatic life during periods of low flow would continue to be classified as general use segments.” Given the evidence presented by the department of stream conditions lacking adequate water at survey locations, any suggestion or decision to designate these streams as A1 is both contrary to previous testimony of the Council and contrary to Iowa law. Should such a decision be made, such decision would be unreasonable, arbitrary and capricious.

The proposed designations erred on the side of a more “stringent” designation when a lower designation was more justified from the information collected. Attached is a list of observation points for designated streams that should be reconsidered for meeting the flow requirements and ability for the public to access the streams segments. A “remote potential” of secondary uses such as driving a four‐wheeler, walking alongside of a creek, hunting or trapping should not be considered an A2 recreational use. A stream that is difficult to access because of steep banks, trees, vegetative growth or other terrain and which is located in a sparsely populated area should be a general use stream in accordance with Iowa law. Low flow streams should not be designated as A2 as if it is the default designation. Streams with these characteristics are more appropriately categorized as general use streams for recreational use. An A2 designation may make the difference between a community or business being able to afford a treatment system and has economic growth consequences.


The treatment of intermittent streams and the smaller perennial streams that only contain enough water to recreate in after the spring thaw or high precipitation periods were an issue with the EPC’s deliberations of previous designations. These streams are not properly designated as an A‐1, A‐2, B(WW‐1) or B(WW‐2) use because the base‐flow of the stream cannot sustain the use. These streams are not perennial and therefore the “fishable/swimmable” presumption does not apply under the Iowa Code § 455B.176A(2) requirements for a designated stream.

Our state has limited resources to address water quality issues and these resources should be focused on water resources that have enough water to maintain the recreational or aquatic use. Streams that do not flow year round or do not have enough flow during the recreation months cannot fully support the A2 recreational use. There is no reasonable implementation step for a watershed improvement plan to achieve fully supporting recreational uses for a stream whose flow doesn’t support the use during the recreation season. The discussion on pages 6‐4 and 6‐5 of the EPA Water Quality Standards Handbook makes it clear that it is appropriate not to designate these types of streams because of the physical limitations of the stream.

The streams in the proposed rule were thoroughly evaluated by the field observers. Like the first two batches of stream designations, the field observers generally did a good job describing and documenting the stream uses. However, we question many of the conclusions from the documented observations. When determining whether a use is attainable, the department is required to consider whether low flow conditions could inhibit recreational activities and the degree to which the public has access to the stream segment under § 455B.176A(2) and (4). Because the use attainability analysis recognizes these characteristics for many of these streams segments, it should lead to a decision that they are general use streams rather than an A2 “default” designation being assigned.

In conclusion, we support the DNR’s efforts to assign appropriate designated uses to these previously undesignated streams. We respectfully request that the DNR not designate streams where the stream’s base flow does not provide enough water for recreational use to occur, streams with shallow pools without interconnecting runs and streams where the public does not have reasonable access to recreate in the stream as required by Iowa law and allowed by federal law and guidance. The DNR should evaluate the requirements of Iowa Code § 455B.176A in its evaluations for these smaller rural streams before designating them as an A2 stream rather than general use stream. Thank you for the opportunity to comment.”


DNR Response:

The department feels its stream designations were assigned appropriately. The department follows its “Recreational Use Assessment and Attainability Analysis Protocol” (Rec Use Protocol) when designating streams. These were adopted by rule at IAC Chapter 61.3(8). The Rec Use Protocol was developed from prior recreational use protocols used for UAA work completed by Tetra Tech in Iowa pursuant to a $50,000 EPA contract and based upon recreational use protocols used in Missouri and Kansas. Improvements to these prior protocols were made based upon input from EPA, as well as Missouri and Kansas.

Pursuant to the protocol, each subject stream was visited and data was gathered through photographs, site observations, physical measurements, citizen comments, and the use of other available data. The Department worked with EPA on the development of the Rec Use Protocol but concerns were later raised by EPA and adjustments were made after the state rule making was finalized for later UAAs including how the department analyzed and applied the depth data to make highest attainable recreational use determinations.

The department concurs that there is often a misperception of what the difference in classification from Class A1 to Class A2 means. Some perceive this as a “downgrade”, which is simply not the case. Please see the report sections entitled, “Issue: Attainability” as well as “Issue: Class A2 criteria is not protective of public health” for additional information regarding the stream designations.

The reference to the “1 c.f.s.” is in code; however, the rule more specifically states the following:

“2. A water of the state shall be a designated stream segment when any one of the following is met:

a. The most recent ten-year median flow is equal to or in excess of one cubic foot per second based on data collected and evaluated by the United States geological survey between July 1 and September 30 of each year or in the absence of stream segment flow data calculations of flow conducted by extrapolation methods provided by the United States geological survey or based upon a calculation method adopted by rule.

b. The water is a critical habitat of a threatened or endangered aquatic species as determined by the department or the United States fish and wildlife service.

c. Credible data developed in accordance with section 455B.193 shows that water flows that are less than set out in paragraph "a" provide a refuge for aquatic life that permits biological recolonization of intermittently flowing segments.”


While it may be true that the department made its determinations on stream designations in some cases where the flow was less than the one cubic foot per second, the rule clearly states that this is not the only requirement necessary to consider a stream a designated use. If in the department’s assessment it determines that a stream is a critical habitat of a threatened or endangered aquatic species or if there is credible data that shows that even though water flows are less than that set out in paragraph “a”, they can still provide a refuge for aquatic life that permits biological recolonization of intermittently flowing segments, then it would also be appropriate to designate a stream segment.

Regarding stream flow comments, please also refer to the report section entitled, “Issue: Stream flow fluctuation during the recreation season”.

Comment 2:

“I would like to provide comments today … for the stream Use Attainability Analysis the DNR has been working on for several years now. First, I want to recognize the effort and work by the DNR staff to conduct these stream assessments. This has not been a small and simple task, but an extensive undertaking instead.

I would like to emphasize some comments previously submitted … on these stream designations. The federal Clean Water Act and Iowa law establish that primary contact recreational uses that involve full body contact with the water such as swimming is the presumptive use for all perennial flowing streams. According to federal law, the Use Attainability Analysis (UAA) process is a structured assessment of existing recreational uses and all factors that would affect the attainability of recreational uses. A primary contact recreational use can only be removed or rebutted [if] the UAA determines that primary contact uses are not existing or attainable. If that conclusion cannot be made because of lack of data, information, or lack of time or resources to collect that data then the presumptive A1 use should be retained. The fact that DNR was required by Iowa legislature to do over 1000 UAA assessments without adequate resources to do a thorough assessment does not reduce the burden of proof to rebut the presumption that primary contact recreational uses are attainable. The burden of proof should be to show that the appropriate designation is other than A1, primary contact recreation.

I would like to stress that a synonym for attainable is potential. The Iowa Environmental Council believes that if any reach of a stream can be used for canoeing, kayaking or tubing then the entire length of that stream has potential for primary contact recreation. We also strongly believe that if a stream flows through a public access area


such as picnic areas or playgrounds then that stream should be designated at a minimum for A3 children’s play uses because of the potential for kids to play in these waters, even though the frequency of this type of recreation might be difficult to determine.

Thank you Iowa DNR for your work in this effort, I look forward to continuing to work with the Department.”

DNR Response:

The department follows Chapter 61, the Water Quality Standards, as well as its Recreational Use Protocols when it completes UAAs. This ensures a systematic process for evaluation. The criteria for classification are detailed in each of those documents.

Also in these documents, the definition for Children’s recreational uses is listed:

“Children’s recreational use (Class “A3”). Waters in which recreational uses by children are common. Class A3 waters are water bodies having definite banks and bed with visible evidence of the flow or occurrence of water. This type of use would primarily occur in urban or residential areas.”

The department has to determine if it has enough evidence to indicate that children’s recreational uses are “common”. This is occasionally necessitates a judgment call based on all the evidence noted, which not all parties may agree with, but which is usually completed as systematically as possible according to established protocols.

Comment 3:

Assessment of recreation uses for rivers used for canoeing, kayaking and tubing

[This organization] strongly believes that all rivers and streams that are used for canoeing, kayaking and tubing should be designated for A1 recreation. We believe that Iowa’s water quality standards recognize that primary contact recreation activities are common as part of canoeing on Iowa waters by specifically identifying water contact recreational canoeing as an A1 use. Iowa rivers that are navigable by canoe or kayak provide access to the public to the entire length of the river and while not all people who canoe also swim in the water while on a canoeing outing, when the weather is warm enough for swimming, many people who canoe stop along the way to swim, splash around and cool off in the water. This certainly includes children who would not need very deep water to support full body contact recreation. In fact, rivers that are


used for canoeing are also frequently used by young people for tubing which by its very nature is prolonged and direct contact with the water. For this reason we strongly recommend that the Department assure that all Iowa waters used for canoeing, kayaking or tubing have water quality standards that are protective of primary contact recreation uses involving substantial contact with the water including the potential for water ingestion and contact with sensitive body organs such as the eyes, ears, and nose.

Many smaller rivers and creeks in Iowa are used for primary contact recreation seasonally in the spring and other times of the year when flows will support these activities. Even if primary contact recreational uses are not attainable throughout the entire recreational season, if primary contact recreation uses are existing and/or attainable then these seasonal uses must be recognized and protected with an A1 primary contact recreational use designation.

DNR Response:

Under current rules, canoeing at elevated flows does not establish the attainability of a Class A1 designation based upon the following:

1) The EPC‐approved Recreational Use Assessment Protocol states that assessments should be conducted at base flows to acquire the best possible results from a single survey because base flow conditions are representative of the entire recreational season. Base flow is that portion of a stream’s flow contributed by sources of water other than precipitation runoff. This refers to a fair weather flow sustained primarily by springs or groundwater seepage, wastewater discharges, irrigation return flows, releases from reservoirs, or some combination of these. As a result, UAAs are written to reflect base flow conditions.

2) The department has attempted to be consistent with the historical intent of

these rules at the time of their adoption by the Environmental Protection Commission (EPC). In general, waters where swimming (i.e., full body immersion) is reasonably possible are considered to be able to support activities “that may result in prolonged and direct contact with the water, involving considerable risk of ingesting water in quantities sufficient to pose a health hazard”. The definition further provides examples of what activities this can encompass such as “swimming, diving, water skiing, and water contact recreational canoeing”.


The EPC decided that a distinction should be made between the activities of canoeing versus water contact recreational canoeing with the understanding that some people who canoe do not want to get wet while others intend to get wet.

Looking at this distinction in regard to use attainability can pose implementation issues. The department’s understanding upon assessing these waters is that Class A2 and its associated criteria ensures that water will be of a sanitary quality to protect the public if contact with the water is incidental and infrequent. Canoeing was considered an activity consistent with Class A2 and Class A2 is protective of that type of activity. In addition, EPA’s draft “Implementation Guidance for Ambient Water Quality Criteria for Bacteria” from May of 2002 defines secondary contact activities as

“those activities where most participants would have very little contact with the water and where ingestion of water is unlikely. Secondary contact activities may include wading, canoeing, motor boating, fishing, etc.”

The department used depth guidelines to help in determining whether or not a water body could support Class A1 uses (i.e., 1 meter maximum or 0.5 meters maintained over 50% of the reach) to better address the issues regarding recreational activities. The concept here is that many Class A1 type activities require the presence of a sufficient amount of water to support those activities. The implementation of these guidelines do a good job of addressing this issue as waters that possess enough flow or water present to support Class A1 typically are the waters deep enough for canoeing. The EPA has approved this approach in other states.

The majority of stream specific comments received were tied to a small number of DNR’s original recommendations that did not meet our depth guidelines; this is one of the main causes of the controversy regarding use attainability analysis rulemaking efforts. If, upon evaluation of the public comments and re‐evaluation of the data collected, we discover activities that are consistent with water contact recreational canoeing or common kids play despite the marginal flow conditions, then adjustments will be made to the original recommendations.


3) Class A1 criteria are intended to protect people recreating at high use beaches throughout the recreational season, not where chances of prolonged and direct contact are sparse and limited to high flow events in cold weather months where, at times, instream recreation is not recommended by the DNR. As a general rule, people will not engage in swimming and water contact recreational canoeing resulting in prolonged and direct contact with the water during colder spring months.

4) Class A2 is criteria protective of canoeing. (EPA’s draft “Implementation

Guidance for Ambient Water Quality Criteria for Bacteria” from May of 2002)

5) Streams in each batch are analyzed for season long canoeability by determining if they are formally referenced in the DNR “Iowa Stream Fishing & Canoe Guide”, using the depth guidelines in conjunction with public comments, and double checking internally with DNR resources including wildlife managers, fishery personnel, and other river related programs.

Assessment of recreation uses in Public Use Areas

It is critical that rivers and streams flowing through our public use areas are properly designated and that the water quality standards are protective of existing water contact recreation uses occurring in these areas. This would include seasonal uses for canoeing, swimming when water depth and flow is sufficient to support these uses. If these public use areas include playgrounds, picnic facilities, camping, hiking trails or support other activities for families with children, all streams flowing within these public use areas that are not designated A1 should be designated A3 for children’s recreational use even if the DNR failed to document that the use is frequent.

DNR Response:

See previous and following comments.

Assessment of recreation uses in or near cities and towns

The Council strongly recommends a more thorough assessment of all river and stream segments in and near cities and towns to determine if primary contact recreational activities are occurring in these areas, including children’s recreational use. At a minimum the UAA must include a site visit to the stream at its closest proximity to town and in the areas most likely to provide access to the public. The UAA should also include documented interviews with local residents including children and families living near


the stream. It is critical that rivers and streams flowing through Iowa communities of all sizes are properly designated to assure water quality standards that are protective of water contact recreation uses, especially children’s play.

The federal Clean Water Act and Iowa law establish that primary contact recreational uses that involve full body contact with the water such as swimming is the presumptive use for all perennial flowing streams. According to federal law, the Use Attainability Analysis (UAA) process is a structured assessment of existing recreational uses and all factors that would affect the attainability of recreational uses. A primary contact recreational use can only be removed (rebutted) if the UAA determines that primary contact uses are not existing or attainable. If that conclusion cannot be made because of lack of data and information (or lack of time or resources to collect that data or information) then the presumptive A1 use should be retained. The fact that DNR was required by the Iowa legislature to do over 1000 UAA assessments without adequate resources to do a thorough assessment does not reduce the burden of proof to overturn (rebut) the presumption that primary contact recreational uses are attainable.

DNR Response:

The department follows Chapter 61, the Water Quality Standards, as well as its Recreational Use Protocols when it completes UAAs. This ensures a systematic process for evaluation. The criteria for classification are detailed in each of those documents.

Also in these documents, the definition for different recreational uses are listed. See the report sections titled, “Issues: What types of activities are considered for Class A1 and Class A2 recreational uses?” and “Issues: What characteristics define ‘child’s play’ in Class A3, Children’s recreational use?” The water contact recreational season in Iowa Administrative Code is from March 15th to November 15th. No flexibilities are provided in the IAC for times of the year or season when water levels are elevated. This is legally interpreted to mean that the use must be supported throughout the recreational season. Recreational use assessments are conducted at base flow conditions as prescribed in the Recreational Use Assessment Protocol. For example, if a stream is able to demonstrate adequate depths to support Class A1 at base flow conditions, then the stream should be reasonably assured to support Class A1 throughout the recreational season.


This question arises from a misunderstanding of the Class A3 use, as adopted by law. The existence of a Class A3 use must be established by field assessments based upon the following:

1) A key premise to understand is that Class A3 needs to be proven common, it cannot be presumed. The definition is clear and, in fact, this is the only way a kid’s play‐type use is even possible otherwise all streams can be kid’s play attainable thus eliminating the utility of such a use.

2) The Class A3 use is applied where children’s play is common in an area given

an assessment of all relevant factors. On several occasions we found no evidence of use accompanied with interviews that stated no known recreational uses for streams that flowed through city limits of Iowa communities. For this reason, we cannot presume (nor should we) that Class A3 uses are taking place. If we weren’t at a City or town, then aerial photography is closely examined in addition to public and County Conservation Board surveys to help make an assessment.

3) The department’s procedures for assessing the recreational uses of Iowa’s

water were primarily derived in 2005 by working with the EPA to execute a contract with an outside environmental services company. The purpose of the contract was to address issues regarding a 2004 rule making submittal to EPA that designated hundreds of miles of rivers for Class A2 protection. These procedures are heavily based off the recreational use protocols of Missouri and Kansas. These original protocols did not call for assessments in Cities. Only later were cities added when the rec. protocol was adopted into rule in March 2008. It is difficult to hold data collected in 2006 accountable to 2008 expectations. This was addressed by closely reviewing aerial photography and researching all stream use surveys.

4) As the department began to conduct field work mandated by the legislature

it became apparent that there was a need for additional efforts to better involve the public into the process. In addition to the field interviews conducted from across the state as field assessments were performed, the department created postage‐paid interview cards to be dropped off at streamside homes in case nobody was around for an interview. Questions about how these waters are or are not used were developed to be useful in regards to the definitions of Iowa’s three Class A uses: Primary Contact, Secondary Contact, and Children’s Play recreation.


In addition to the postcards, an online stream survey was developed that contained similar questions to the postcards. Also, following the DNR’s example, the Sierra Club created their own forms that were very similar to the format originated by the department.

The surveys are felt to be adequate and have proved to be very useful in providing the department another line of evidence to better ensure that an accurate recommendation is developed, especially in helping to justify if kid’s play is truly a common occurrence.

Comment 4:

“I have reviewed the list along with my board of directors at our meeting today. I see drainage ditches listing in the following counties – Buena Vista County (I assume lateral 6 and lateral 8 are drainage ditches), Clay County, Clinton County, Dickinson County, Hamilton County, Hancock County, Kossuth County, Monona County, Palo Alto County, Polk County, Sac County, Webster County and Woodbury County. The proposed recreation use designation is frankly irrelevant. Drainage ditches are not public waters and are not intended for any sort of recreational purpose. Although most ditches are managed by county boards of supervisors acting in their capacity as drainage trustees, the ditches are privately owned by the landowners that receive benefit from them. There should not be any drainage ditches on this list.” DNR Response: Iowa Code section 455B.171(37) states that “water of the state” means any stream, lake, pond, marsh, watercourse, waterway, well, spring, reservoir, aquifer, irrigation system, drainage system, and any other body or accumulation of water , surface or underground, natural or artificial, public or private, which are contained within, flow through or border upon the state or any portion thereof. Drainage districts satisfy several of the terms included in “water of the state.” They are clearly waters that must be designated for their highest attainable recreational use.

The designation of a water body for a recreational use does not grant any form of recreational access in and of itself. However, two facts should be considered in regard to the issue of recreational uses on drainage ditches. First, it is important to note that


private landowners have a right to protection of the recreational uses in which they may engage regardless of whether members of the general public are allowed access to the stream segment. Recreational uses must be established to protect these private uses. Second, pursuant to Iowa Code sections 462A.2(22) and 462A.69, the public has a right to the navigation of any stream that can support a vessel carrying one or more persons during a total of six months in one out of every ten years. The Iowa Attorney General has found that these statutes also authorize uses incidental to navigation such as wading and fishing within the stream. This is true regardless of the private ownership of the stream bed.

For these reasons, the Department has a duty to assign appropriate recreational use designations to the listed water bodies.

Comment 5: “Over the years, the IOWATER Program has made changes to its data assessment forms in an effort to collect information that may also be useful to other parts of the DNR. One such change made occurred during the early months in 2006 when the IOWATER Habitat Assessment form was modified to include information on Human Use Activities and Evidence of Human Use (see attached IOWATER Habitat Assessment field form) based on terminology used for UAA assessments. Also at this time, we added these same categories to all of our IOWATER snapshot field sheets (see attached sample IOWATER Snapshot field sheet). Given the current comment period for the streams that have had a Use Attainability Assessment (UAA) completed, I’ve compiled available use attainability assessment data that IOWATER volunteers and others have collected as part of IOWATER snapshot events or through regular monitoring of their IOWATER sites. I would hope that this information can be included in the evaluation process of the completed UAAs, as many of the people involved in this monitoring are familiar with streams in their local areas. I only included data for sites that are located on stream segments with completed UAAs that are currently open for public comment. These data were collected from the spring of 2006 through the spring of 2010. The IOWATER data includes 624 assessments for 138 sites. These sites include 17 sites on stream segments proposed for A1 designation, 65 sites on proposed A2 segments, and


56 sites on proposed A3 segments. The map included in this letter shows the location of sites monitored as part of the IOWATER Program that are located on UAA segments. Attached to this email is an Excel spreadsheet that includes the data from IOWATER database. For many of the sites, the spreadsheet contains information on human use activities and evidence of human use from multiple dates. The categories for Human Use Activities and Evidence of Human Use have either a “Yes” or “No” response depending on whether the person sampling indicated “Yes,” that particular use occurred, or “No,” that particular use does not occur. Each site also has the UTM coordinates. The columns highlighted in yellow in the right part of the spreadsheet represent the data from the UAA GIS coverage that Chris Spoelstra sent me on April 7 so that it is apparent on which stream segment each IOWATER site is located. I also have included a GIS coverage of the IOWATER sites linked to Chris’ UAA stream segments. Let me know if you have any questions or if there is additional information that you need.”


The questions asked as part of the IOWATER monitoring assessments are shown below: FOR OFFICE USE ONLY When data are checked and entered, initial here:

Scott County Snapshot – October 9, 2007 Field Information (to be completed by the volunteer) Site #: _______________ Site Name: _____________________________________________ Sampler Name(s) (print): _________________________________________________________ Date: 10/9/2007 Time: __________ AM PM Weather (circle all that apply) Sunny Partly Sunny Cloudy Rain/Snow Windy Calm Visual Observations 1) WATER ODOR (circle all that apply) None Sewage/Manure Rotten Eggs Petroleum Musky 2) WATER COLOR (circle all that apply) Clear Brown Green Oily Sheen Reddish Blackish Milky Gray 3) Are there animals in the water upstream (i.e., cows, ducks, geese)? Yes / No If yes, what type and how many? _____________________________________________ 4) Are there any tile lines or pipes of any sort that are visible along the river upstream? Yes / No If yes, how many? ______ Are the tiles flowing? Yes / No 5) Canopy Cover (check one) 0-25%_____ 25-50%_____ 50-75%_____ 75-100%_____ 6) Stream Banks – using the categories below, check those that best describe the condition of the stream banks. (check all that apply) Left Bank (facing upstream) Right Bank (facing upstream) _____ Cut Bank – Eroding _____ Cut Bank - Eroding _____ Cut Bank – Vegetated _____ Cut Bank – Vegetated _____ Sloping Bank _____ Sloping Bank _____ Sand/Gravel Bar _____ Sand/Gravel Bar _____ Rip/Rap _____ Rip/Rap _____ Constructed Bank (i.e., drainage ditch) _____ Constructed Bank (i.e., drainage ditch) _____ Other: _________________ _____ Other: _________________ Other comments _____________________________________________________________ (over ⇒) FOR OFFICE USE ONLY When data are checked and entered, initial here:


Adjacent Land Use (along stream reach – check all that apply) ___ Row Crop ___ Pasture ___ Urban ___ Industrial ___ Timber ___ Wetland ___ Prairie ___ Park ___ Playground ___ Campground ___ Boating Accesses ___ Nature Trails ___ Fence ___ Steep Slopes ___ Stairs/Walkway ___ Rural Residential Areas ___ Conservation Lands ___ Animal Feeding Operations/Lots ___ Other ________________ Record all other land use practices that potentially could affect the stream _____________________________________________________________ Human Use Activities (along stream reach – check all that apply) None observed___ Please check activities you’ve participated in or witnessed at this site. ___ Swimming ___ Tubing ___ Water Skiing ___ Wind Surfing ___ Canoeing/Kayaking ___ Boating ___ Wading ___ Rafting ___ Hunting/Trapping ___ Fishing ___ Kids Playing ___ Other ________


Evidence of Human Use (along stream reach – check all that apply) None observed___ Please check evidence of human use you’ve witnessed at this site. ___ Streamside Roads ___ Footprints or Paths ___ Dock/Platform ___ Livestock Watering ___ ATV/ORV Tracks ___ Rope Swings ___ Camping Sites ___ Fire Pit/Ring ___ Fishing Tackle ___ Evidence of Kid’s Play ___ Other _______ Transparency (record whole numbers only – no tenths) _____ centimeters Water Temperature _____ °Fahrenheit pH (check one) 4 ____ 5 ____ 6 ____ 7 ____ 8 ____ 9 ____ Nitrite-N (mg/l; check one) 0 ____ 0.15 ____ 0.3 ____ 1.0 ____ 1.5 ____ 3 ____ Nitrate-N (mg/l; check one) 0 ___ 1 ___ 2 ___ 5 ___ 10 ___ 20 ___ 50 ___ Dissolved Oxygen (mg/l; check one) 1 ___ 2 ___ 3 ___ 4 ___ 5 ___ 6 ___ 8 ___ 10 ___ 12 ___ Phosphate (mg/l; check one) 0 ___ 0.1___ 0.2___ 0.3___ 0.4___ 0.6___ 0.8___ 1 ___ 2 ___ 3 ___ 4 ___ 5 ___ 6 ___ 7 ___ 8 ___ 10 ___ Chloride __________ mg/l – Convert Quantab Units to mg/L using the chart provided on the bottle Where did you collect the water samples? (check one) Directly from the Stream ______ From a bridge ________ Other (describe) __________ ______________________________________________________________________________________ Is this site in an area of high traffic? And/or is it a safety concern to access? Yes / No Please explain: ______________________________________________________________________________________

DNR Response:

The DNR has reviewed the information for streams listed. Many of the notations were not specific as required in the Notice of Intended Action, but did nevertheless present a great deal of information about use and location. The department did review the spreadsheet of listings for streams. We did a preliminary cut by eliminating listings that were only names and county listings and listings with no “yes” indications for primary or secondary contact recreational uses. We also eliminated any comments that did not


have a specific stream watershed tied to it. Based on this, it brought the listing of streams down to seven different streams or rivers (see below), many of which we have already designated in previous batches. These are listed below:

The department then used the .shp file provided by IOWATER to evaluate these stream locations and see if they had data points tied to them. The locations that did have data points were either already covered under previous designations or did not reference the stream that was in our rulemaking. A quick summary is as follows:

• Beaver Creek – Data points don’t appear to correspond to segment that is in this rule making

• Cedar River – Not part of this rule making

• Dry Run Creek – Not part of this rule making

• North Raccoon River – Data points shown appear to be in segments already designated as A1

• Squaw Creek – Area with data points is already designated A1

• Wapsipinicon River – Area with data points is already designated A1

• Whitebreast Watershed – While not listed, we presumed this included Little Whitebreast Creek, which is in this rule making. We did not note data points for White Breast Creek. However, Little Whitebreast Creek did have data points associated with it, but these did not appear to have reference of Primary Contact listings occurring.

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