New "Credible Data" Rules Threaten Water
Quality
by Dan Heilig
In 1999 the Wyoming legislature passed Enrolled
Act 47, the so-called credible data law. WOC vigorously opposed the bill,
concerned that the law would be used as a club to weaken water quality
protections and interfere with citizen efforts to monitor and reduce water
pollution. The Wyoming Department of Environmental Quality (DEQ) is now
developing rules to implement the new law.
The proposed rule requires the use of "credible
data" to demonstrate water-quality impairment and to designate uses of
surface water. A strict application of the rule could mean that obvious
evidence of water-quality problems — such as fish kills, foul odors, floating
scum or oily sheens — could be ignored if "credible data" are not available
to confirm the pollution. Although it’s still too early to say conclusively
that the credible data law is going to be used to stymie clean-up efforts,
early indications point in that direction.
Obstacles to pollution detection
Enrolled Act 47 defines credible data as "scientifically
valid chemical, physical and[emphasis added] biological monitoring
data collected under an accepted sampling and analysis plan, including
quality control, quality assurance procedures and available historical
data." Because it requires three different types of data to be considered
"credible," the law makes it much more difficult to prove the presence
of pollution in Wyoming’s surface waters.
The difficulty in proving pollution under the new
law has already drastically reduced the number of stream segments appearing
in the official record of polluted waters — called the 303(d) list — from
more than 300 streams in 1996 to just 48 in 2000. This decline is not due
to accelerated clean-up efforts, but because stringent new monitoring requirements
require an unreasonable amount of water-quality data to prove that pollution
is present in a waterbody.
These unnecessary data-collection requirements
imposed by Enrolled Act 47 have also interfered with the public’s right
to gain access to information about water-quality problems in the state’s
surface waters. In 1994, 1996 and 1998, the DEQ published 300-page reports
describing in detail the sources and causes of Wyoming’s water-quality
problems. In contrast, this year’s report is just 18 pages long! Hundreds
of lakes and rivers identified as impaired in the earlier monitoring reports
have been deleted due to the absence of "credible data." In essence, the
state has defined away Wyoming’s water-quality problems.
Squashing citizen participation
The new regulations will make it harder for citizens
and local watershed groups to get involved in water-quality monitoring
and restoration efforts because of the requirement that people who perform
water-quality tests have "specialized training and field experience in
developing a monitoring plan, [and] a quality assurance plan." Water-quality
testers must also be "free from preconceived bias." Keeping in mind
the agenda of the law’s backers, the obvious question raised by this requirement
is, would your membership in WOC or any other environmental group disqualify
the water-quality data you collect?
Suppose, you’re walking along the North Platte
River near Casper and see sludge and other oily deposits along the banks.
You collect a sample in your plastic bag (left over from lunch) and deliver
it to the DEQ offices for analysis. "Sorry," you are told, "we can’t help
you. Our law requires you to be highly trained and to follow certain testing
procedures. You didn’t. Besides, we think you are biased because you recently
lodged a complaint in our office about pollution in the North Platte."
Ignoring the obvious
The proposed regulation also requires the use of credible
data to determine the uses that are taking place in a stream or other surface
water. To understand why this requirement threatens water quality requires
a little background on the Clean Water Act. At a bare minimum, the Act
requires states to protect "existing uses" and the quality of water necessary
to support those uses. One very obvious and important use of Wyoming’s
surface waters is fisheries. If a stream has fish, water quality must be
kept clean enough to sustain that use.
But suppose you encounter a stream that contains
fish but which is not shown on the DEQ’s list of fisheries (unfortunately
a common occurrence). Under the credible data law, the photo of you holding
your trophy trout is not sufficient evidence of the presence of fish. Nor
is your sworn statement that you caught the fish. Nope. You need to find
a qualified and unbiased water-quality sampler who, after developing acceptable
monitoring and quality assurance plans, collects chemical, biological and
physical monitoring data (in the proper containers, of course) and sends
it off to a lab for analysis. Only then will the DEQ acknowledge the presence
of fish in the waterbody.
EPA protests
The federal Environmental Protection Agency (EPA)
has expressed concern over the credible data requirement. In a letter to
Wyoming’s DEQ, the EPA’s Region 8 office wrote, "As
explained in our February 8th letter, failure to designate waters for aquatic
life and recreation uses simply because of a lack of credible data is unacceptable."
EPA raised this concern because the Clean Water
Act contains a presumption that all waters of the U.S. contain aquatic
life and therefore must be protected at a level of cleanliness to support
such life. The burden is placed on those who wish to lower water quality
standards to demonstrate the absence of aquatic life. Unfortunately, Wyoming’s
credible data law improperly shifts the burden to its citizens who want
clean rivers and healthy watersheds.
Why should we be concerned? Because we’re not being
told the truth about Wyoming’s water-pollution problems. And because the
new regulations weaken water-quality protections and complicate efforts
by concerned citizens and local watershed groups to monitor and reduce
water pollution in Wyoming’s rivers and streams. |
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