Some recreation and conservation groups are bucking against the state’s reclassification of 87,775 miles of stream segments to allow for up to five times the current allowable concentration of E. coli — the fecal coliform bacteria that comes from wildlife and agricultural operations and can cause severe illness in humans.
The reclassification of 76 percent of the state’s surface waters does not include large rivers or surface waters in national parks.
The groups say the statewide approach to reclassification is too sweeping, and that the state’s process did not include enough public outreach to learn of all stream segments that possibly should be exempt from the change.
“Anyone who recreates in the surface waters of the state should be concerned about this, especially parents with young children who like to play outdoors,” said Dan Heilig, senior conservation advocate for the Wyoming Outdoor Council.
The state’s Categorical Use Attainability Analysis for Recreation (UAA) document reclassifying state waters was submitted to the U.S. Environmental Protection Agency in December 2014 and implemented in March. Not satisfied with Wyoming’s outreach efforts, the federal agency implored the state to conduct another hearing to gather public input.
In response, the Wyoming Department of Environmental Quality will hold a public hearing from 5:30 to 8:30 p.m. September 16 in the auditorium of the Oil and Gas Conservation Commission building, 2211 King Blvd. in Casper.
UPDATE: Agency officials originally said they would only accept public comments provided in person or in writing during that hearing. However, Wyoming DEQ recently announced it will accept written comments prior to, and during the hearing (see below for details).
Getting stream classification right
Historically, the state applied a “primary contact” E. coli standard — which protects for swimming and “child’s play,” where ingestion of water is likely — to 100 percent of surface waters. Consideration to reclassify waters to “secondary contact” — places where ingestion is unlikely — was done on a segment-by-segment basis.
The segment-by-segment approach became too burdensome for a small staff as more and more applications came to the office, said Wyoming DEQ water quality standards supervisor Lindsay Patterson. So, Wyoming DEQ took on the categorical assessment effort about five years ago in an attempt to properly classify state waters for E. coli standards.
“It’s a matter of having designated use match up with attainable use,” said Patterson. “Water quality will potentially stay the same [for many segments downgraded to secondary use], but it will give the state a better focus of where to put your energy, so to speak.”
Patterson said it doesn’t make sense for Wyoming DEQ and agriculture operators to meet the primary use standard for bodies of water known as non-recreational — mostly remote waters and ephemeral flows. “Why hold dry draws to the same expectations as Sloans Lake in the center of Cheyenne, for example?”
DEQ officials say the agency’s UAA approach required a more scientifically-rigorous analysis than if the agency had continued on a segment-by-segment basis. The statewide approach to reclassifying waters from primary to secondary use automatically excluded flows of 6 cubic feet per second (cfs) or more, and waters within 1 mile of schools, parks, campgrounds and other areas of high use.
The state’s analysis included 150 site surveys conducted by DEQ and 700 county-level surveys by conservation districts. Conservation districts were a main driver for the reclassification effort and intimately engaged in the state process during the five year effort.
“It will result in a more accurate classification of our surface waters,” said Bobbie Frank, executive director of the Wyoming Association of Conservation Districts. “The [state’s UAA] will make sure we’re focusing our resources where there’s a higher risk, where there’s possibility of human contact. … Everything is treated at a [primary use] standard right now even if the use doesn’t support that standard.”
Heilig said the Wyoming Outdoor Council supports DEQ’s efforts to classify waters under the proper primary or secondary use standards. But the legal notices and other outreach employed by DEQ didn’t get the level of public input necessary to provide potential exemptions in such a sweeping statewide action.
“Under the Clean Water Act, water quality standards are based on existing or attainable uses that have to be protected. So, if swimming is an attainable use — not current use — then it must be maintained at that level,” Heilig said.
The state’s standard exemptions applied in its UAA are likely to miss many miles of remote — and not so remote — waters that children, hikers, backcountry hikers and others encounter and play in throughout the state, he said. Whether recreationists and outdoor groups missed DEQ’s legal notices for participation is uncertain, but it is clear that many groups were not engaged in DEQ’s reclassification analysis, Heilig said.
“What we need here is an open and transparent process that invites the public to be educated and involved.”
EPA acknowledged DEQ’s public outreach efforts in drafting the UAA, but, like Heilig, was unsatisfied with the level of public engagement. In a June 2015 letter to Wyoming DEQ, EPA said in order for it to approve any of the recreation designation uses that are consistent with Clean Water Act requirements, the state must conduct another public hearing and submit a transcript and public comments to the agency.
Burden of proof
Organizations such as the National Outdoor Leadership School and American Alpine Club say Wyoming DEQ made too broad an assumption that nearly all small, remote streams are not viable or already used for recreational uses protected under the primary use E. coli standard.
Further, they contend the process in which DEQ has developed the reclassification intends to place the burden of proof to exclude some stream segments on the public at large.
“DEQ’s presumption that small remote streams are not accessible for primary recreation is inaccurate,” the National Outdoor Leadership School (NOLS) wrote in its comments to DEQ. “NOLS expeditions regularly travel on foot more than 100 miles on a 30-day expedition, and nearly all of this travel occurs miles from a road or trailhead. In 2014, we ran 121 expeditions in Wyoming, representing 28,186 user-days that used these waters. Despite being many miles from the nearest road, our students will regularly encounter other users of the backcountry, indicating that we are not the only members of the public to venture into the backcountry.”
NOLS also argued that the state’s use of a statewide reclassification places too much of the burden of proof to exempt specific stream segments from the action on the public without a proper level of engagement.
“Our organization is one of the primary commercial recreation users of the streams that were downgraded in this UAA and we concur with WOC [Wyoming Outdoor Council] that the information and process utilized by the DEQ was not appropriate for such a wide reaching, influential, and potentially harmful decision.”
Despite the state’s implementation of the reclassification, Heilig of the Wyoming Outdoor Council said it’s important that citizens who recreate in Wyoming provide site-specific information regarding surface waters that they know to provide recreation opportunities.
“People should be concerned, because it’s recreational users who have not had the opportunity to participate in this process,” he said. “That feedback has not gotten to DEQ and has not been considered.”
Wyoming DEQ officials maintain they went above and beyond what was required of the agency by law in the process, but will take additional public comment during the September 16 public hearing nonetheless.
To participate: Those wishing to provide comment prior to DEQ’s public hearing September 16 can submit them in writing to: David Waterstreet, Watershed Section Manager, 122 West 25th Street, Herschler Building 4-W, Cheyenne, WY 82002, or by fax at 307-777-5973.
Correction: This story was updated to correct the mean annual flow measurement of 6 cubic feet per second or more, used to identify streams automatically exempt from the state’s reclassification.