Iowa DNR says Cedar River water quality plan isn't necessary, experts disagree

CEDAR RAPIDS — The droplets that drip from Cedar Rapids’ taps first belonged to a segment of the Cedar River historically impaired by nitrogen, although the city’s finished drinking water has always met safe drinking water standards for the nutrient.

However, the Iowa Department of Natural Resources now is proposing to withdraw a water quality improvement plan that was created to help keep the city’s drinking water safe — the first-ever proposal of its kind for the department.

⧉ Related article: What you need to know about the Cedar River TMDL

The plan in question, called a total maximum daily load — or TMDL — was drafted by the Iowa DNR in 2006.

Last month, the state released a public notice of intent to withdraw that TMDL due to deficiencies in its design and implementation that would constitute a complete rewrite — which the department said it couldn’t commit to doing in the near future.

The notice stated that the river segment in question is no longer impaired for nitrate, which is a form of nitrogen linked to blue baby syndrome and, in some studies, cancer.

The announcement took many by surprise — and concern.

The document, which was required under the Clean Water Act, calculated the amount of nitrogen the Cedar River watershed could handle on a daily basis while meeting safe drinking water standards. It also assigned nitrogen discharge limits to facilities across the watershed. Without the plan in place, critics worry about the long-term implications for the watershed and for people who depend on the Cedar River for drinking water.

A recently retired Iowa DNR supervisor said he thinks the withdrawal goes against federal law.

“While I was working at DNR — when I was being coaxed, cajoled, pressured, any and all of the above to rewrite that TMDL — I kept pointing out, ‘Hey, there's nothing wrong with the TMDL,’” said Allen Bonini, the former watershed improvement section supervisor who retired in 2021. “There's nothing in the Clean Water Act, its enabling regulations or any of the case law that would suggest that we have any legal right to rewrite the TMDL.”

The state has established a public comment period for its intent to withdraw the TMDL, which closes Monday. The Gazette looked into why this withdrawal was proposed and how it — if it is withdrawn — could impact the Cedar River watershed, the drinking water in Cedar Rapids and the future of other water quality improvement plans in the state.

Why withdraw the TMDL?

A U.S. Geological Survey gauge along the Cedar River in Palo has recorded at least 40 days this year when nitrate concentrations have surpassed the desired 10-milligrams-per-liter limit established by the Environmental Protection Agency.

However, in its public notice, the Iowa DNR stated that the segment of the Cedar River protected by the TMDL hasn’t been impaired for nitrates since April of this year. According to water samples the department referenced in 2020 and 2022 reports, less than 10 percent of nitrate data collected in the river segment violated the limit from 2016 to 2020.

That classifies the river segment as unimpaired, said Katie Greenstein, the Iowa DNR’s supervisor of water quality monitoring and assessment.

But that’s not why the department is calling for the withdrawal. Protective TMDLs can stay in place even if the waterway in question is no longer impaired.

Rather, Greenstein largely attributed the proposal to several issues in the plan that prevent its proper implementation within the watershed. “This is a very special case. This would not apply to any water body that has become unimpaired,” she said.

The nitrogen discharge limits assigned to facilities within the TMDL — including those treating water or wastewater — were supposed to be based on their existing releases into the watershed. But, because of limited data available at the time, some calculated limits have proved to be too stringent, Greenstein said. As a result, some sources are discharging more nitrate than they were originally allotted. Several facilities were also never assigned nitrate limits in the TMDL.

The discharges of least 21 facilities along the river segment prompted an in-depth review of the TMDL by the state. Staff concluded that the plan’s assumptions and data are “too outdated” to continue its implementation.

“The large quantity of new data and information available now … would result in a vastly different TMDL if it were being written today,” Greenstein said. “The DNR has proposed the withdrawal of the 2006 TMDL to procedurally remove a document with these implementation issues.”

PN of Intent to Withdraw Nitrate TMDL in CR Watershed by Gazetteonline on Scribd

‘Hear no evil, see no evil’

During his nearly 16 years with the Iowa DNR, Bonini helped oversee the department’s implementation of the Clean Water Act — particularly the creation of Iowa’s TMDL program.

He told The Gazette that, based on his last decade of work with the department, there’s another reason it’s trying to withdraw the TMDL: Staffers knowingly over-allocated the document’s designated nitrogen limit for facilities in the watershed, and with the TMDL in place, they were failing their duty under the Clean Water Act.

While new facilities may be constructed in the watershed and others may require discharge limit adjustments, Bonini said the target amount of pollution that the waterway can safely withstand isn’t supposed to change. It’s up to the state to divvy up the pollution load among the facilities to achieve the target, which may mean taking capacity from one facility and giving it to another.

Bonini acknowledged that balancing the burden is a challenge. But, as he understands it under the Clean Water Act, it’s the law — which he said the Iowa DNR is not abiding by.

“To say that (the TMDL) is not workable or that it’s flawed is to ignore the fact that the law purposefully is designed to handcuff the limits that can be given, and to put the state and the permitted facilities in a position where they have to come to terms with the fact that they can’t discharge at the levels they historically have,” he said.

Bonini told The Gazette that, during his time working with the Iowa DNR, staffers in charge of assigning and enforcing facilities’ limits openly admitted their over-allocation of nitrogen discharges in the watershed and brushed it off.

“The reaction was something to the effect of, ‘Well, we're not going to worry about it unless somebody brings it to our attention or somebody complains about it,’” Bonini said. “To me, that kind of reflects the cultural attitude that often happened there. That was, ‘Hear no evil, see no evil.’”

For instance, he said the facility repeatedly brought up during his time at the Iowa DNR was a drinking water treatment plant in Waverly, located about an hour north of Cedar Rapids. It is owned by the Iowa Regional Utilities Association and was not included in the Cedar River’s original TMDL because Bonini said it wasn’t constructed at the time.

For most of its operation, the facility did not have a nitrate discharge limit. A 2017 permit set a 9.5-milligrams-per-liter daily cap, but the Iowa Regional Utilities Association immediately appealed it and hasn’t had to abide by it since, Greenstein said.

According to Iowa Regional Utilities Association monitoring data obtained by The Gazette, the facility has reported an average nitrate concentration of 38 milligrams per liter since the start of 2019 — four times the appealed 2017 limit. The Iowa Regional Utilities Association did not return calls from The Gazette.

According to emails obtained by The Gazette, in 2009, Iowa DNR staffers were questioning if the facility was even allowed to discharge nitrogen since it had no allocation within the TMDL. Bonini said the department repeatedly asked him to rewrite the TMDL to accommodate this implementation problem. He refused.

“This has been a recurring theme and a recurring argument that they made to me when I was there, trying to convince me to change the TMDL,” he said. “And I kept saying, as I continue to say, ‘Show me where in the law.’”

Greenstein said the Iowa DNR had several conversations with the EPA about the proposed withdrawal before the notice was released.

“Previous leadership for the TMDL program was determined that TMDLs could never be changed, revised, looked at again. Once they were written, they were set in stone,” Greenstein said. “But litigation and guidance from EPA really hasn’t proven that.”

When The Gazette reached out to the EPA, spokesperson Benjamin Washburn shared only that the agency was reviewing the proposal in the context of the Clean Water Act and intends to submit its own comments. The agency also will review any public comments and Iowa DNR responses concerning the proposal.

What would happen?

In the absence of a TMDL, the Iowa DNR said it would continue to implement the Iowa Nutrient Reduction Strategy that was issued in 2012 to decrease the amount of nitrogen and phosphorous entering Iowa waterways and the Gulf of Mexico. The department also said it would continue to provide funding to mitigate agricultural discharges in the watershed.

The Nutrient Reduction Strategy specifies technology-based approaches for reducing nitrogen discharges at about 150 Iowa facilities. The strategy stipulates permitting approaches for only 17 of the 95 Iowa facilities included in the Cedar River TMDL.

Greenstein said if the TMDL is withdrawn, no facilities in the Cedar River watershed are expected to be allowed to release more nitrate discharges than they were before. However, she also said some facilities — like the Iowa Regional Utilities Association’s Waverly plant — may not be given discharge limits in upcoming permits due to the size of the upstream watershed.

“When a discharger has no reasonable potential to violate a water quality-based (discharge) limit, then no permit limit is given,” she said.

Critics say that won’t be enough to regulate nitrogen. Even though facilities like water treatment plants contribute just 9 percent of the nitrogen pollution in the Cedar River watershed, those sources are the only contributions the state can regulate, said Chris Jones, a University of Iowa research engineer who studies water quality. Without the TMDL, he fears that nitrogen levels in the river could increase over time.

Stakeholders like the Iowa Environmental Council have repeatedly advocated for more regulations of nutrient pollution from nonpoint sources like agriculture and livestock. They comprise 91 percent of the watershed’s nitrate contributions.

“When we put all of the onus on point sources … I think that’s why we’re seeing all of this conflict come about,” said Alicia Vasto, the council’s water program director. “The TMDLs are written with the assumption that the nonpoint sources also will be reducing their share of the load. And that just doesn't happen.”

State geologist and director of the Iowa Geological Survey Keith Schilling — who was also the main author on Raccoon River watershed and Des Moines River TMDLs — agreed: “The only way you're going to really reduce the concentrations and loads in that stream is reducing the amount of land area devoted to corn and bean production.”

Looking at long-term nitrate trends in the Cedar River, Schilling said he doesn’t see water quality getting better — and so he doesn’t agree with the proposal to withdraw the TMDL. Regardless of any flaws in the Cedar River’s current TMDL, he advocates rewriting it instead of withdrawing it completely.

“If some of (the TMDL) could be done better, do it better,” he said. “I think it implies progress when you de-list something. People will assume it's because you're doing all this great work when nothing has really changed.”

However, as long as the Iowa DNR deems the river segment unimpaired, the EPA won’t approve another TMDL for the watershed. If the segment in question becomes impaired again, Greenstein said the state would write a TMDL that considered changing stream flows, ensured all facilities are represented and gave additional thought to how discharge limits are assigned.

Writing a new TMDL for the watershed could take two to three years at minimum, Bonini estimated based on his experience. There is currently one TMDL engineer on staff, but the department will be hiring for two more, Greenstein said.

The Iowa DNR is also working on a 10-year vision for the TMDL program that needs to be in place between the department and the EPA by 2024. Greenstein said that vision will consider new categories for nitrate impairments that may fluctuate with precipitation levels.

“It’s not an impossible situation,” she said about the possibility of the river segment becoming impaired again. “We would rather be in a position of writing a new TMDL because we have learned a lot since that 2006 time period.”

Will this affect drinking water?

Water quality in the Cedar River wouldn’t instantly decrease if the TMDL is withdrawn, Jones said. But it could invite additional nitrate discharges that currently don’t exist — which might eventually impact the drinking water in Cedar Rapids, he said.

The Iowa DNR, on the other hand, does not anticipate any negative impact to water quality if the TMDL is withdrawn, Greenstein said. The department will continue monitoring and assessing the Cedar River to track any future impairment.

Cedar Rapids city staff — who said they first heard about the proposed withdrawal from the public notice — learned from a meeting with the Iowa DNR that “the withdrawal will be unlikely to impact our water customers due to the limited regulatory scope of the TMDL,” said utilities director Roy Hesemann in an email. As such, he said the city doesn’t have a high level of concern about the proposed withdrawal.

Because most of the watershed’s nitrate impairment comes from agricultural sources, the city of Cedar Rapids has prioritized upstream conservation practices to decrease runoff, Hesemann said. Investments in these methods can limit or delay the need for expensive treatment equipment at the city’s water treatment plants.

“We have not needed to start planning for nitrate removal facilities at our treatment plants,” Hesemann said. “We will continue to monitor trends and do what we can to protect source water to the benefit of our customers.”

How do you submit a public comment?

The Iowa DNR will accept written comments until 4:30 p.m. Nov. 7. You can send your comments to TMDLcomment@dnr.iowa.gov or: DNR Water Quality Monitoring and Assessment Section, c/o TMDL Program, 502 E 9th St, Des Moines, IA 50319.

The Iowa DNR said it will consider all comments received prior to making a final decision on the withdrawal of the Cedar River TMDL.

Brittney J. Miller is an environmental reporter for The Gazette and a corps member with Report for America, a national service program that places journalists in local newsrooms to report on under-covered issues.

Comments: (319) 398-8370; brittney.miller@thegazette.com