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delisting criteria

July 22, 2009 - by Rebecca L. Katers

Several local, state and federal government agencies are trying to push through changes that will obscure local environmental problems in the Green Bay area by simply defining them out of existence. 

In the 1980s, a list of 13 problems were identified, and these formed the basis for clean-up planning. Now, the agencies are writing “Delisting Targets” to allow them to take each problem off the list and declare victory, in many cases when serious problems still exist.

A public comment period is being held right now (comments due by August 6).  It’s vital that everyone protest these changes, because premature delisting would undercut future efforts to better address problems.  We would have no local mandate or hope of government funding if our problems are declared “solved.”


The Lower Green Bay and Fox River Area of Concern (AOC) is one of 43 Great Lakes sites that were identified in the mid 1980’s by the United States and Canada under the Great Lakes Water Quality Agreement (GLWQA).

Our AOC includes the lower 7.4 mi of the Fox River below the De Pere Dam and a 21 mi2 area of southern Green Bay out to Point au Sable and Long Tail Point.  In 1987, amendments to the GLWQA defined Beneficial Use Impairments (BUIs) and 11 were identified for our AOC and 2 more were “suspected.”   They formed the basis of the Lower Green Bay Remedial Action Plan of 1988, which was the first comprehensive statement of clean up actions needed for our area. 

These are the current Beneficial Use Impairments listed for the Lower Green Bay and Fox River:
  • degraded fish and wildlife populations
  • loss of fish and wildlife habitat
  • degraded benthos (bottom dwelling insects, crustaceans, worms, etc.)
  • degraded phytoplankton / zooplankton populations (floating microorganisms)
  • eutrophication or undesirable algae
  • beach closings / recreational restrictions
  • degradation of aesthetics (offensive water odor, unsightliness, etc.)
  • restrictions on fish and wildlife consumption
  • restrictions on dredging activities
  • bird or animal deformities or reproductive problems
  • restrictions on drinking water or taste/odor problems
  • tainted fish and wildlife flavor (suspected)
  • fish tumors and other deformities (suspected)

While many of the “Delisting Criteria” written by the agencies are reasonable targets, several are serious attacks on our ability to work on issues in the future. 

Just a few examples:

Swimming - The Beach Closings / Recreational Restrictions BUI would be delisted “when public swimming beaches within the AOC are open for swimming for 95% of the swimming season (between Memorial day and Labor Day) for any 5 year period based on Wisconsin Coastal Beach monitoring protocols for E. Coli monitoring and meet the blue-green algae target for 95% of the swimming season.”

This is an extremely weak standard, because there is only one official “public swimming beach” in the entire AOC, at Communiversity Park by UW-Green Bay.  No other waters of the river or bay would be addressed, despite the fact that many private shoreline owners, boaters, skiers, anglers, hunters and other outdoor enthusiasts frequently swim or dip in the waters outside official beaches, and often use the waters in spring and fall also, not just in summer.  The rule allows waters to be unsafe for swimming 5% of the time.  Warning systems are haphazard or non-existent for alerting the public to those times.  Parents couldn’t be sure their kids wouldn’t get a serious reaction or infection 5% of the time.  The agencies claim swimmers would be protected by whether our AOC is included on the list of impaired waters due to pathogen contamination or blue-green algae in the most recent Wisconsin Impaired Waters list, but those samples are taken far too infrequently and in too few places to provide true swimming guidance on a day-to-day basis.

Fish Warnings - The Restrictions on Fish and Wildlife Consumption BUI would be delisted when: “Fish and wildlife consumption advisories are the same or lower than those in the associated Great Lake or appropriate control site.” 

Our AOC would be defined as “unimpaired” even when we have serious local health warnings against fish eating.  Up to 70% of the PCBs in the main portion of Lake Michigan and more  in Upper Green Bay came from the Fox River, and that contamination would insulate our area from being considered impaired.  It makes no sense.  In addition, the governments approved a BADLY weakened Fox River and Bay clean up plan which will allow fish advisories to continue for more than 30 years in the river and more than 100 years in the Bay (…and if the sediment caps fail, who knows how long it will be?)  If we’re impaired, it’s because they allowed it.  They must not be allowed to escape the “impaired” label, and their failure, by defining it away.

Human Health - There is no specific "Beneficial Use Impairment" for human health though it clearly should be a key factor weighed in several BUIs.  It's truly shocking that we have had no good epidemiological human studies of local health measures related to the river and bay, other than a handful of children's studies.
    Some data show that we have elevated rates of certain types of cancer, diabetes, respiratory and other illnesses in our area that could be related to local water pollution (plus other exposures) but none of the proposed delisting criteria require ANY human health studies prior to delisting.
    The fish advisories are used as a surrogate for human health protection, but this is grossly inadequate because only a handful of chemicals are measured in the fish.  The water and sediment criteria are also weak from this perspective.
    It's time for our elected officials and regulatory agencies to conduct DIRECT studies and measurements of human exposures and illnesses which may be linked to these exposures.  The delisting criteria must be modified to include requirements for these studies.

Dredging Restrictions
- The Restrictions on Dredging Activities BUI would be delisted when “All remediation actions for known contaminated sediment sources are completed and monitored according to the approved remediation plans, the remedial action goals have been achieved, and institutional controls have been implemented.”  

This proposal is an outrage, because they’re saying that because they’ve done a so-called "cleanup" and have a dredging PLAN, then impairments no longer exist.  In fact, commercial dredging of the 17 mile shipping channel will be heavily restricted 10 years from now, even after the cleanup is supposedly done.  The extensive and scattered sediment caps chosen by the corporate PCB polluters for the Fox River cleanup will close at least 3 miles of the shipping channel and severely restrict future dredging in many other sections of the river.  Commercial dredging of the shipping channel will also face continuing disposal restrictions due to residual dredge spoil contamination allowed by the government.  If we’re impaired, it’s because the DNR and EPA allowed it.  They must not be allowed to escape the “impaired” label, and their failure, by defining it away.

Deformities & Reproductive Problems
-  The Bird or Animal Deformities or Reproductive Problems BUI could be delisted:  If fish tissue or other food sources (e.g. insects and amphibians) concentrations of contaminants of concern identified in the AOC are:  (a) at or lower than the levels known to cause reproductive or developmental problems in fish, fish-eating birds, and mammals, or (b) are not statistically different than Lake Michigan. 

This is similar to the fish warnings above.  If our AOC has deformities and reproductive problems, then we’re impaired. Period.  Contamination and deformities elsewhere are NOT an excuse for those problems here!  Also,  contaminant levels must  not be allowed to persist at levels  known to cause problems.

Drinking Water
– The EPA pushed HARD to delist our area for Restrictions on Drinking Water or Taste/Odor Problems, on the grounds that there aren’t any communities using our AOC for drinking water.  They said that as long as the 2 pipelines to Lake Michigan are in service and groundwater supplies are used, that we could be delisted. 

The local technical committees who were drafting these criteria saw how ridiculous this was, and fixed it to a commonsense measure of local water quality and whether standard treatment could make river or bay water safe for drinking.  We need to watch closely to ensure that EPA doesn’t change it back.

Rare and Endangered Wildlife Species
-  There are several good wildlife targets proposed, but endangered species are neglected. Our area could be delisted and considered unimpaired when “A balance of diverse habitat types exists within the AOC that supports all life stage requirements of fish and wildlife populations including … habitat for state or federally listed species (special concern, threatened, or endangered).” 

Habitat is the only focus.  There is no mandate to create and implement a recovery plan to establish sustainable populations of rare listed species, which might require extra efforts, such as stocking, breeding inducements, predator control, etc.  More importantly, there is no mandate that such a plan be proven successful before our area could be delisted.

-  The Degradation of Aesthetics BUI would be delisted when: “Monitoring data within the AOC and/or surveys for any five year period indicates that water bodies in the AOC do not exhibit unacceptable levels of the following properties in quantities which interfere with the Water Quality Standards for Surface Waters:  (a) Substances that will cause objectionable deposits on the shore or in the bed of a body of water shall not be present in such amounts as to interfere with public rights in waters of the state or impair use.  (b) Floating or submerged debris, oil, scum, or other material shall not be present in such amounts as to interfere with public rights in waters of the state or impair use.  (c) Materials producing color, odor, taste, or unsightliness shall not be present in such amounts as to interfere with public rights in waters of the state or impair use”

The problem here is interpretation.  When such vague words are used, it’s too easy for bureaucrats to say “There’s no standard violated, so you’re free to swim in it,” even when a normal person would say the water smells awful, is too warm, and looks disgusting.  A criteria needs to be added saying, “A professional survey of a random, representative sample of 1,000 people living within the AOC community and who come in contact with the waterway finds that at least 90% of the respondents feel river and bay waters are aesthetically acceptable” before our area can be delisted.  Artificial warming of the water should also be considered an aesthetic impairment.)

Suspected Impairments – Rather than investigate the last two impairments and determine whether they are true problems, the EPA is dropping them.  But local fishermen have definitely complained of local fish taste problems in the past, and studies by the U.S. Fish & Wildlife Service have found elevated levels of fish tumors in our area.  The agencies should have to conduct surveys and take a respectable number of samples.  They should have to prove local tumor rates are no longer elevated above natural background levels.  Problems should not be dropped without proof.

Evidence for Delisting - Many of the proposed criteria fail to specify how much measuring must be done, and for how long, before an impairment could be delisted.  So, permanent delisting might occur after just one favorable year or one favorable measurement, despite the fact that problems could resurface the next year or the next time a sample is taken.  This must be fixed to ensure that adequate monitoring is done and improvements persist at least 5 years before delisting.

Dishonest Public Involvement Process - The DNR and EPA rigged the so-called "public input process" for these delisting criteria - to stifle public awareness and comments, and to reinforce the agencies' choices.  (For details, click here.)
Overall, this delisting proposal is offensive because it is dishonest and will block good work in the future.  The agencies propose to violate the plain meaning of the word “impaired” and mislead the public about the safety and health of their river and bay. 

We need our government to tell us the true conditions and aim for a true healing of our waterway.  Instead, the agencies are trying to hold us back and keep us at an “average” level of Great Lakes pollution, pulling a rug out from under our Remedial Action Plan.

Successful, true elimination of impairments should be the ONLY test of whether we still have an “Area of Concern,” regardless of conditions at other Great Lakes sites.

Please Write TODAY!

Please mail your comments to the DNR right away, by August 6, 2009, to:

Ms. Erin Hanson
Wisconsin Dept. of Natural Resources
2984 Shawano Avenue
Green Bay, WI 54311

You are welcome to send in our pre-written comment letter, or use it as an example for your own personal letter.


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Fox River Watch is a project of

Clean Water Action Council
2484 Manitowoc Road, Green Bay, WI 54311 
Phone: 920-468-4243 

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CONTENT BY: Rebecca Leighton Katers
WEB DESIGN BY:  DataScouts
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