Volunteer public health officials are examining special rules intended to protect residents from nitrate pollution in drinking water, but they’re developing those rules in closed sessions that are off limits to some interested parties.

The policy proposal that the Teton District Board of Health is considering would increase surveillance and create a system to warn when nitrates climb above natural levels, which can indicate contamination of an aquifer from septic systems or other causes. That’s an idea proposed by Wyoming Outdoor Council senior conservation advocate and attorney Dan Heilig, who wishes the special protections weren’t being discussed behind closed doors.

“This raises some concerns about openness, transparency and accountability,” Heilig told the News&Guide. “Given the high level of public interest in this, I think that every step of the way should be public — including discussions between committee members and between the committee and the health district board.”

The Teton District Board of Health’s chairman, Dan Forman, confirmed that the board assigned a subcommittee to drill into Heilig’s proposal, a concept the board unanimously agreed to examine. The subcommittee, he said, consists of four health board members, one short of a quorum for the nine-person body, and so legally it does not need to provide notice of its meetings or open them to the public.

“We pride ourselves in our transparency, but this was a fact-finding mission,” Forman said.

The subcommittee’s findings, he said, will be discussed publicly at the health board’s next public meeting later this month. To date there has been a single formal meeting of the subcommittee that’s examining the proposed nitrates rule, though it’s possible that the group would meet again.

Forman declined to discuss the group’s deliberations in detail. The health board’s subcommittee, he said, consisted of himself, recently departed board member Joe Burke, David Dornan and another board member who didn’t want to be named. The group met in the company of Natalia D. Macker, chairwoman of the Teton County Board of County Commissioners, Chief Deputy Attorney Keith Gingery and a consultant.

Other county commissioners reached by the News&Guide weren’t particularly concerned by the health board holding a closed meeting that wasn’t publicly advertised, which is the custom for subcommittees of county-appointed boards. Mark Newcomb didn’t take issue with that approach so long as the there wasn’t a quorum of the larger board. The subcommittee, he added, also ought to take minutes and submit those to the entire board at a public meeting. Luther Propst didn’t criticize the health board’s process, though he also made the general point that he believes local governments function best when they provide more transparency rather than less.

“I’ve worked in public policy for 30 years or more — yikes — and in my experience the government works best in the open,” Propst said. “Teton County should evaluate all of its processes with an eye toward encouraging open and transparent government.”

In its review the health board subcommittee is examining the feasibility of a proposed rule that Heilig co-authored with Protect Our Water Jackson Hole Executive Director Dan Leemon. The impetus for the proposal is nitrate pollution that has deteriorated the safety of drinking water in some portions of Jackson Hole, especially southern parts of the valley where dense development and septic systems overlap.

“We believe these simple, straightforward measures will help to prevent another Hoback from ever happening again in Teton County,” Heilig and Leemon wrote commissioners and the health board when they pitched their rule last September. “The unfortunate — and enormously costly — situation impacting Hoback Junction could have been avoided by early intervention when it became apparent years ago that nitrate levels in public water systems were trending upwards.”

In the draft rule Heilig and Leemon proposed requiring all of Jackson Hole’s 114 public water systems to register with the Teton County Public Health Department. The U.S. Environmental Protection Agency already monitors those systems, taking regulatory action whenever nitrates in drinking water exceeds 10 milligrams per liter, a federal threshold that when exceeded can cause deformities in fetuses and blue baby syndrome in newborns, a sometimes lethal affliction. But the water quality advocates’ proposal goes above and beyond those national standards, and their idea calls for alerting the public once nitrate concentrations at public water systems exceed 3 milligrams per liter. The rule also calls for an investigation into the source of the nitrate if two monthly tests in a row surpass the 3-milligram threshold or if it’s exceeded three times in a calendar year.

Back in September the health board unanimously agreed to investigate such a warning system, but they didn’t vote to take action because of questions over jurisdiction and which government bodies could pass or enforce the rules.

Forman, a veterinarian at Spring Creek Animal Hospital, said that he’s still making calls trying to come up with some answers.

“I just called one of the heads of the EPA this afternoon, between my appointments,” Forman said last Tuesday. “I had a poor hamster with an eye problem waiting downstairs.”

According to former health board and nitrate rule subcommittee member Joe Burke, county officials have limited ability to go above and beyond federal nitrate regulations. The retired respiratory therapist lost his board seat at the end of calendar year, when county commissioners did not reselect him.

“There’s still a lot of ‘what ifs’, including if, legally, we can do anything,” Burke told the News&Guide. “Very clearly these things that Dan Heilig came up with are not workable. They’re not realistic.

“If we did pass something,” he said, “the department of health and the county commission would not have the personnel or the finances to do that.”

Propst said he’ll be pushing for a “water quality director” on staff at Teton County. Currently, he said, the organizational and regulatory structure for water quality is “highly fractured,” split between the town and county and various planning, engineering and health departments — and that’s not counting the Teton Conservation District, myriad water and sewer districts and state and federal agencies that are involved.

The Teton District Board of Health’s next meeting is set for 9 a.m. Jan. 26. Forman said he was working to get staff at the EPA and Wyoming Department of Environmental Quality into the meeting. Those two agencies, he said, are the “top of the pyramid” and will be “driving the bus with this issue.”

“They’re the lead for us in this process, I think,” Forman said. “In my opinion, and I think for a lot of the board members, our job is to facilitate their work.”

Contact Mike Koshmrl at 732-7067 or env@jhnewsandguide.com.

Mike has reported on the Greater Yellowstone Ecosystem's wildlife, wildlands and the agencies that manage them since 2012. A native Minnesotan, he arrived in the West to study environmental journalism at the University of Colorado.

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