NW Arkansas cities revisit water proposal

Posted: September 16, 2018 at 4:30 a.m.

A group of Northwest Arkansas cities is amending its proposal for a statewide nutrient pollution trading program after receiving dozens of comments from people concerned about its draft state regulation.

Critics said the draft was insufficient in detail and premature without numeric water quality standards to reference, commenters wrote in response to the proposal. Several individuals and groups questioned whether the Arkansas Department of Environmental Quality, with a reduced staff and no dedicated funding source for the trading program, could effectively implement and oversee the program.

Many said they believed the trading scheme had theoretical potential to benefit the environment but argued that could not be achieved with the regulation as written.

The proposal, which would be Arkansas' 33rd environmental regulation but called Regulation 37, is from the Northwest Arkansas Nutrient Trading Research and Advisory Group. The group represents four Northwest Arkansas cities, some of which face crackdowns on nutrients in the Illinois River watershed and have had their permits remain active through an administrative hold by the Arkansas Department of Environmental Quality despite expiring years ago.

Nutrient trading allows for the exchange of nutrient limits between dischargers in the same watershed, which is the area around a body of water that drains into it.

A trade would allow an entity that contributes nutrients to a body of water through discharge or runoff from its land to exchange nutrient credits with another entity that contributes nutrients in the same watershed.

So if a wastewater treatment plant's operators were concerned about staying within the limits of allowed nutrients, they could ask a factory that is under its limits to trade nutrient credits. The factory would be subjected to lower limits because it traded away its excess nutrient allowance to the wastewater treatment plant, and the wastewater plant would be allowed to discharge more.

Too many nutrients, such as nitrogen and phosphorus, can cause algae to grow in bodies of water and harm fish.

Under the proposal, trades would be part of a permit modification process that goes through public notice and comment.

The cities made several changes to their proposal in light of the comments, including giving the department and the Arkansas Natural Resources Commission the authority to implement fee schedules for oversight of the program.

On Thursday, they voted to ask the Pollution Control and Ecology Commission to authorize a new public comment period on the revised draft. The commission next meets Sept. 28.

The draft outlines other major changes. The revised proposal would require operation and maintenance of trading programs to be spelled out in applications and final conditions of trades. It also would mandate a minimum trading ratio of 1.5:1 -- projected reductions to credits given -- when using credits from a source that does not directly discharge into a water body.

The Arkansas Rural Water Association supports the regulation as originally written, arguing that it will allow utilities to have flexibility in their operations.

"Nutrient trading offers a reasonable, practicable and potentially more affordable option to stay ahead of the nutrient limits in" wastewater permits, the group wrote in its comment on the regulation proposal.

Arkansas does not have numeric nutrient standards, but wastewater utilities in the Illinois River watershed have invested in improvements to their discharges as part of a decades-long dispute with Oklahoma about nutrient levels in Oklahoma's portion of the Illinois River.

Some commenters believed the regulation avoided specificity that would help oversee the program.

"Vague, arbitrary, and subjective regulations do not work," wrote Jessie J. Green, executive director and waterkeeper of the White River Waterkeeper organization.

Allan Gates, an attorney representing the four cities, has argued that too-specific regulations in other states have prevented entities from ever engaging in trades.

While the regulation states that applications must include evidence and calculations supporting proposed trades, the cities argued in a draft response to comments supplied to the Arkansas Democrat-Gazette that the rule should not "define, or dictate, what evidence is required and/or accepted." The regulation as proposed "offers flexibility and promotes ingenuity, while also allowing each Nutrient Credit Generating Project to stand or fall on its own merits," the response reads.

Some commenters argued the regulation as proposed does not specify that trades must occur in the same watershed. They were particularly concerned that when a discharger in a watershed with a drinking water source wants to trade for credits with another discharger, the trade would not be required to occur within the drinking water source's watershed.

Arkansas Department of Health officials expressed concern that the regulation as written has the potential to expose public water systems to increased treatment costs because of higher nutrient loads in drinking water sources.

In their draft response to comments, the four cities said they worked with water utilities to come up with new language that specifies that credits generated outside of a drinking water source's watershed would not be allowed for projects inside* the watershed.

Wastewater treatment plants in Rogers and Fayetteville are among five Northwest Arkansas wastewater permits placed on administrative hold by the Arkansas Department of Environmental Quality for needing to meet nutrient criteria.

Fayetteville's permit expired in 2010, and Rogers' permit expired in 2011. The other three utilities are the city of Siloam Springs, the city of West Fork and the Northwest Arkansas Regional Conservation Authority in Bentonville. Their permits expired in 2012, 2012 and 2017, respectively.

West Fork's plant discharges into a tributary of the White River, which runs into Beaver Lake. The other four plants discharge into the Illinois River or its tributaries.

A spokesman for the Arkansas Department of Environmental Quality said in June that the U.S. Environmental Protection Agency encouraged Arkansas and Oklahoma to "administratively continue" permits in the watershed while officials develop a water quality modeling system for the Illinois River.

Beaver Lake is the main drinking water source for Northwest Arkansas, and the Illinois River has been the subject of decades of complaints and litigation regarding excessive nutrients in Oklahoma. Poultry litter has long been accused of being the primary culprit, and the spread of it is banned in parts of 13 Northwest Arkansas counties, but wastewater treatment plants and industrial facilities also have been implicated.

Many commenters asked the cities to define "baseline" water quality regulations that trades need to meet. Some argued that baseline conditions should be current in-stream water quality conditions. The cities disagreed in their draft response, contending that gathering, measuring, establishing and documenting in-stream water quality conditions would be a Herculean effort and "trade prohibitive."

The department and several others who commented on the trading regulation had asked for language that delegated inspection and compliance duties to the Arkansas Natural Resources Commission to be removed, because the department is specifically charged with those activities in the implementation of federal wastewater permitting programs.

Commenters also were concerned the regulation did not account for department resources. The department requested in its comment that the regulation include language that affirms its ability to assess fees to implement the program.

Another commenter, a retired department employee, noted the department's staff has shrunk and others argued a fee system should be in place to fund any staff or resources needed to implement the program. Top-level positions have more than doubled and lower level positions have been cut, the commenter, Ellen Carpenter, wrote.

The department also asked that the scale of the trades be reduced from watershed-wide to streams receiving wastewater discharges to more closely align with permits, but the four cities have argued in their draft response to comments that watersheds are not "too vague" to properly limit trades.

Adopting a nutrient trading scheme without numeric standards for nutrients is getting "the cart before the horse," according to commenters. But the cities argued the lack of numeric nutrient standards was outside the scope of their proposal.

Metro on 09/16/2018

*CORRECTION: A draft proposal for water quality trading regulations specifies that credits generated outside of a drinking water source’s watershed would not be allowed for projects inside of the watershed. A previous version of this article incorrectly stated where the credits would not be allowed.