Waters plan still work in progress

Updating draft is agency’s goal

Arkansas environmental officials are still drafting a plan to implement a main provision of the Clean Water Act, about a year since receiving feedback from a stakeholder focus group.

A six-member working group provided feedback to the Arkansas Department of Environmental Quality last summer on its early draft to implement the Clean Water Act's anti-degradation provision.

After hearing from other water-related stakeholder groups and after a few staff departures, the department continues to work on its plan, officials told the Arkansas Democrat-Gazette. An internal working group will share its updated draft with a stakeholder group working on the state's Continuous Planning Process -- a document also required by the Clean Water Act that Arkansas has been trying to update for several years.

The department hopes to convene the Continuous Planning Process group by the end of 2019.

[SIGN UP: Subscribe to the Health and Science email newsletter »https://www.arkansasonline.com/emails]

"The complexity of the plan and the subject matter itself requires thoughtful deliberation," a department spokesman said in a statement to the newspaper.

Feedback from members largely included suggestions to revise how the department determines the level of protection needed by each body of water.

Anti-degradation refers to the effort to stop rivers and lakes from deteriorating.

In 2017, the Democrat-Gazette reported that the state was one of only two in the country that hadn't developed an Environmental Protection Agency-approved implementation plan for that section of the Clean Water Act. The other was Nevada.

In April 2018, the Department of Environmental Quality confirmed that it had begun the Anti-degradation Focus Group with six members representing a variety of interests.

The intent of the focus group was to offer suggestions to the department for a draft implementation plan, feedback that would be used as part of a Continuous Planning Process stakeholder group.

Arkansas has not submitted an EPA-approved Continuing Planning Process document for Clean Water Act compliance since 2000. Federal law does not require periodic revision, but the state has been working to update its document for the past several years.

Anti-degradation is one of four parts of the water-quality standards outlined in the Clean Water Act.

Arkansas has an anti-degradation policy outlined in its Regulation 2 water-quality standards, but it has no accompanying plan to implement that policy. The Clean Water Act requires an implementation plan, and the EPA has asked the state for such a plan for years.

The Anti-degradation Focus Group's members were:

• Ellen Carpenter, a retired department water division chief.

• Colene Gaston, an attorney for the Beaver Water District.

• John Bailey, director of environmental regulatory affairs for the Arkansas Farm Bureau.

• Shon Simpson, owner of the GBMc & Associates environmental and engineering firm.

• Anna Weeks, environmental policy coordinator at the Arkansas Public Policy Panel.

• Jim Malcolm, vice president and policy advisor at the FTN Associates environmental and engineering firm.

Malcolm noted that various water-quality stakeholder groups had met in the past year and that department officials said anti-degradation had been set aside while other water-quality efforts were being discussed, such as the impaired water bodies assessment methodology and the Clean Water Act-required triennial review of the state's water-quality standards.

Malcolm also noted the departure this spring of two longtime water-quality office employees, Sarah Clem and Tate Wentz.

"They left a big hole," he said.

Simpson agreed that water-quality tasks and staffing issues led to a delay in the process for an anti-degradation implementation plan. He noted that Wentz was in charge of the effort and that the issue requires a lot of time to understand.

"This is really complicated stuff, and it's an area where you know it will have effects," Simpson said. "You want to get it right."

Simpson said the group had not met in some time, possibly more than a year ago, but that he heard from the department that it was considering modeling its plan after Missouri's.

"Which, frankly, I think is a good idea because they have a very mature program," Simpson said.

WATER QUALITY

According to the Clean Water Act, once a state or tribe has determined what a particular water body's use should be -- such as a fishing or drinking source -- then it is required to take action to prevent any degradation that might prevent the water body from being used for the stated purpose.

The anti-degradation provision of the act says states and tribes also determine the quality of a body of water by labeling it Tier 1, Tier 2 and Tier 3 (the highest). The higher the quality of the water, the more degradation needs to be considered in the permitting process.

Tier 3 waters, typically thought of as water bodies with exceptional recreational or ecological roles, aren't supposed to degrade at all.

Tier 2.5 waters are "exceptional high quality" waters used for drinking water.

Tier 2 waters are considered "high quality," with economic, public health or ecological value, according to the EPA. That means that when significant degradation is expected for such waters, water-discharge permit applicants must offer analyses of alternative discharge methods that would degrade the water body less, or they must explain why economic or social conditions justify a more degrading discharge method.

Tier 1 waters need only to maintain their designated uses.

In Missouri, wastewater-discharge permit applicants are required to evaluate alternatives to their proposals and select the cleanest options that are within a certain percentage of the cost of the original proposals. A permit applicant must use the cleaner alternative even if it costs up to 20 percent more.

Environmental advocates say the anti-degradation provision protects the nation's scenic waterways, but business representatives say implementation of the provision is unlikely to change much other than to require companies and utilities to pay more for engineering studies on cleaner waste technology and disposal methods when applying for discharge permits.

Cleaner-alternative disposal may still allow for some degradation, they say, and water-quality standards already protect a water body from degrading past the point of maintaining its designated use.

The department's plan from early 2018 states that all waters not considered Tier 2.5 or Tier 3 should be considered Tier 2, unless a demonstration shows that the water body is a Tier 1. It defined Tier 1 waters as including, but not limited to, "canals/ditches, storm water control structures and structures purposefully created for effluent conveyance with an existing use" after 1975.

Bailey, of the Arkansas Farm Bureau, said the Environmental Quality Department's definition of Tier 2 waters was too broad, incorrectly classifying streams by type rather than by existing water quality conditions and potentially requiring more permits to do the alternative analysis than is necessary. He also contended that restrictions on drinking water sources -- they cannot degrade more than 10% -- seem "arbitrary and extremely restrictive."

Weeks, of the Arkansas Public Policy Panel, argued that the department should not allow any degradation of Tier 3 waters. Wording specifying that "new or expanding activities may proceed" in Tier 3 waters so long as there's no net increase in pollutant loading above the waters' ability to handle pollution is not adequate protection and "appears to allow permanent degradation," Weeks said.

All six members submitted comments suggesting improvements to the department's proposed "definitions" section as it pertains to each tier.

Members noted that many water bodies currently do not have background or existing water-quality data, and they expressed concern that using baseline or "ecoregion" water-quality values could distort a water body's estimated ability to handle the introduction of pollutants, called "assimilative capacity."

Carpenter, the former department water division chief, contended that the lack of numeric nutrient standards in most of the state's waters complicates the ability to determine what a water body's assimilative capacity would be.

Metro on 07/22/2019

Upcoming Events