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After 42 years, Arkansas has not carried out plan to protect state waters from degradation
Federal act’s quality standards to protect rivers, lakes run aground in Arkansas
By Emily Walkenhorst
Posted: September 10, 2017 at 3:43 a.m.
Updated: September 10, 2017 at 3:43 a.m.
Credit: Arkansas Democrat-Gazette/RYAN MCGEENEY
Sarah Clem
More than 40 years after the passage of the federal Clean Water Act, Arkansas remains one of only two states that hasn't carried out the provision that protects a state's most important waters from degrading.
Arkansas has not adopted an implementation plan for "anti-degradation," a major provision of the act's water quality standards that refers to the effort to stop rivers and lakes from deteriorating.
Deterioration can occur in many forms, such as when a body of water has too much dirt or when nutrients like phosphorus or nitrogen build up and form algae.
Anti-degradation is one of four parts for the water quality standards outlined in the act. The others are "designated uses," which requires states to appoint each water body a particular use, such as fishing or swimming; "water quality criteria," which requires states to adopt standards for substances in water bodies; and "general policies," which refers to policies a state can implement related to water quality.
"This has been known for a long time that [anti-degradation] is an integral component, something they have to do," said Jessie Green, a former senior ecologist in the water quality planning section for the Arkansas Department of Environmental Quality and current director of White River Waterkeeper, an advocacy group that works to protect and preserve the White River and its tributaries.
"We definitely have not been trying to maintain the water quality that we have in the state," Green added.
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.
"I seriously question whether implementation of anti-degradation policy ... would have changed the outcome of very many permits," said Allan Gates, a Mitchell Williams attorney who has worked with utilities and businesses on water issues.
But in rare instances, Gates said, anti-degradation processes would create another point that opponents could use to argue against issuing a water discharge permit.
Only Arkansas and Nevada do not have plans to implement anti-degradation strategy for state waters, according to the U.S. Environmental Protection Agency. Arkansas has an anti-degradation policy outlined in its Regulation 2 water rules, 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.
According to the 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 the state or tribe 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 quality 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 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 an analysis of alternative discharge methods that would degrade the water body less or explain why economic or social conditions justify a more degrading discharge method.
Tier 1 waters need only to maintain their designated uses.
States and tribes must adopt anti-degradation policies, and the Clean Water Act further requires an implementation plan for those policies, according to an EPA spokesman.
Experts say an anti-degradation implementation plan would keep clean waters clean but would not improve dirty waters. Without it, clean waters can degrade, just not below the absolute minimum threshold required to maintain their designated uses.
The Arkansas Department of Environmental Quality is in charge of developing an implementation plan, which officials say they've been working on for years. More recently, the department formed an internal working group of water quality and technology staff members that has been meeting for "several months," said Caleb Osborne, a department deputy director who oversees the water office.
Sarah Clem, the department's water quality planning branch manager, said in November that the state evaluated each permit application for potential water degradation but that the department doesn't have an official policy in writing. The department calculates the expected discharge's effect and compares the results with the state's water quality standards and the EPA's health standards. That information is then used to determine permit limits that must be followed to protect a water body's designated use.
The department doesn't fully categorize water bodies or require certain facilities' permit applications to evaluate the potential cost and discharge of alternative construction plans, Green said. That's important, conservationists say, because adding evaluations can enhance the transparency of the public permitting process.
Anti-degradation requirements also provide a safety net where water quality standards are inadequate, Green said.
An evaluation of the proposed permit and alternatives might have changed the terms of what the PECO Processing Plant in Randolph County was allowed to discharge into the Black River, Green said. Part of the Black River, a tributary of the White River, is considered impaired because of its low levels of dissolved oxygen, but the permit doesn't regulate all of the nutrients that could come from the plant and could reduce oxygen levels, Green said. Dissolved oxygen is critical for aquatic life.
There are a lot of good reasons for restricting a facility's discharge above what is absolutely required by water standards, said Albert Ettinger, an attorney who has worked with conservation groups across the country on Clean Water Act issues.
"One is we're not all that happy with our water quality standards," he said. "They're not that protective."
If implemented fully, Green said, anti-degradation would likely require the designation of tributaries of major rivers, such as tributaries of the Buffalo or White rivers, as "high quality waters," or Tier 2 waters.
OTHER STATES
Arkansas and Nevada are the only states without implementation plans 42 years after the Clean Water Act was first amended to include anti-degradation policy.
Implementation plans were explicitly required by a vote of Congress in 1987, but many states adopted plans only within the past decade. Further, environmental advocates argue that many states' plans are incomplete, protecting only some water bodies or implementing only some of the anti-degradation rules.
Missouri and Iowa have anti-degradation implementation plans, developed years ago after a lawsuit and the threat of a lawsuit. Environmental workers in those states believe the plans have kept clean waters pristine but are skeptical the plans have prevented pollution or would have prevented any facilities from getting permits.
Every permit is already intended to maintain a water body's designated use, said Adam Schnieders, water quality resources coordinator at the Iowa Department of Natural Resources.
"It's a minimization rather than prevention, if you will," said John Rustige, environmental engineer at the Missouri Department of Natural Resources. "A facility is going to go into a certain place, and anti-deg doesn't prevent that facility from being constructed. What that says is, 'Are you going to be able to do a better job or not?'"
In both states, 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. In Missouri, the permit applicant must use the cleaner alternative even if it costs up to 20 percent more.
About one-third of applicants end up selecting cleaner technologies in Missouri after the evaluation process, Rustige said. He estimated that engineering fees range from $5,000 to $10,000 for the extra evaluation.
"So we're preserving streams and lakes a little bit with this process," Rustige said. "On the other end, there is a bit of a cost to doing this."
But because a permit applicant isn't necessarily required to pick a technology that won't degrade at all, an anti-degradation plan is sort of a misnomer, according to Jim Malcolm, an engineer with FTN Associates.
"It doesn't stop degradation, but it doesn't let it occur willy-nilly, that's for dang sure," said Malcolm, who is one of seven representatives on the department's working group of industry experts.
STATUS IN ARKANSAS
In Arkansas, anti-degradation has been debated within the Department of Environmental Quality and outside it.
For years, the EPA has asked the department for clear language on how the state implements its anti-degradation policy, according to correspondence with the department obtained by the Arkansas Democrat-Gazette.
The state in 2013 submitted a draft Continuing Planning Process document for water policy that the EPA said was inadequate, in part because of the lack of an implementation plan for anti-degradation. The EPA also has listed the development of an anti-degradation implementation plan among its priorities for the state's use of federal funding in recent fiscal years.
A working group of utility and business groups for more than a year has provided input to the Department of Environmental Quality on the state's water regulations. Those regulations are reported to the EPA in the Continuing Planning Process document.
Green, now-retired department water division director Ellen Carpenter, and a representative of the Beaver Water District drinking water utility have asked to be a part of the group, but department officials have said the group is informal and that the regulations will be opened for broader public comment later in the year.
The group has not discussed addressing anti-degradation, department officials said, and the department will consult a yet-to-be-formed working group on anti-degradation. After that, the Continuing Planning Process will go out for stakeholder review, likely in early 2018, department officials said.
The Continuing Planning Process hasn't been updated since 2000, when it was updated to include an anti-degradation policy but not implementation of that policy.
Clem said in November that the state's Continuing Planning Process needs to include expanded information on anti-degradation. But she and Osborne disagree on whether the department is accounting for degradation in its permitting process.
"In the process of developing a permit, we're ensuring that the criteria are met in stream," Clem said.
Osborne said it is too early to speculate on what the biggest benefits of having an implementation plan are, but he expects that having one would enhance the transparency of the permitting process.
Allowing transparency is pivotal, Green said, because it would allow the public to have greater input on a proposed permit.
"That's a component that we don't have now."
Metro on 09/10/2017