NWAonline

Discharge rules get reaction Some see wastewater nutrient trading as premature

by Emily Walkenhorst November 13, 2018

Establishing a program to trade nitrogen and phosphorous credits among wastewater dischargers is premature without numbers stating what the limits are for those nutrients in Arkansas waters, commenters on a proposed state regulation said.

The complaint -- and many others -- is the same as six months ago, when people first had an opportunity to comment on an earlier draft of the same proposed regulation. Two dozen people or organizations submitted feedback the second time.

Four cities in Northwest Arkansas -- Bentonville, Fayetteville, Rogers and Springdale -- are petitioning environmental regulators to establish a program that allows entities with wastewater discharge permits to avoid exceeding their permit limits by trading with other entities for more wiggle room.

"Nutrient trading," as it's called, allows someone who is below his permit limits for phosphorus and nitrogen to trade the excess allowance permitted to someone else who is above his permit limits or concerned about being above them. Under the proposal, the trades must result in a net reduction of those nutrients being discharged or "loaded" into the water.

In Northwest Arkansas, discharge limits related to a nutrient crackdown in the Illinois River watershed have caused five wastewater treatment plants' permits to be placed on indefinite hold while the utilities find a way to comply. The utilities' permits remain active, despite expiring years ago, under Arkansas Department of Environmental Quality administrative continuances.

Phosphorous concentrations in the Illinois River remain higher than Oklahoma's numeric phosphorous standard for the river downstream.

The cities will respond to each comment and make any modifications they deem necessary before they proceed with the rest of the rule-making process, which requires legislative approval. Gov. Asa Hutchinson approved the first draft of the rule-making in January.

The cities amended their first draft to incorporate suggestions and address common concerns. Most of the concerns are repeats of previous comments or concerns about changes from the first draft to the second draft.

Numerous commenters contended that the new regulation was premature because Arkansas doesn't have numeric nutrient standards for its waters. Arkansas has narrative nutrient standards, which describe the ideal conditions of water bodies.

Arkansas Department of Environmental Quality officials have expressed an interest in establishing numeric standards and have begun evaluating regions of the state but have described the task as arduous.

Arkansas should establish a numeric nutrient baseline measurement where trades are proposed to occur, the Buffalo River Watershed Alliance wrote.

Not having numeric criteria, or even an implementation plan for the state's water anti-degradation policy, means the state can't ensure that a trade will result in a reduction of nutrient loading in a watershed, or protect and maintain high-quality waters, the White River Waterkeeper wrote.

"This lack of numeric nutrient criteria in Arkansas is a fundamental flaw in being able to track and measure the effectiveness of this proposed trading program," wrote Ellen Carpenter, a retired department water division chief.

The cities, and their attorney Allan Gates, have argued for less specificity in the regulation, which would encourage more trades to take place. In their draft response to the last round of comments, they contended that gathering, measuring, establishing and documenting in-stream water quality conditions would be a Herculean effort and "trade prohibitive."

Under the proposed regulation, trades will be conducted using numeric nutrient limits in discharge permits, which may be based on narrative nutrient standards in Arkansas waters or another state's numeric nutrient standards downstream of an Arkansas water body.

The regulation calls those "water quality-based permit limits."

The Beaver Water District disagrees with referring to most total phosphorous permit limits as "water-quality based" because of the lack of numeric criteria, forcing most limits to be "derived from some sort of Best Professional Judgment/technology-related analysis," the district's comment reads.

Commenters also expressed concern about who would inspect a trade.

The Arkansas Department of Environmental Quality director would approve a trade, but who would be responsible for ensuring that the trade is working as planned is unclear, commenters said. Several said the department should have the authority to monitor them if it had the authority to approve the trades and write them into water discharge permits.

The Arkansas Farm Bureau argued that the Arkansas Natural Resources Commission was the better agency of the two to conduct inspections that involved "non-point" sources of discharge, meaning the discharge doesn't come through pipes that empty directly into a water body. Commission staffers already have expertise with non-point sources, which are often farms and ranches, wrote John Bailey, Farm Bureau director of environmental and regulatory affairs.

As a part of their everyday work, the commission handles non-point source best management practices, and the department regulates point sources, Bailey wrote. Bailey asked that language in the first draft giving the commission the responsibility to investigate non-point source trades be re-inserted.

"The proposed language would eliminate regulatory confusion," Bailey wrote.

Bailey asked the Arkansas Pollution Control and Ecology Commission in September to re-insert the language into the second draft of the regulation before it approved the new rule-making process, but the commission declined. Some commissioners expressed concern that two agencies having investigative authority could cause confusion.

The Arkansas Natural Resources Commission submitted a comment in October supporting the old language and stating that staffers were willing and able to inspect trades involving non-point sources.

Other comments conveyed worries that the proposed regulation doesn't account for geographic differences across the state or include sufficiently specific directions on evaluating trades or how the approval of a trade may be appealed.

The Natural Resources Commission and other commenters also argued that any revision of the proposed regulation must go back to the statewide Nutrient Trading Advisory Panel for approval before initiating a rule-making process on it, citing Act 335 of 2015, which authorized the creation of a nutrient trading program.

Metro on 11/13/2018