By D.E. Smooth
CNHI News Service
An advisory group considering a nutrient trading program for the Illinois River watershed east of the state line will meet Friday to hear recommended changes approved by Fayetteville, Arkansas, City Council.
The program has drawn criticism from organizations that have been working for years to protect and preserve the Illinois River and the water quality of other scenic streams. Critics and water quality experts say the issue is particularly concerning in Arkansas, which has no numeric standard for nutrients like nitrogen and phosphorus.
Oklahoma established a numeric standard for total phosphorus in an effort to address the degradation of water quality within the Illinois River watershed and for other scenic rivers. Stream overloading of nutrients such as phosphorus and nitrogen promotes vegetative growth, which depletes dissolved oxygen levels, reduces water quality and threatens aquatic life.
Ed Brocksmith, a founding member of Save the Illinois River, said it would be impossible to implement a nutrient trading program without a numeric standard. In theory, such programs allow polluters unable to meet standards to buy offsets, or credits, from those who do, resulting with a cap on the pollutant that enters the water.
Regulation 37, authorized by a law passed by the Arkansas Legislature in 2015, at about the same time the data from a stressor-response study of streams within the Illinois River Basin was being analyzed. By the following year an advisory group made up of an association of professionals from four northwest Arkansas municipalities had been formed, and formal rule-making began January 2018.
The program as proposed by the Northwest Arkansas Nutrient Trading Research Advisory Group has been described by its proponents as vague "by design," avoiding specific requirements in order to get broader participation. The lack of specifics is a cause for concern among critics, who argue that could create loopholes that could be taken advantage of and put water quality at risk.
Fayetteville City Councilor Teresa Turk, who sponsored a resolution earlier this month to Regulation 37, said the proposed rule is like "Swiss cheese." It is "so full of holes it can easily be abused."
Turk is a new member of the Fayetteville City Council who has kept up with the proposed nutrient trading program since its inception and commented throughout. Turk said improving water quality in Arkansas -- particularly in Fayetteville's local watersheds, which include the Illinois River and White River -- is important for her and her colleagues.
"Fayetteville has spent many millions of dollars to stop streambank erosion and to reduce our phosphorous and nitrogen discharge, unfortunately many of the other cities have not done so," she said. "When I discussed and identified the problems with the current regulation -- particularly the lack of instream testing and data collection and the lack of a well-defined area of watershed -- they immediately understood that their Fayetteville constituents would not support the proposed regulation as written."
Turk and others who spoke Aug. 6 during the Fayetteville City Council meeting also referenced lack of a numeric standard for phosphorus in Arkansas. A representative of the Buffalo River Watershed Alliance, which has spent the past six years successfully contesting a permit issued to a hog farm within that watershed, said numeric standards must be required before nutrient trading is considered or "they will leverage this broad subjectivity to serve their interests."
"Arkansas' unenforceable narrative standards potentially allow unconstrained point-source nutrient loading in most areas of the of the state," the alliance states in comments submitted to the Arkansas Department of Environmental Quality. "There are no criteria or standards to ensure that there will not be localized adverse impacts on water quality -- the lack of numeric standards exacerbates this problem."
In her comment to the proposed regulation, Jessie J. Green, White River Waterkeeper, echoed those concerns, saying ADEQ "continues to ignore the narrative nutrient criteria when making attainment decisions." Green said the approval of credit-generating projects "without the necessary safeguards ... would be short-sighted, irresponsible, and put the integrity of our state's waters at risk."
The Beaver Water District, which will be heard by NANTRAG during its meeting Friday, also expressed concerns about the lack of specificity. The district notes in its comments the proposed rule provides definitions for only two terms in an "entirely new regulatory program" and lacks specificity with regard to implementation procedures and protections for drinking water reservoirs.
Brocksmith said the proposed nutrient trade program appears to be an effort by the state of Arkansas to skirt its agreement to abide by the findings of the stressor-response study. That study was undertaken as part of a two-state deal by which the parties agreed "to be bound by the outcome" and "committed to improving water quality" within the watershed.
"The bottom line is we have a limit for phosphorus, and Arkansas is exceeding that limit more than 80 percent of the time at the state line," Brocksmith said. "What needs to happen is the state of Oklahoma needs to rise up and say no more. We have got a limit for our scenic rivers, and it is time you met it."
Brocksmith cited a U.S. Supreme Court ruling issued in the 1980s that held a state has the right to enforce its water quality standards against upstream states. Oklahoma, he said, needs to "stand up" and "enforce that right."
NANTRAG will meet at 1:30 p.m. Friday at the Illinois River Watershed Partnership, 221 S. Main St., Cave Springs, Arkansas.
D.E. Smoot writes for the Muskogee Phoenix.