Anti-degradation
v. Legalized Water Pollution:
Tennessee Waters
February
26, 2017
Stan Olmstead
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| Nolichucky River South of Greeneville |
Federal and State water quality law protects us from water
contamination, improves the health of our rivers, streams and lakes and assures
the ecology of our national and states waters have healthy aquatic life. However,
it doesn’t work as well as it should and our national waters remain polluted
and it’s aquatic life in jeopardy. The Federal Water Pollution Control Act (Clean Water Act) CWA, 1972, administered by
the Environmental Protection Agency (EPA) has its goal within Section 101 of
the Act: “to restore and maintain the chemical,
physical, and biological integrity of the nation's waters by preventing point
and nonpoint pollution”. The CWA preamble declares: “Our nation’s waters should be swimmable and fishable”, by 1975. Its goal was to
eliminate discharge of pollutants to our waters by 1985, that waters would
protect the propagation of fish, shellfish and wildlife and that toxic
pollutant discharge be prohibited. The CWA oversees a myriad of water pollution
issues but in differing ways. Point source pollution and non-point source pollution are listed in different Sections of the Act.
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| Waste Discharge for Davy Crockett State Park |
Tennessee
also has water quality law, the Tennessee Water Quality Control Act (TWQCA); 1979,
T.C.A. 69-3-101 that recognize: “the
waters of Tennessee are the property of the state and are held in public trust
for the use of the people of the state, it is declared as public policy that
the people of Tennessee, as beneficiaries of this trust, have a right to
unpolluted waters”. In the exercise of its public trust over the waters of
the state, Tennessee has an obligation to take all prudent steps to secure,
protect, and preserve this right. It is further declared that “the purpose of this is to abate existing
pollution of the waters of Tennessee, to reclaim polluted waters, to prevent
the future pollution of the waters, and to plan for the future use of the
waters so that the water resources of Tennessee might be used and enjoyed to
the fullest extent consistent with unpolluted waters”. Additionally, Tennessee has rules and
regulations associated with Anti-degradation; rule 0400-04-03-.06 specifies the
allowance of pollutants to enter states waters to fully protect existing uses.
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| U.S. Nitrogen LLC Intake/Outfall Location |
The CWA Section 303 requires states adopt water quality standards for waters of the United States within their applicable jurisdiction. Such water quality standards must include, (1) designated uses for all water-bodies within their jurisdiction, (2) water quality criteria necessary to protect the most sensitive of the uses and (3) anti-degradation provisions. The Nolichucky River at river mile 20.8 and the location of U.S. Nitrogen discharge of processed waters are “Essential Tennessee Waters” and its use is for industry, livestock and irrigation, domestic water supply, fish and aquatic life, wildlife and recreation.
Anti-degradation
is an important tool that states use in meeting the CWA requirement that water
quality standards protect the public health and welfare, enhance the quality of
water, and meet the objective of the Act in Section 101. EPA’s regulation
requires that states adopt anti-degradation policies and identify implementation
methods to provide three levels (tiers) of water quality protection:
1)
Tier 1: Existing water uses and the level of water quality to protect those
uses.
2)
Tier 2: High quality waters (Exceptional Tennessee Waters).
3)
Tier 3: Outstanding national resource waters.
The State shall develop and adopt a
statewide anti-degradation policy and identify the methods for implementation.
The anti-degradation policy and implementation methods shall be: (1) Existing
in stream water uses and the level of water quality necessary to protect the
existing uses shall be maintained and protected. (2) Where the quality of the
waters exceed levels necessary to support propagation of fish, shellfish, and
wildlife and recreation in and on the water. Quality shall be maintained and
protected unless the State finds, after full satisfaction of the
intergovernmental coordination and public participation provisions of the
State's continuing planning process, that allowing lower water quality is
necessary to accommodate important economic or social development in the area
in which the waters are located. In allowing such degradation or lower
water quality, the State shall assure water quality adequate to protect
existing uses fully. The State shall assure that there shall be achieved the
highest statutory and regulatory requirements for all new and existing point
sources and all cost-effective and reasonable Best Management Practices (BMP) for
non-point source control. (3) Where high quality waters
constitute an outstanding National resource, such as waters of National and
State parks and wildlife refuges and waters of exceptional recreational or
ecological significance, that water quality shall be maintained and protected.
(4) In those cases where potential water quality impairment associated with a
thermal discharge is involved, the anti-degradation policy and implementing
method shall be consistent with Section 316 of the Act.
The basics of anti-degradation
regulations (Tier 1) does not allow loss of an existing use nor does it allow
water quality to drop below levels needed to maintain an existing use. Existing uses are “those uses actually
attained in the water-body on or after November 28, 1975.” This is an
important distinction—waters must be protected at a level reflecting the
highest use achieved since November 1975 regardless of whether water quality
has declined since then or whether that use is recoverable. The basic
protection provided by Tier 1 applies to all waters, regardless of use
designation. The second level of protection is for high-quality waters.
High-quality waters are defined in 40 CFR 131.12(a)(2) as waters where the
quality of the water is better than the levels necessary to support propagation
of fish, shellfish, and wildlife and recreation in and on the water. Thus, Tier
2 waters are those recognized as being naturally better than water quality
criteria for aquatic life and recreation, and they should be maintained in that
condition.
Pollutant concentrations in the three
tiers of anti-degradation policy are very low, biological communities are known
to be representative of fauna having minimal human impacts. The higher water
quality of Tier 2 waters can only be
degraded by a wastewater discharge or other activity if the state finds, after
public participation and intergovernmental review, that allowing lower water
quality:
1.
Is necessary to accommodate important
economic or social development in the area in which the waters are located
2.
Protects existing uses
3.
Meets all applicable statutory and
regulatory requirements for all new and existing point sources
4.
Uses all cost-effective and reasonable
BMPs for nonpoint source control;
5.
Uses the most reasonable and effective
methods of pollution prevention, control and treatment; and
6.
Meets applicable water quality criteria
and the whole effluent toxicity limit.
EPA stresses the importance of
identifying and protecting Tier 2 waters, as these are the ones most likely to
be affected by potentially degrading activities. Finally, the third and highest
level of anti-degradation protection is for outstanding national resource
waters (ONRW), typically include waters within National and State parks
wildlife refuges or waters of exceptional aesthetic, recreational, or
ecological significance. If a state determines that the characteristics of a water-body
constitute an ONRW, and designates a water-body as such, those characteristics
and water quality must be maintained and protected. Only minor and temporary
decreases in water quality are allowed in Tier 3 waters. Anti-degradation applies to many important
regulatory activities within the state such as NPDES permitted activities,
Section 404 permits implemented through Section 401 certification, and
sometimes other regulated activities through local ordinances, state permitted
or managed activities on public lands, and non-point source controls, including
cost effective and reasonable BMPs.
So here is the “rub” of the Tennessee anti-degradation policy
of waters and discharges of pollutants, …unless
important economic or social development in the area in which the waters are
located. The degradation of
waters for economic and social needs is placed in the federal and state statute
for a single purpose and that is to allow industry and human activity to
continue to pollute. Part of this overall method of allowing pollution is
conducted through a long and established phrase and a "nemesis" of science: “the solution to pollution is dilution”.
Tennessee and federal law allows diluted pollution to remain
legal by De minimus in conjunction with the 7Q10
rule, which if less than 5%
impact to the river by withdrawal or discharge does not show a quantitative or
cumulative impact then it is an acceptable discharge, this is a statistical
reference of a stream at a low flow for 7 consecutive days in a 10 year
recurrence period. So by allowing the use of De minimus and the 7Q10 rule
pollution continues to occur. The de
minimus definition assumes dilution a solution and does not measure the
cumulative nature of chemicals in the waters. In addition to the two dilution
methods mentioned above there is also the Mixing
zone, which presumes that, “fish and aquatic life will have ample space
to avoid the mixing zone” this is a more concentrated level of pollution at
discharge that mixes with the river waters and then meets the de minimus
requirement.
So
after review of the CWA and the TWQCA it becomes obvious that each law is
written to deliberately allow pollution. Although there is a complex process to
administer that pollution, U.S. Nitrogen LLC became the catalyst for this
review of Tennessee waters and studies, focused primarily on the Nolichucky
watershed since U.S. Nitrogen has been granted a NPDES authorization to
discharge polluted waters at an outfall at river mile 20.8 which contain high
levels of Nitrates, Nitrites and metals. The allowance is due to economic
importance and the dilution principles of de
minimus, 7Q10 rule and mixing zone. In essence TDEC and EPA require that
waters not be degraded but put in place allowances for degradation.
The
Nolichucky River is 115 miles, 150 miles if you extend up the Toe and Cane
Rivers of North
Carolina with a watershed of 1762 square miles (64% in TN and
36% in N.C.). On the watershed is a vast amount of human activity. Mining,
logging, cattle, crop agriculture, roadways, businesses, homes, septic tanks,
waste treatment plants and a multitude of other activities impacting the
surface waters and watershed. Of the Nolichucky tributaries of Tennessee, 660
miles of the river are listed through Section 303(d) of the CWA as being
impaired. There are numerous NPDES permits allowing direct discharge of
polluting waters into the river. Cattle access the river freely fouling the
river system with soils and wastes. Septic tanks leach contaminants into the
soils at an unknown quantity of pollutions. Industry and municipalities are
altering their authorized discharge outfalls from waterways with high TMDL
levels to large streams with less TMDL.
As seen with U.S. Nitrogen changing its request to use Lick Creek,
heavily impaired, to discharge directly to the Nolichucky River or Jonesborough
rerouted its waste treatment plant discharge from Little Limestone Creek to the
Nolichucky. Nuclear Fuels Services and Aerojet Rocketdyne have had unauthorized
releases of radioactive material into the Nolichucky and Little Limestone Creek
respectively. The Nolichucky Dam built in 1913 is now unusable and extremely
difficult to naturalized as more than 8800 acre feet of contaminated mud is
within the lake.
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| Cattle entering waters of the river system |
Our
impact to this vital watershed is continuing and the aquatic health is poor. We
have lost species some are in decline or are listed as threatened or endangered.
The public is in jeopardy to use the water for its intended use, health risks
are present if entering the water or eating the game species from the waters.
The naturalness of the river is nearly gone as mining, railroads, roadways,
farms, industry occupy the majority of the watercourse. Still the State is
authorizing permits for legal discharge of pollutants through the NPDES process
and U.S. Nitrogen LLC is but one.
The
more you know of the river the more you understand that TDEC and EPA have used
the “letter” of water quality law to undermined the intent of the law. The
Nolichucky River like many river systems of the Nation is degraded and
continues to be degraded by legal pollution and the authorizing agencies assure
that degradation is not occurring.
This continued process degrades our waters and the loss of a viable
aquatic system within our state and national waters and deprives us of our
civil right to have healthy waters and healthy aquatic systems.
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| Conway Bridge and Save the Nolichucky |
