We Degrade Our Waters

Anti-degradation v. Legalized Water Pollution:

Tennessee Waters

February 26, 2017

Stan Olmstead

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.

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. 

U.S. Nitrogen LLC Intake/Outfall Location

 An NPDES permit request by U.S. Nitrogen LLC near Greeneville Tennessee to discharge waste waters from their cooling and possessing operation for explosive manufacturing was reviewed and authorized by the Tennessee Department of Environment and Conservation (TDEC) which prompted me to investigate the health of Tennessee waters and the laws that protect surface waters for state residents. To fulfill the intent of the CWA and the TWQCA those within the EPA and TDEC must assure that Anti-degradation of waters is not occurring. Anti-degradation is somewhat complicated so we should start with basics. The strict definition of anti-degradation is preventing or countering degradation, in the case of water quality the degradation of our water resources.

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

Cattle entering waters of the river system

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.

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.

Conway Bridge and Save the Nolichucky