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HomeMy WebLinkAbout2013-04-09 - Agendas WATER/SEWER/SOLID WASTE COMMITTEE AGENDA Tavele-dile MEETING DATE OF APRIL 9, 2013 THE CITY OF FAYETTEVILLE,ARKANSAS ARKANSAS Committee: Chairman Mark Kinion; Aldermen Sarah Marsh, Martin Schoppmeyer, Alan Long Copy to: Mayor Lioneld Jordan; Sondra Smith, Don Marr, Paul Becker, Lindsley Smith, Jeremy Pate, Chris Brown, Lynn Hyke, Shannon Jones, Peggy Bell, Tim Nyander, CH2M Hill, Allison Huskey From: David Jurgens, P. E., Utilities Director A Fayetteville Water, Sewer and Solid Waste Committee meeting will be held on April 9, 2013, 5:15 PM, following the City Council Agenda Session, in room 326, Fayetteville City Hall. Proposed topics include: Agenda Items Reguirina Committee Approval 1. Intergovernmental Aareement between City of Fayetteville and Northwest Arkansas Regional Planning (NWARP) amendment to continue the Intergovernmental Working Group (IWG) cooperative regional efforts relating to the Second Statement of Joint Principles, the Stressor Response Study contained therein, and to monitor, evaluate, and report the likely effects that future proposed changes to stream standards and wastewater discharge requirements may have on Northwest Arkansas, with an authorized expenditure of up to $40,000 with a $5,000 contingency, is being developed. The related memo is attached. STAFF REQUESTS THIS BE FORWARDED TO THE CITY COUNCIL when the full amendment is developed. Agenda Items for Committee Information 2. Ca ital Proiect Update Contract Description Contractor Cost Complete CIPP 2013 Swr Rehab-Cured in Place Pipe City Wide Insituform $ 330,000 0% 265 W/S Relocation &36"Wtr Line, Hyy 265 Gamey Const $ 5,062,135 100.0% Hwy 16 Hw 16 Water/Sewer Relocations Edwards Const $ 1,589,482 85% _ Hwy 112 Garland Ave Water/Sewer Relocations Goodwin & Goodwin $ 1,575,497 100.0% Hwy 265 N Hwy 265 North Water/Sewer Relocations Seven Valles Const $ 1,419,659 77.9% Compost Solid Waste Compost Slab, Phase 2 Benchmark Const $ 347,882 100.0%, SE Fay CIPP SE Fayetteville/Elkins Outfall CIPP Design In-House Bid Opens May 9"' Wtr Trans Water Transmission Line Easements McClelland En rs Acquisition Underway Hwy 16 Bride Water Line Relocation West Fork Bride McClelland En rs Design 7Und;rwalNoland Generator Noland Generator U rade Desi n In-House Bid A ril/Ma 2013South Mtn PS South Mountain Pum Station Rehab Desi n/Const n-House $ 200,000 Project is substantially complete, meaning the work can be used to execute its mission. 3. Illinois River Phosphorus Arkansas Oklahoma Second Statement of Joint Principles and Actions. The Attorney's General for the States of Arkansas and Oklahoma announced on February 20, 2013, the two States had signed a Second Statement of Joint Principles and Actions. This relates specifically to water quality and phosphorus in the Illinois River. This agreement is very significant and beneficial to all of Northwest Arkansas, and for Fayetteville in particular. Various agencies — both governmental and not— are working to establish the funding sources for the stressor— response study the States agree to conduct in the Statement. The Northwest Arkansas cities will certainly be called upon to provide some of the funding. In my view, the Second Statement of Joint Principle is good news for Fayetteville and Northwest Arkansas because: • It allows us to continue to operate under the existing NPDES 1.0 permitted phosphorus limit • The Study will finally establish a scientific basis for the water quality standards in the Illinois River • It grants us 6 or more years before any upgrade would be required at the West Side WWTF 0 3 years for the agreement o at least 3 more years for new requirements after the next post-study NPDES permit is issued • Phosphorus removal technology is steadily improving - becoming more effective and lower in cost • The threats of protracted legal battles are removed W-S-SW ,ommitteeAgenda 9Aprl3 WATER/SEWER/SOLID WASTE COMMITTEE AGENDA MEETING DATE OF APRIL 9, 2013 The Second Statement is good for the environment because: • The stressor response study will establish a scientific basis for phosphorus limits in the Illinois • Future funds can be spent on real sources of problems rather than unsubstantiated possible sources • If the WWTF phos limits need to change, we know the monies spent meet a valid need. • If the WWTF phos limits meet environmental needs now and do not need to change, then we do not have to spend funds on improvements that produce minimal or no environmental benefit. A more detailed summary and the Second Statement of Joint Principles and Actions are attached. 4. Illinois River Phosphorus Evaluation process is continuing, with EPA developing a Total Maximum Daily Load (TMDL) study for the basin. The most recent USEPA hosted public information session was at the Jones Center in Springdale November S. The most recently published timeline is below. • Model Calibration Jan/Feb 2013 • Baseline load modeling February/March 2013 • Sensitivity/uncertainty analysis March/April 2013 • Peer review April 2013 • P load reduction scenarios modeling April 2013 • Draft TMDL May 2013 • Public meetings summer 2013 • Final TMDL Fall 2013 The Intergovernmental Working Group, which consists of the four largest Northwest Arkansas cities and both counties, hired Wright Water Engineering to overwatch this portion of the EPA work to ensure the data and assumptions that go into the model are valid. Bill Honker, Director, Water Quality Protection Division for USEPA Region 6, sent the following email to Director Marks, ADEQ, regarding the second statement of joint Principles and Actions: As you stated, my office certainly plans to support the current agreement, as we did with the original 2003 agreement. At this point, it appears the three year stressor response study will be running concurrently with the completion of our modeling work and the development of any subsequent TMDLs. As you noted, the model will allow us to plug in different endpoints, should there be a change in WQS in the future, and any draft or final TMDLs could be revised accordingly. "The Second Statement of Joint Principles and Actions includes an agreement between the States to maintain current discharge limitations for total phosphorus for point source dischargers in the Illinois Basin through February 20, 2016. The agreement also contains language addressing expansion of existing discharges, as well as new dischargers, during this period. We plan to support that agreement. If for some reason the completion of the stressor response study is delayed well beyond the 2120116 date, well have to confer with both States and assess the most appropriate method to deal with the permits at that point in time." Based on this, staff believes that we will continue to operate under the current NPDES permits in the Illinois River basin until the TMDL process is completed using stream standards numbers from the stressor response study. We also believe that the above TMDL schedule will be delayed up to three years. 5. West Fork Wastewater Connection Update. Planning and design work continues for actions required to connect West Fork to Fayetteville's sanitary sewer collection system. The following actions are underway or completed, either internally or through coordinated efforts with West Fork's engineer (McClelland Consulting Engineers): • City Council passed resolution of intent to allow West fork to connect to Fayetteville's system; • reviewed and commented on preliminary engineering plans for physical work; established design standards and criteria; • solidified approximate new system ownership boundary between the two cities; • determined easement ownership requirements; • installed flow monitors in the West Fork system in order to evaluate flows and peak infiltration and inflow rates; W-S-S W CommitteeAgmda 9Apr13 WATER/SEWER/SOLID WASTE COMMITTEE AGENDA MEETING DATE OF APRIL 9, 2013 • contracted for and are well into the development of a wastewater collection system master plan and model (the flow monitors are a subset to this larger effort)to determine West Fork's current and potential future impacts on the Fayetteville wastewater system; • formally requested from ADEQ an increase in our NPDES permitted discharge limit with the next round of NPDES permitting; and • began drafting agreement between the two cities (this cannot be completed until a number of engineering and policy details are determined). 6. 2013 Spring Ward Bulky Waste Clean Ups have been scheduled from lam to 2pm at the below locations and dates. No a-waste will be accepted. Detailed information is on the City's website. ➢ Ward 4—March 23`d at Owl Creek School and Holcomb Elementary ➢ Ward 3—April 6th at Elks Lodge and Vandergriff Elementary (enter off Mission) ➢ Ward 1 —April 27th at Shaver Foods (Behind UofA Indoor Track) and Solid Waste & Recycling Facility ➢ Ward 2 —May 4t" at Woodland Jr. High School and Church of Christ (310 W. Center) 7. Paper Shredding and Prescription Medication Take Back Event. The City of Fayetteville and Project Right Choice are partnering to host a "Paper and Pills" paper shredding and prescription medication disposal event on Saturday, April 27th from 10:00 a.m. to 2:00 p.m. at the World Gym Parking lot located at 2035 N. College Ave. The prescription medication disposal event is part of the National Take Back Initiative 6 sponsored by the DEA. The shredding event is for Fayetteville residents only, and there is a limit of 5 normal- size boxes of paper for drop-off. The prescription medication event is for all residents, including those from outside of Fayetteville. 8. E-Waste Coupon Redemption Program. The City applied for and received an a-waste grant from the state of Arkansas for $25,000 in 2012. The program partners with the Washington County Office of Environmental Affairs using coupons which can be redeemed at the Washington County Household Hazardous Waste site in south Fayetteville where the a-waste is collected for recycling. The current charge for a-waste collected at this site is $5 per unit. The coupons are printed showing the $5 value for recycling of a-waste at the site. Coupons are available through the Solid Waste and Recycling office and City Administration and are handed out at promotional events, the Mayor's booth at the Farmers Market on the square, school recycling events and many other City and County related events. There are plans for an area-wide a-waste round up this fall, similar to those held in previous years. 9. Prescribed Burns for the Woolsey Wet Prairie, Lake Fayetteville Dam, and Lake Fayetteville Prairie Area were successfully completed in early March. 10. White River Use Attainability Analysis report is being updated — incorporating ADEQ's comments and suggestions—for final submission back to ADEQ. We expect the final report to be completed and submitted to ADEQ within eight weeks. 11. Water/Sewer/Solid Waste Committee Meets next on Tuesday, May 14, 2013, 5:15 p.m., room 326. Attachments: 1 IWG Agreement Amendment Memo Page 4 3 Summary of the Second Statement of Joint Principles Page 5 Second Statement of Joint Principles and Actions Pages 6-14 Water, Sewer and Solidase Committee Agenda Page 3 of 14 W-S-SW CommitteeAgenda 9Aprl3 CITY COUNCIL AGENDA MEMO aye rKta MEETING DATE OF MAY 7,2013 THE CITY OF FAYETTEVILLE,ARKANSAS To: Fayetteville City Council Thru: Mayor Lioneld Jordan Don Marr, Chief of Staff From: David Jurgens, Utilities Director (its Fayetteville Water and Sewer Co i e'e Y ' Date: April 4, 2012 Subject: Intergovernmental Agreement with Northwest Arkansas Regional Planning Relating to the Second Statement of Joint Principles, Stressor Response, and Monitoring Evolving Water Quality Issues RECOMMENDATION Staff recommends approval of an amendment to the Intergovernmental Agreement with Northwest Arkansas Regional Planning to continue the Intergovernmental Working Group (IWG)cooperative regional efforts relating to the Second Statement of Joint Principles,the Stressor Response Study contained therein, and to monitor, evaluate, and report the likely effects that future proposed changes to stream standards and wastewater discharge requirements may have on Northwest Arkansas, with an authorized expenditure of up to $40,000 for the agreement and a$5,000 contingency. BACKGROUND Coordinated through NWARPC,the Cities of Fayetteville, Springdale, Rogers, Bentonville, and Siloam Springs, and Washington and Benton Counties, have been working together in an effort to ensure our interests are fully represented in any future decisions that may be made by the Arkansas Department of Environmental Quality (ADEQ) and EPA Region 6 relating to phosphorus, future proposed changes to stream standards, and wastewater discharge requirements. Using an approved professional selection process,the group has hired several firms to conduct scientific evaluations and to facilitate the group's efforts. Siloam Springs has officially pulled out of the IWG as of September, 2012, but continues to remain active on the subjects involved. Fayetteville's focus is that we are well into many activities that protect our watersheds generally and reduce nutrients very specifically. The Nutrient Reduction Plan, stream bank protection ordinance, low impact development ordinance, aggressive public education campaigns, evaluation of the stormwater utility, and strict stormwater management are all examples of efforts completed, underway, and programmed in the future. We believe these efforts can produce better results for water quality at significantly reduced cost compared to simply reducing the wastewater treatment permit limits. DISCUSSION This amendment updates the agreement and adds in a financial commitment to support the Stressor Response Study which is agreed to within the Second Statement of Joint Principles and Actions between Arkansas and Oklahoma relating to water quality in the Illinois River. This study will produce what Arkansas agencies have been requesting for decades- a scientific based determination of what the water quality standards should be in the Illinois River. This agreement will allow the IWG,through Northwest Arkansas Regional Planning,to provide a portion of the funds needed to fund the study. The study is estimated not to exceed $600,000 total, and will be completed in approximately two years. BUDGETIMPACT $69,856 is available in project 10027. Water,Sewer and Solid Waste Committee Agenda Page 4 of 14 Fville-NWARP Agreement CCMemo Aprl3 THE CITY OF FAYETTEVILLE.ARKANSAS aye ev111e UTIIR'ES U E..AA MENT I rnYenamln.AN 9Pa1 conn H'ns 1'P++'A srs�en3o Ela i9i sis.niv Second Statement of Joint Principles and Actions between the States of Arkansas and Oklahoma Main Points ➢ This is very good news For Fayetteville and Northwest Arkansas because: o It allows us to continue to operate under the existing NPDES 1.0 permitted phosphorus limit o The Study will finally establish a scientific basis for the water quality standards in the Illinois River o It buys us 6 or more years before any upgrade would be required at the West Side W WTF 3 years for the agreement at least 3 more years for new requirements after the next post-study NPDES permit is issued o Phosphorus removal technology is steadily improving—becoming more effective and lower in cost o The threats of protracted legal battles are removed ➢ This is good for the environment because: o The stressor response study will establish a scientific basis for phosphorus limits in the Illinois o Future funding can be spent on the real sources of problems rather than on unproven suspected sources ➢ If the W WTF phos limits need to change,we know the monies spent on those changes meet a valid need. ➢ If the W WTF phos limits meet environmental needs now and do not need to change,then we do not have to spend funds on improvements that produce minimal or no environmental benefit. Summary of the Second Statement of Joint Principles ➢ Effective January 1,2013—December 31,2015 ➢ Existing NPDES permit limits remain in effect(we would continue the 1.0 ppm phos limit, even if a new permit is issued by EPA) ➢ Existing permit volumes may be expanded,as long as the cumulative permitted loading from Arkansas does not increase (Which means any increase in permitted loadings would result in a reduced phosphorus limit. We do not see any need to expand the West Side W WTF for the next 10-15 years.) ➢ Agrees to there being a Joint Stressor Response Study; States agree to be bound by the results ➢ Oklahoma will change the 0.037 standard if the Joint Study produces a phos number that is t 0.010 (thus the range of 0.027—0.047 phos levels would produce no change in standards). ➢ Both states continue current overwatch and regulatory requirements on nonpoint source nutrient sources including litter management distribution ➢ Both states agree to not sue each other, but defer the right to sue to after the Statement expires,and can still sue non-signatory parties including EPA. Y Agreement would be signed by State level agencies,not cities. Terms of the agreement will be reflected in State produced documents that relate to the City, including future NPDES permits Joint Stressor-Response(Scientific) Study Details ➢ Purpose: to provide reliable and objective data and analysis to make scientific based phos limit decisions to protect the aesthetic designated use of the Illinois River ➢ Arkansas agrees to use best efforts to secure an estimated $600,000 to complete a three year water quality study of the Illinois River and watershed. ➢ Determine total phosphorus threshold-response level that creates a real shift in algae growth ➢ EPA Rapid Bio-assessment Protocols and Stressor-Response relationships to establish numeric criteria o Managed by Committee with three from each State appointed by Governor o The sources of funding are not identified NOTE: We do not know how this will impact the EPA Total Maximum Daily Load study which is underway and expected to be completed in 2013. EPA has always completely honored the terms of the first Statement of Joint Principles. Based on informal statements they have made,we believe EPA will do the same the same with the Second Statement of Joint Principles. Second Statement Joint Principles Summary 20F613 Water,Sewer and Solid Waste Committee Agenda Page 5 of 14 SECOND STATEMENT OF JOINT PRINCIPLES AND ACTIONS WHEREAS,this Second Statement of Joint Principles and Actions(Second Statement),dated this 20th day of February, 2013, is intended to extend and augment the Statement of Joint Principles and Action (First Statement) entered in 2003 among named Arkansas and Oklahoma Environmental Agencies, which with the addition of the Oklahoma Conservation Commission and Oklahoma Department of Agriculture,Food and Forestry,are herein after referred to as the"Parties';and WHEREAS, the States of Arkansas and Oklahoma share a common goal of improving water quality in the designated Scenic Rivers; WHEREAS, in an effort to avoid costly and protracted litigation and administrative proceedings which would further strain relationships between the two States and distract from cooperative efforts needed to protect and improve water quality in the designated Scenic Rivers,the two States entered into a Statement of Joint Principles and Actions in 2003(the"First Statement"); WHEREAS, under the First Statement, both states agreed to undertake interim actions designed to improve river clarity and substrate quality in the designated Scenic Rivers and their Watersheds including substantial upgrades to wastewater treatment plants and the development and implementation of regulations restricting the use of nutrients to fertilize lands within the Scenic River Watersheds lands; WHEREAS, Oklahoma agreed in the First Agreement to re-evaluate, by 2012, the 0.037 mg/L Numeric Phosphorus Criterion based on the best scientific information available. WHEREAS,the two States believe it is in their best interests to continue to work cooperatively to protect and improve water quality in the designated Scenic Rivers and to avoid costly and protracted litigation and administrative proceedings which would further strain relationships between the two Slates and distract from those cooperative efforts, NOW THEREFORE,the Parties enter into this Second Statement of Joint Principles and Actions. THREE YEAR EXTENSION OF COMMITMENTS For a period of three years commencing February 20, 2013 and ending February 20, 2016 (the "Term"),the Parties make the following commitments; The States, through the appropriate Parties, will continue to require existing point source dischargers to the Illinois River Watershed with a design capacity of greater than 1 MGD to operate under existing National Pollutant Discharge Elimination System ("NPDES")permits reflecting an effluent limit for total phosphorus of not more than Img/L based upon a 30 day average, assuming the U.S. Environmental Protection Agency does not object, Oklahoma's law prohibits increased loading from existing dischargers and the permitting of new dischargers in Oklahoma into its Scenic River watersheds; existing dischargers may expand and new dischargers may be permitted in Arkansas provided that the cumulative permitted loading of phosphorus (in pounds per day) in the watersheds of any of the six Scenic Rivers will not be increased during the Term of this Second Statement. The States, through the appropriate Parties, will continue implementation and enforcement of regulations governing the use of nutrients to fertilize lands within the designated Scenic River Watersheds. Subject to the limitations of the Parties to bind their respective legislatures,the Parties shall not seek to modify current law or regulations governing the use of nutrients to fertilize lands unless the 1 � Page I Water,Sewer and Solid Waste Committee Agenda Page 6 of 14 i requested modification is at least as restrictive as current law applicable to that State's respective portion of the designated Scenic River Watersheds. To the extent funding is available, the Parties agree to maintain inspectors and nutrient management plan writers for their respective nutrient management regulatory programs for the designated Scenic River Watersheds equal to, if not greater than, current agency staffing levels. Although information collected pursuant to Act 1060 of the 2003 Arkansas General Assembly, quantifying the amount of poultry litter stored, applied and transferred by individual poultry feeding operations is made confidential under the statute, the Arkansas Natural Resources Commission will prepare detailed compilations and summaries of this information and make these compilations and summaries available on at least an annual basis to Oklahoma environmental agencies and EPA. The Arkansas Natural Resources Commission will work with appropriate Oklahoma Parties in determining the format for these compilations and summaries (e.g., information by county, geographic area or watershed), as well as the amount of detail necessary to address reasonable concerns by Oklahoma Parties.Similarly, Oklahoma Parties will work with Arkansas Parties to provide comparable information for poultry operations in Oklahoma. JOINT PHOSPHORUS CRITERIA STUDY COST OF JOINT STUDY--The Arkansas Parties agree to use best efforts to secure appropriate funding in the amount of Six Hundred Thousand dollars($600,000)to complete a three-year water quality study of the designated Scenic Rivers and their watersheds.(the "Joint Study"). Although the Arkansas Parties agree to use best efforts to secure the funding for the Joint Study,the willingness of the State of Arkansas to fund the Joint Study is not,and shall not be,construed by any signatory to this document as a legal obligation of the State of Arkansas. Although the Arkansas Parties have explored some options and believe currently that a sufficient source of funds is available to undertake the Joint Study,the Arkansas Parties may also pursue state, federal and private grants which may be available to fully or partially satisfy the willingness of the Arkansas Parties to undertake the task of finding the funding for the Joint Study under this Second Statement. Failure to secure the funding necessary to complete the Joint Study within the Term of this Second Statement shall provide just cause for termination of the Second Statement, The funds collected to pay for the Joint Study will be placed in the Arkansas-Oklahoma Arkansas River Compact Commission ("CC"). The CC will act solely as a repository for the funds and will disperse the funds at the direction of the Joint Study Committee. MANDATORY STUDY COMPONENTS -- The primary purpose of the Joint Study is to determine the Total Phosphorous threshold response level, in milligrams per liter(mg/L), at which any statistically significant shift occurs in algal species composition or algal biomass production resulting in undesirable aesthetic or water quality conditions in the Designated Scenic Rivers.The Joint Study shall be completed in accordance with U.S. EPA Rapid Bio-assessment Protocols, incorporate quality assurance and control provisions consistent with EPA Guidance on Quality Assurance and Quality Control, and follow EPA's most recent guidance "Using Stressor-response Relationships to Derive Numeric Nutrient Criteria"(EPA 820-S-10-001,November 2010).The Joint Study shall include a sampling population that is adequate to determine the frequency and duration component of the numeric criterion. To the extent data from reference streams or sites is incorporated into the Joint Study, reference streams or sites shall, to the fullest extent possible, be limited to streams or rivers within the same EPA eco-region and comparable to the streams in the designated Scenic River watersheds in terms of stream order and watershed land uses. 21 Page Water,Sewer and Solid Waste Committee Agenda Page 7 of 14 JOINT STUDY COMMITTEE--The Joint Study will be funded by Arkansas and managed by a committee of six(6)individuals-3 appointed by the Governor of the State of Oklahoma,3 appointed by the Governor of the State of Arkansas (the "Joint Study Committee"). Each representative shall be qualified to design and conduct water quality studies. This committee will be authorized to select qualified scientific professionals to conduct the Joint Study and to formulate the specific scope of work for the Joint Study. The qualified scientific professionals selected or any professionals hired by the Joint Study Committee shall not reside in,nor have their principal place of business in,the States of Arkansas or Oklahoma. The Joint Study Committee members will be entitled to solicit input from stakeholders on aspects of the Joint Study such as proposed scopes of work, study protocols, sampling plans, candidate reference streams or sites and the selection of water quality indicators for the purpose of minimizing or avoiding future disputes about the methods and findings of the Joint Study. The Joint Study Committee will establish a reasonable schedule of project deliverables including at least two (2) interim written reports and at least one public meeting each year with stakeholders to provide a measure of transparency and public comment opportunities during the completion of the Joint Study.The final report and all data collected or reviewed doing the Joint Study shall be made publicly available. Failure of the Joint Study Committee to reach agreement an the procurement, execution or conduct of the Joint Study within the Term of this Second Statement shall provide just cause for termination of the Second Statement, USE OF STUDY FINDINGS AND RESULTS -- The final report will provide an objective analysis of the water quality data and identify relationships, if any, between various concentrations of phosphorus in the designated Scenic Rivers and multiple ecological response levels commonly used in the scientific community to describe undesirable aesthetic and water quality conditions. The committee and the scientific professionals employed to complete the Joint Study will be asked to make specific recommendations as to what phosphorus levels,and what frequency and duration components of measure, are necessary to protect the aesthetics beneficial use and scenic river (Outstanding Resource Water) designations assigned to the designated Scenic Rivers, and based on overall stream health which shall include evaluating the relationship,if any, between phosphorous concentrations in the designated Scenic Rivers and biotic indicators of water quality, including primarily algal taxonomic composition and periphyton biomass.The purpose of the Joint Study is to provide reliable and objective data and analysis that will then form the basis for the Parties and EPA to make informed decisions about the scientific merit of any proposed revisions to the phosphorus criterion for the designated Scenic Rivers. The Parties recognize that Oklahoma's total phosphorus criterion of 0.037 mg/L was adopted by Oklahoma to protect its designated Scenic Rivers'"aesthetic beneficial uses" Oklahoma's Water Quality Standards state the phosphorus criterion applies to protect the aesthetic use of the Scenic Rivers. OAC 785:45-5-19(c). Under the federal Clean Water Act, Arkansas has no aesthetic designated use for any waters of the state. Therefore, this Joint Study designed to help identify the phosphorus levels necessary to protect the aesthetic beneficial use of Oklahoma's designated Scenic Rivers shalt not be binding upon or applicable to any study to develop nutrient criteria necessary to protect aquatic life or fish communities within any waters of the State of Arkansas. The States of Arkansas and Oklahoma,acting through their respective Parties, agree to be bound by the findings of the Joint Study. Oklahoma, through the Oklahoma Water Resources Board, agrees to promulgate any new Numeric Phosphorus Criterion, subject to applicable Oklahoma statutes, rules and regulations if significantly different than the current 0.037 mg/L standard. "Significantly different" means the new Numeric Phosphorous Criterion exceeds-.010 or+.010 than the current.037 criterion. If ' the new Numeric Phosphorous Criterion is at or between.027 and.047,then the State of Oklahoma is not I required to promulgate the new criterion in its water quality standards. Arkansas agrees to be bound by and to fully comply with the Numeric Phosphorous Criterion at the Arkansas-Oklahoma State line, 3 � Page Water,Sewer and Solid Waste Committee Agenda Page 8 of 14 whether the existing 0.037 mg/L standard is confirmed or a new Numeric Phosphorus Criterion is promulgated. Parties for the States of Arkansas and Oklahoma shall forego any legal or administrative challenges to the Joint Study. SUSPENSION OF ADMINISTRATIVE PROCESSES AND COVENANT NOT TO SUE In consideration of the commitments by each Party to cooperate in completing the Joint Study, the Parties agree to the following terms which are intended to avoid costly and distracting legal proceedings while preserving all Parties'legal rights. Oklahoma, through the Oklahoma Water Resources Board, will propose a rule amendment that removes the date to achieve full compliance with the Numeric Phosphorus Criterion set forth in Oklahoma Administrative Code 785:45-5-19 and 785:45-5-25(d),provided that such rule amendment will have to be promulgated pursuant to law. Parties for both States will continue cooperative efforts to improve and protect water quality in the Scenic Rivers, and Parties for both States covenant and agree during the Term of this Second Statement not to institute or maintain administrative enforcement actions, judicial proceedings or to take regulatory actions contrary to this Second Statement. The Parties reserve any and all rights,claims or causes of action that presently exist or which may arise during the Term of this Second Statement related to the First Statement,the Numeric Phosphorus Criterion and the TMDL(the"Tolled Claims")but covenant and agree not to initiate legal or administrative proceedings against any other Party to this Agreement related to the Tolled Claims. The Term of this Second Statement shall not be included in computing the running of any statute of limitations potentially applicable to any action brought by a Party to this Second Statement relating to the Tolled Claims. Any defense of laches, estoppel, waiver or other similar equitable defense to the Tolled Claims based on the running or expiration of any time period shall not include the Term of this Second Statement. The foregoing tolling agreement does not constitute any admission or acknowledgement of any fact,conclusion of law,or liability by any Party to this Second Statement.Nor does the foregoing tolling agreement constitute any admission or acknowledgement by any Party that any statute of limitations, or similar defense concerning the timeliness of commencing a legal or administrative action, is applicable to the Tolled Claims. The Parties reserve the right to assert that no . statute of limitations applies to any of the Tolled Claims and that no other defense based upon the timeliness of commencing a legal or administrative action is applicable. GENERAL PROVISIONS Nothing in this Second Statement creates any rights or causes of action for any person who is not a Party to this Second Statement. This Second Statement is not intended to affect any claims by or against a third party. However, if a third party initiates a legal or administrative proceeding related to water quality in the designated Scenic Rivers which is inconsistent with the terms of this Second Statement, the Parties shall take necessary steps to indicate to the Court their support for this document. This Second Statement is effective upon execution by the Parties and without the requirement of filing with any Court and may be signed in counterparts. This Second Statement,together with any provisions of the First Statement not superseded herein, contains the entire understanding between the Parties,and no statement,promise,or inducement made by 4 1 P a g c i I I Water,Sewer and Solid Waste Committee Agenda Page 9 of 14 any Party that is not set forth in this Second Statement,together with any provisions of the First Statement not superseded herein,shall be valid or binding,nor shall it be used in construing the terms of this Second Statement. S� Page I Water,Sewer and Solid Waste Committee Agenda Page 10 of 14 Toren Marks Date Direetor Arkaesas Dqui l nentofRovironmarital Quality 'Z J.Randl Young, P.P. Data ' c Arkalisas Natural RommelOommisgion Water,Sewer and Solid Waste Committee Agenda Page 11 of 14 Teresa Marks Date Director Arkansas Department of Environmental Quality I;and Y1P.E. ate e Arkansas Natural Resources Commission Water,Sewer and Solid Waste Committee Agenda Page 12 of 14 Teresa Marks Date Director Arkansas Department of Environmental Quality J.Randy Young,P.E. Date Director Arkansas Natural Resources Commission Gar Sherrer Date onmOk viary of the Environment J.D,Stro,g � Aate� iixectuiv•Di,ti'ctor Oklahoma Water Resources Board gib_ IL t z.© t3 Steven A.Thompson Date Executive Director O home Department of Environmental Quality Ldward H. Fite, w Administrator ON homn Sao ie Rivers Commission Zo Jim ease Date S r- rand CorrunissionerofAgricullure O he K,t State Board of Agricu€cure Mike TluWls Date Executive Director Oklahoma Conservation Commission 61Paga Water,Sewer and Solid Waste Committee Agenda Page 13 of 14 It is my opinion that approvel of this Second Statement Is within the authority of the Oklahoma officials and agencies execull >e samg. B.Seed Pruitt,AttoYney Goneral of Oklahoma I Mate It Is my opinion the;Opprovsii of this ga"rid Statement is within th®aytbority of ft Arkansas oftlolals and agencies.exectiting the same. `7rt/ _ 2-/g aitst�ht McDnn el Attorney anoral of Arkonsas Date Water,Sewer and Solid Waste Committee Agenda Page 14 of 14