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HomeMy WebLinkAbout173-19 RESOLUTION113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Resolution: 173-19 File Number: 2019-0.173 A RESOLUTION TO REQUEST THAT THE NORTHWEST ARKANSAS NUTRIENT TRADING RESEARCH AND ADVISORY GROUP (NANTRAG) CONSIDER AMENDING THE PROPOSED REGULATION FOR NUTRIENT TRADING TO MORE CLOSELY CONFORM TO THE ATTACHED PROPOSED REVISION WHEREAS, protecting drinking water in Arkansas should be the highest priority for our citizens; and WHEREAS, tourism in Arkansas associated with outdoor activity including fishing, swimming, kayaking and canoeing is the second highest employer in the Arkansas and is increasing at 4-6% per year; and WHEREAS, nutrient trading is a brand new statewide program that must improve and not degrade water quality and is untested in Arkansas; and WHEREAS, the City of Fayetteville is one of the four Arkansas cities that is a member of NANTRAG and has paid for legal services to develop the proposed nutrient trading regulation; and WHEREAS, the City Council agrees with the Arkansas Legislature that nutrient water quality trading can potentially achieve water quality goals with greater efficiency and cost savings; and WHEREAS, experience in other states demonstrate that nutrient water quality trading programs, including the use of credits, off sets, and compliance associations, can result in quicker and more efficient achievement of water quality improvement goals; and WHEREAS, nutrient water quality trading should be encouraged and facilitated by the development of stringent regulations and verifiable permit terms; and Page 1 Printed on 8/7/19 File Number. 2019-0473 Resolution 173-19 WHEREAS, the Fayetteville City Council supports the nutrient trading concept, has reviewed the currently proposed nutrient trading regulation and has determined that some changes would be advisable to better protect our reservoirs, environment, endangered species and waterways. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby requests that NANTRAG consider amending portions of the proposed regulation for Nutrient Water Quality Trading as shown on the attached proposed revisions by Council Member Teresa Turk and approved by the Water, Sewer and Solid Waste Committee. PASSED and APPROVED on 8/6/2019 Attest: Sondra E. Smith, City Clerk Treasu�Qr`� 1TR7��i,, `O� ARK.... 4- �ti• ;mss FAYETTEVILLE: y, 9R � P • Z.� '�. �s .• KAN' .•J.� 111101 11�`♦♦♦ Page 2 Printed on 817119 City of Fayetteville, Arkansas 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Text File — / File Number: 2019-0473 Agenda Date: 8/6/2019 Version: 1 Status: Passed In Control: City Council Meeting File Type: Resolution A RESOLUTION TO REQUEST THAT THE NORTHWEST ARKANSAS NUTRIENT TRADING RESEARCH AND ADVISORY GROUP (NANTRAG) CONSIDER AMENDING THE PROPOSED REGULATION FOR NUTRIENT TRADING TO MORE CLOSELY CONFORM TO THE ATTACHED PROPOSED REVISION WHEREAS, protecting drinking water in Arkansas should be the highest priority for our citizens; and WHEREAS, tourism in Arkansas associated with outdoor activity including fishing, swimming, kayaking and canoeing is the second highest employer in the Arkansas and is increasing at 4-6% per year; and WHEREAS, nutrient trading is a brand new statewide program that must improve and not degrade water quality and is untested in Arkansas; and WHEREAS, the City of Fayetteville is one of the four Arkansas cities that is a member of NANTRAG and has paid for legal services to develop the proposed nutrient trading regulation; and WHEREAS, the City Council agrees with the Arkansas Legislature that nutrient water quality trading can potentially achieve water quality goals with greater efficiency and cost savings; and WHEREAS, experience in other states demonstrate that nutrient water quality trading programs, including the use of credits, off sets, and compliance associations, can result in quicker and more efficient achievement of water quality improvement goals; and WHEREAS, nutrient water quality trading should be encouraged and facilitated by the development of stringent regulations and verifiable permit terms; and WHEREAS, the Fayetteville City Council supports the nutrient trading concept, has reviewed the currently proposed nutrient trading regulation and has determined that some changes would be advisable to better protect our reservoirs, environment, endangered species and waterways. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: City of Fayetteville, Arkansas Page I Printed on 8/712019 File Number: 2019-0473 Section l: That the City Council of the City of Fayetteville, Arkansas hereby requests that NANTRAG consider amending portions of the proposed regulation for Nutrient Water Quality Trading as shown on the attached proposed revisions by Council Member Teresa Turk and approved by the Water, Sewer and Solid Waste Committee. City of Fayetteville, Arkansas Page 2 Printed on 81712019 Legistar ID No.: 2 o14 -Oy -73 AGENDA REQUEST FORM FOR: Council Meeting of August 6, 2019 FROM: City Council Member Teresa Tuark ORDINANCE OR RESOLUTION TITLE AND SUBJECT: A RESOLUTION TO REQUEST THAT THE NORTHWEST ARKANSAS NUTRIENT TRADING RESEARCH AND ADVISORY GROUT' (NANTRAG) CONSIDER AMENDING THE PROPOSED REGULATION FOR, NUTIENT TRADING TO MORE CLOSELY CONFORM TO THE ATTACHED PROPOSED REVISION APPROVED FOR AGENDA: City Council ember Teresa Turk City Attorney Kit Williams Approved as to form —!A/19 Date Ave, J/ P 2 A Z,.a I I Date RESOLUTION NO. A RESOLUTION TO REQUEST THAT THE NORTHWEST ARKANSAS NUTRIENT TRADING RESEARCH AND ADVISORY GROUP (NANTRAG) CONSIDER AMENDING THE PROPOSED REGULATION FOR NUTRIENT TRADING TO MORE CLOSELY CONFORM TO THE ATTACHED PROPOSED REVISION WHEREAS, protecting drinking water in Arkansas should be the highest priority for our citizens; and WHEREAS, tourism in Arkansas associated with outdoor activity including fishing, swimming, kayaking and canoeing is the second highest employer in the Arkansas and is increasing at 4-6% per year; and WHEREAS, nutrient trading is a brand new statewide program that must improve and not degrade water quality and is untested in Arkansas; and WHEREAS, the City of Fayetteville is one of the four Arkansas cities that is a member of NANTRAG and has paid for legal services to develop the proposed nutrient trading regulation; and WHEREAS, the City Council agrees with the Arkansas Legislature that nutrient water quality trading can potentially achieve water quality goals with greater efficiency and cost savings; and WHEREAS, experience in other states demonstrate that nutrient water quality trading programs, including the use of credits, off sets, and compliance associations, can result in quicker and more efficient achievement of water quality improvement goals; and WHEREAS, nutrient water quality trading should be encouraged and facilitated by the development of stringent regulations and verifiable permit terms; and WHEREAS, the Fayetteville City Council supports the nutrient trading concept, has reviewed the currently proposed nutrient trading regulation and has determined that some changes would be advisable to better protect our reservoirs, environment, endangered species and waterways. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby requests that NANTRAG consider amending portions of the proposed regulation for Nutrient Water Quality Trading as shown on the attached proposed revisions by Council Member Teresa Turk and approved by the Water, Sewer and Solid Waste Committee. PASSED and APPROVED this 6`" day of August, 2019. APPROVED: ATTEST: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer Council Member Teresa Turk Proposed Revisions to NANTRAG Draft August 1, 2019 DRAFT 2 ARKANSAS NUTRIENT WATER QUALITY 3 4 TRADING REGULATION 5 SECTION 1. GENERAL PROVISIONS. 6 (A)This regulation shall be known and shall be cited as "The Arkansas Nutrient Water Quality 7 Trading Regulation". 8 (A)(B) Scope and Purpose: This regulation is intended to improve and protect water quality 9 through the reduction of phosphorous and nitrogen, or to meet a TMDL requirement 10 throughout the State of Arkansas. Demonstration and documentation of the continuous 11 improvement in water qualily is a key goal and metric of this regulation. Nutrient tradingis s to 12 be restricted to only trades being conducted from a non -point generator to NPDES permit 13 holders. An NPDES permit is required for the trading entity to participate under this regulation. 14 (9)(C) Definitions: 15 (1) "Department" or "ADEQ" means the Arkansas Department of Environmental Quality 16 or its successor, unless otherwise specified. 17 (2) "Director" means the Director of the Arkansas Department of Environmental Quality 18 or the Director's designee, unless otherwise specified. 19 (3) "Watershed" means an area of land that drains into a water body area no larger than a 20 10 9 digit USGS Hydrological Unit Code (HUC). 21 (4) "Baseline" means the most stringent of existing conditions or the water quality 22 standards for the credit generating stream. The minimum baseline requirements shall 23 be not less than six in -stream measurements in the nutrient trade generating stream Council Member Teresa Turk Proposed Revisions to NANTRAG Draft August 1, 2019 section within the past calendar year of water quality parameters including but not 2 limited to: phosphorous, nitrate, dissolved oxygen, pH, temperature, and turbidity, prior to approval of the project. 4 (5) "Nutrient credit" means a nutrient reduction that is expressed in pounds of phosphorous 5 or nitrogen. 6 (6) "Numeric Nutrient Water Quality Criteria" means a numeric quantity that identifies the 7 phosphorous and nitrogen limits (mg/1) in a water body that are protective for 8 designated beneficial uses. 9 {£D) This regulation is adopted under the authority of Act 335 of 2015, codified at Ark. Code 10 Ann. §§ 8-4-232 and 8-4-233. 11 "(E) Participation in any Nutrient Credit Generating Project under this Regulation shall be 12 purely voluntary_ 13 W}(F) Pursuant to Ark. Code Ann. § 8-4-232(E): 14 (1) the Department has the responsibility to develop a schedule of user fees by calculating 15 the reasonable costs to the Department of evaluating, implementing and enforcing the 16 nutrient water quality trading, credit, and offset program; and 17 (2) the Commission may establish a schedule of user fees to be collected by the Department 18 from persons or entities applyin f�pproval of, generating, or utilizing credits and 19 offsets from the Nutrient Credit Generating Projects in order to comply with the 20 National Pollutant Discharge Elimination System permit limits. 21 ((G) Nothing in this regulation shall be construed to limit or impinge any requirement of any 22 other State or Federal environmental law or regulation. 2 Council Member Teresa Turk Proposed Revisions to NANTRAG Draft August 1, 2019 SECTION 2. AUTHORITY TO APPROVE NUTRIENT CREDIT GENERATING 2 PROJECTS FOR USE AS OFFSETS. The Director of the Arkansas Department of Environmental Quality shall have authority to approve 4 Nutrient Credit Generating Projects as sources of nutrient credits that may be used by National Pollutant Discharge Elimination System, permit holders to offset their nutrient discharges when 6 determining compliance with water quality -based permit limits. 7 SECTION 3. APPLICATIONS FOR APPROVAL OF NUTRIENT CREDIT GENERATING PROJECTS. 9 (A) AU person seeking approval of Nutrient Credit Generating Project shall submit an application 10 for approval to the Director. The application shall include: 11 (1) A description of the location, including the watershed and the 12 -digit USGS HUC, 12 where the credit -generating project will be implemented; 13 (2) A description of the watershed, including but not limited to a geographic boundary and 14 the 12 -digit USGS HUC, in which the credits are proposed for use as offsets; 15 (3) A list of the NPDES permitted point sources that may use the credits as offsets along 16 with a copy of each NPDES permit; 17 (4) The time period in which the credit -generating project may be used as an offset; 18 (5) Scientific and numeric Eevidence that the credit -generating_ project will result in a 19 reduction of nutrient discharges below the existing baseline requirements; 20 (3)(6) Applicant shall provide all information and documentation such as previous and 21 planned manure application, previous use and anticipated use, and any other 22 information on the stream section and adjacent application fields to be used toend 23 credits. Council Member Teresa Turk Proposed Revisions to NANTRAG Draft August 1, 2019 (6)(7) Evidence and calculations used to derive the credit quantity and credit ratios 2 resulting from the crediting -generating project, including an explanation of the 3 methods used to address uncertainty factors; 4 (7)(8) A description of the methods by which the implementation, performance, and 5 operation and maintenance of the credit -generating project will be verified and 6 documented, and the identity of the person or entity responsible for documenting the 7 verification; and 8 (8)(9) A certification, signedy the applicant, attesting that the application is true and 9 accurate to the best of the applicant's knowledge and belief. 1 l Pproposed Nutrient Credit Generating Project shall be submitted to the Arkansas Natural 12 Resources Commission for review at the same time that the application is 13 submitted to the Director of the Arkansas Department of Environmental Quality. 4*—,,ueh 14 the Arkansas 15 Natural Resources Commission will send a copy of their review of the project and 16 reporting any comments or recommendations resulting from that review to the Director of the 17 Arkansas Department of Environmental Quality_ 18 (C) Applications submitted to the Director of the Arkansas Department of Environmental Quality 19 shall comply with the public notice procedures and requirements for an individual permit 20 under Regulation No. 8. Applications shall also be publicly noticed through electronic notice 21 and publication on the Arkansas Department of Environmental Quality website. All 22 information shall be stored posted in the ADEQ database and available for public review on 23 the ADEQ website within three (3) days of ADEQ receiving any information. 4 Council Member Teresa Turk Proposed Revisions to NANTRAG Draft August 1, 2019 (D) Prior to approval, the Director will send a copy of the application, her written findings, and 2 decision to EPA for review. After review of the application the Director may approve the Nutrient Credit Generating Project as a source of nutrient credits that may be used as offsets 4 as requested, disapprove the Nutrient Credit Generating Project as a source of nutrient credits, 5 or approve the Nutrient Credit Generating Project as a source of nutrient credits subject to 6 specific conditions or limitations. 7 (E) Unless expressly granted for a shorter or longer term, the approval of the Nutrient Credit 8 Generating Project as a source of nutrient credits shall be limited to a term of five years from 9 the date of the Director's decision, but may be renewed or extended upon application in 10 accordance with procedures in this section. 11 (F) Nutrient trades shall be prohibited if the watershed contains any of the folloAj 12 (1) A listed Endangered or Threatened Species; 13 (2) Designated Critical Habitat; 14 (3) The stream and/or tributary is designated as an Extraordinary Water Resource (ERW), 15 Ecologically Sensitive Waterbod (�ESW),or Natural and Scenic Waterways; 16 (4) The stream or tributary lie inside a designated nutrient surplus area; or 17 (2}(5) In karst geological areas due to the potential for cross basin (between watersheds) 18 and rapid transport of nutrients to sensitive environments. 19 (3-)(6) Is absent of a numeric nutrient water quality criterion for phosphorous and nitrogen. 20 {£)(G) In deciding whether to approve an application for approval of a Nutrient Credit Generating 21 Project, the Director shall consider, among all other relevant factors: 22 (1) The scientific and numeric evidence provided in the application to support the factors 23 identified in Section 3(A); 5 Council Member Teresa Turk Proposed Revisions to NANTRAG Draft August 1, 2019 (2) The calculation used to derive the credit quantity and credit ratios resulting from the 2 credit -generating project, including an explanation of methods and supporting 3 scientific literature used to address uncertainty factors; 4 (3) The methods for verifying and providing access to data and information when 5 requested by ADEQ or any citizen of Arkansas the reliability of the implementation, 6 performance, and operation and maintenance of the credit -generating project; and 7 (4) The experience and capacity of the persons who will be responsible for implementing 8 and verifying the credit -generating project. 9 (-F4(H) The Director's decision approving or denying a Nutrient Credit Generating Project shall 10 include written findings regarding the factors identified in Section 3(A) and specify the 11 conditions and limitations that will apply to any use of the nutrient credits generated. At a 12 minimum, the conditions applicable to an Nutrient Credit Generating Project shall specify 13 (1) The watershed in which the credits generated by the Nutrient Credit Generating 14 Project may be used as an offset; 15 (2) The time period in which the credits generated by the Nutrient Credit Generating 16 Project may be used as an offset, 17 (3) The method by which implementation, performance, and operation and maintenance 18 of the credit -generating project will be verified, and the identity of the person or entity 19 responsible for documenting the verification; and 20 (4) For projects generating credits by non -point source activity, a minimum credit ratio of 21 4—S 4:1 (projected nutrient reductions or savings to nutrient credits for the project) 22 shall be applied when calculating the credit quantity, R Council Member Teresa Turk Proposed Revisions to NANTRAG Draft August 1, 2019 1 (CO(I) Prior to taking final action on a request for approval of a Nutrient Credit Generating Project, 2 the Director shall cause public notice to be published within the watershed where the credit 3 will be generated and utilized in a newspaper of general circulation and on the Arkansas 4 Department of Environmental Quality's website and current ADEQ water email list. The 5 public shall be allowed a period of not less than thirty (30) calendar days in which to submit 6 written comments. The decision to grant or deny pproval of a Nutrient Credit Generating 7 Project shall include a written response to all issues raised in comments submitted during the 8 public comment period. A copy of the final decisionrg_antin or r denying certification of a 9 Nutrient Credit Generating Project shall be sent to the applicant and each person who 10 submitted written comments within the public comment period. The Director's decision to 11 grant or deny approval of a Nutrient Credit Generating Project shall be subject to the same 12 review and appeal provisions as a final permitting decision under Regulation No. 8. 13 (4440) No Nutrient Credit Generating Project shall be approved by the Director unless the project 14 activity, or discharge reduction involved in the project will r-eduee the nutr ent lead below4he 15 be protective of Arkansas's waterways fish other aquatic 16 species, and demonstrate continuous improvement in overall water qualityby a numeric 17 reduction in nutrients within the nutrient generating watershed. 18 (1) For projects generating credits by non -point source activity, the baseline requirements 19 shall be no less than six in -stream measurements of water quality parameters in the 20 nutrient trade generating stream section in the last calendar year including but not 21 limited to: phosphorous, nitrate, dissolved oxygen, pH, temperature, and turbidity, prior 22 to approval of the project. Water quality measurements will be required to be conducted 23 quarterly at a minimum and the samples analyzed by an approved state of AR certified Council Member Teresa Turk Proposed Revisions to NANTRAG Draft August 1, 2019 1 water quality lab. Water quality samples will be collected by a 3`d party. The non -point 2 source permittee will allow access and will cooperate with all data collection activities 3 and personnel. �r,.,,:o, is ge efating ,...edits by ., 13eifA s e ,,,twit. the baseline 6 (2) If the baseline requirements applicable to a Nutrient Credit Generating Project change 7 after the date the Project is approved, the amount of offset allowed from credits 8 generated by the Nutrient Credit Generating Project shall be reduced to conform to the 9 baseline requirements applicable at the time the nutrient credit is used. The procedure 10 for adjusting the amount or duration of credits allowed from an approved Nutrient 11 Credit Generating Project shall be the same as that used for reopening and modifying 12 National Pollutant Discharge Elimination System permits. 13 (1)(K) The fact that a non -point source project or a point source pollution reduction may be 14 supported in part or entirely by government grants or other third -party financial funding 15 not prevent the project, activity, or pollution reduction from being eligible for approval as a 16 Nutrient Credit Generating Project, where such use is allowed by therg antin agency gency or third - 17 party entity. 18 (JULAll inspections necessary to determine compliance with non -point source Nutrient Credit 19 Generating Projects that cannot otherwise be verified through the procedures outlined in the 20 gpproved Nutrient Credit Generating Project application will be performed by the Afkarrsas 21 Arkansas Department of Environmental Quality. Nothing in 22 this section shall interfere with the Department's authority to conduct compliance and 23 complaint inspections as authorized by statute or regulation. Council Member Teresa Turk Proposed Revisions to NANTRAG Draft August 1, 2019 SECTION 4. RESPONSIBILITY FOR PERMIT COMPLIANCE. 2 (A) Credits generated by an approved Nutrient Credit Generating Project may be used as offsets only when expressly authorized by the National Pollutant Discharge Elimination System 4 permit in question, or a modification of the permit. In addition to all other permit application or permit modification requirements, the application must include: 6 (1) Scientific and numeric E -evidence that the nutrient credits used under the permit 7 modification are approved for use in the watershed into which the National 8 Pollutant Discharge Elimination System permittee discharges; 9 (2) Scientific and numeric Bevidence that use of the nutrient credits as an offset -A44 10 not It table--legali ed adve e effect gg �':*�, will r=vs-z�Jccrr--i�iaiucc2� �� 11 demonstrate water quality improvement in localized areas; 12 (3) Scientific and numeric E -evidence that use of the nutrient credits as an offset wW 13 not result , a net , o o ellutant l,,,,dine , elev nt watershed will 14 demonstrate water quality improvement and a decrease in the net pollutant loading 15 in the relevant watershed; and 16 (4) Scientific and numeric lievidence that use of the nutrient credits as an offset will 17 not hewe a sienifieant adve.-se impaet upen will demonstrate significant water 18 quality improvement within a reservoir that is a drinking water supply source for 19 an existing public water supply system as designated by the Arkansas Department 20 of Health. 21 (B) A National Pollutant Discharge Elimination System permittee that discharges into a watershed 22 identified on Appendix A as an existing drinking water reservoir watershed designated in the 23 Arkansas Department of Health GIS Database shall not be allowed to use credits that have E Council Member Teresa Turk Proposed Revisions to NANTRAG Draft August 1, 2019 been generated outside of the watershed of the reservoir as offsets against its permit limits for 2 nutrients. 3 (C) A pern+kteeAnyone authorized to conduct nutrient trading in Arkansas relying on nutrient 4 credits to demonstrate compliance with its National Pollutant Discharge Elimination System, 5 permit limits retains full responsibility for achieving and maintaining permit compliance. If a 6 Nutrient Credit Generating Project fails to meet the terms and conditions of its approval as a 7 source of nutrient credits, National Pollutant Discharge Elimination System permit holders 8 ma, not of rely on credits generated by the project regardless of the fact that failure of the project 9 may have been attributable to circumstances beyond the reasonable control of the permit 10 holder. 11 SECTION 5: NO USE OF CREDITS OUTSIDE WATERSHED 13 as of ie's,,nl-;_'''e *o,shoa in high the ,oa;*s are 0 ora*ea. Nutrient credits generated 14 by an pproved Nutrient Credit Generating Project may be utilized as offsets only in a 15 watershed defined by a 10 8 -digit HUC in which the credits are generated. 16 SECTION 6: EFFECTIVE DATE. 17 This regulation is effective ten (10) days after filing with the Secretary of State, the State 18 Library and the Bureau of Legislative Research. 10 BEA OFFICE OF THE CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE TO: Mayor Jordan City Council CC: Don Marr, Chief of Staff Tim Nyander, Utilities Director FROM: Kit Williams, City Attorney DATE: August 1, 2019 Kit Williams City Attorney Blake Pennington Assistant City Attorney Jodi Batker Paralegal RE: Proposed changes to NANTRAG's proposed Arkansas Nutrient Water Quality Trading Regulation I am not a scientist nor expert on nutrient water quality trading issues. However, I ask that you carefully review the proposed changes to the regulation to be submitted by NANTRAG (a group of Northwest Arkansas cities including Fayetteville which has been working on difficulties surrounding nutrient issues for our wastewater treatment plants and possible solutions for many years). Please remember our taxpayers need to keep our wastewater plants operating efficiently at reasonable cost. We also all need to be as protective as reasonably possible of our regions most valuable and vital asset, Beaver Lake. My understanding is that major sources of undue nutrient (phosphorus and nitrogen) loading of the watershed for Beaver Lake come from overly fertilized urban and rural land. Our wastewater plants do an excellent job of removing these nutrients from our wastewater and even more stringent requirements on our wastewater plants would be extremely expensive. Thus, our money would probably be better spent encouraging land owners to use better water quality protection measures. All regulations should be designed to accomplish as much as reasonably possible of the desired goal while not becoming so cumbersome or expensive that the proposed program will not be used. That is certainly the case here as the legislature has ensured that nutrient trading shall be "a matter of voluntary choice on the part of each participant in the nutrient water quality trading program or arrangement." A.C.A. §8-4-322(d)