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Drip GRIP: Water Resources Board takes public comment on proposed rule changes (ECapitol)
Tyler Talley 

(eCap) The Oklahoma Water Resources Board (OWRB) took public comments Tuesday on proposed rule changes it intends to consider next month, the most discussed item being a potential change to the state's water quality variances.

Tuesday's meeting represented an opportunity for members of the public at-large to present oral or written arguments, data or any other views regarding new and amended rules that the board will consider and potential act on at its Feb. 19 meeting. 

Once approved, those rules will join a legion of others submitted from other state agencies for consideration by the Legislature in an omnibus bill. In recent years the Legislature has failed to take up the rules package, leaving its consideration up to the governor. 

Rules up for consideration by the OWRB include, but are not limited to: amended fees as well as changes to well driller and pump installer licensing. Each of these items drew at least a couple of comments from stakeholders and members of the public in attendance. 

The proposed change that drew the most attention and public comment however would see changes to Oklahoma's water quality variances, which are temporary permits that allow entities discharging into public waters to exceed specified amounts of nutrients or chemicals while the variance is in place. 

Current statute sets strict limits on how variances can be issued, what reasons they can be issued and limits them to be issued for three years. The agency argues the current model is completely ineffective and too restrictive, having never been used in the state. 

The proposed rule, which does not include a time limit, aligns Oklahoma's variance regulations the Environmental Protection Agency's (EPA) current less stringent variance requirements and would give OWRB more leeway in how it issues variances. 

It does not create a variance for a specific pollutant for a specific water body and instead allows the agency to create what it deems a more effective variance in the future. 

Any variances would still have to go through the administrative rules process as well as be subject to public comment and approval by not only OWRB but the Legislature, governor and EPA too. 

OWRB Chief of Water Quality Bill Cauthron said the agency received "a lot of comments" regarding concerns the change would reduce water quality protection and allow pollution. 

"Let me say this in no uncertain terms: a variance does not reduce water protection or allow pollution.

That is not what the water quality standards do," Cauthron argued. "A variance does not allow a discharger to discharge at a greater than they discharge now. If they discharge at a level of X, it does not allow them to discharge more than X." 

Cauthron likened a variance to a tool meant to help a discharger make incremental improvements in water quality over time. 

"It's really only for a water body that already has impairment…when it's not meeting its use," he continued. "It makes no logical sense to allow someone to discharge more of a pollutant when it's already not meeting its use. A variance provides a framework and that's all the rules we are proposing for the board does." 

During the public comment period, numerous speakers still expressed concern and anxiety about the proposed change however. 

Ed Brocksmith spoke on behalf of Save The Illinois River (STIR), a non-profit organization chartered exclusively for the presentation of the Illinois River, Flint Creek, Barren Fork Creek, Tenkiller Lake and their tributaries. He, and several others, argued the state's scenic rivers be excluded from the variance process. 

"We're nervous about the variance matter," Brocksmith said. "A variance on water quality limits for us represents a possible violation of the Oklahoma Scenic Rivers Act."

Scenic rivers and Lake Tenkiller, he continued, must have the highest water quality protection possible and the change, if approved, could damage that protection. 

"We ask that you reject the rule allowing the variance to Oklahoma water quality regulations, especially for Oklahoma scenic rivers," he posited. "Designated scenic rivers should not be compromised by showing a variance to meet pollution levels." 

Mark Derichsweiler, vice-chair and legislative coordinator for the Oklahoma branch of the Sierra Club, alleged the change was quickly brought forward to help facilitate one of Oklahoma's concessions to Arkansas in a recent interstate agreement on water quality of the Illinois River and its tributaries, which has been affected by phosphorus from chicken waste and wastewater treatment facility discharges from the neighboring state. 

"These rules as proposed will not contribute to a clean and healthy future for Oklahomans and we urge you to reject them," Derichsweiler said. "This variance process that is now under consideration provides a clear path to letting them [Arkansas] off the hook completely." 

He continued, "This variance, as proposed, absolutely would provide for less stringent criteria if applied to a scenic river. Variances will only lead to more argument, more study and indefinite delay. Any variances for scenic rivers would violate our own laws. The rules should make it clear that any variance is prohibited for scenic rivers." 

Ashley McCray, who recently ran as the Democratic candidate for the Oklahoma Corporation Commission, spoke critically of the proposed variance changes. 

"I think it's incumbent upon state agencies like yourselves to protect citizens, especially considering that federal regulations at the EPA are being weakened…here in Oklahoma, I think we are a special case because we are an oil and gas state. We do need more stringent regulations on our water to protect our communities, to protect our environment [and] to protect our people," McCray argued. "I want to go ahead and ask the board to prioritize people over industry."