This week, Mississippi’s Department of Environmental Quality (MDEQ) held a public meeting on its draft changes to the State’s water quality standards (WQS) and has extended the comment period by 10 days to April 9th. The 2021 changes are part of the Triennial Review of Water Quality Standards that all states are required to do by the Clean Water Act. Mississippi’s draft WQS document is a big deal because it’s been in the works for nearly a decade and is the most significant change to Mississippi water protection regulations in over twenty years.
Federalism is not popular in the states of the Deep South, but having a national set of standards has kept states from engaging in a “race to the bottom” in the discharge permit standards they require of cities and industry. Mississippi would prefer to make its own loose water quality standards to attract new industry, and so would Louisiana and others.
Before the passage of the Clean Water Act in 1972, states were in charge of their own permitting systems. Some had very relaxed requirements and consequently the U.S. had rivers so polluted by industry they could catch fire like the Cuyahoga in Ohio. And rivers across the nation were so impaired that many fish species and other forms of aquatic life were simply absent from entire reaches of some streams. A national standard- the Clean Water Act – has helped produce cleaner rivers over the last 49 years.
On a tele-conference “public meeting” call on March 30th, MDEQ blamed COVID-19 for the absence of public outreach meetings surrounding the release of the Standards document and the meagre amount of background information available to readers and commenters. For such complex and novel additions to the existing agency regulations, all we got was a working draft document released February 12th with strikeouts and added language in red. It was like reading and taking notes about a plate of spaghetti Bolognese.
As soon as we learned of the WQS documents, Healthy Gulf engaged Tulane Environmental Law Clinic (TELC) and Gayle Killam of Water Quality Pathways L.L.C. to review the documents, provide interpretation and assist in producing technical comments. Law students Katie Ricks and Bryant Aristy wrote comments on behalf of Healthy Gulf, supervised by Clinic Director Lisa Jordan. Audubon Society Delta and Pearl Riverkeeper joined Healthy Gulf in comments, and Mississippi River Collaborative submitted comments by attorney Albert Ettinger of Chicago, a Clean Water Act standards expert. Mississippi’s WQS amendments will affect streams that flow into the Lake Pontchartrain basin and the lower Pearl River which affects Lake Borgne and wetlands in three Parishes in S.E. Louisiana.
Healthy Gulf paid for a public records request through MDEQ’s Freedom of Information Act (FOIA) Office. Due to COVID-19, MDEQ staff time must be billed to public records requests since guests can’t work in the records room to manually sort through file material. Our FOIA request returned 166 electronic documents – they revealed that this Triennial Review of WQS began in 2018, based on policy priorities that MDEQ began creating in 2011 with a series of stakeholder meetings. Four main areas of the State’s standards are either expanded or new: Waterbody classifications, designated uses, variances, and “use attainability analyses” (UAA). Some work has been done on the list of toxic substances controlled in discharge permits, and on site-specific criteria and a few other subjects.
The Classification of Waterbodies may be the most accessible subject area of the 2021 amendments and the explanation that works best is that the state has created two additional classification categories that represent steps down in water quality, uses and criteria, and one category that represents a step-up from the status quo.
Until now Mississippi has had five categories of waterbody classifications, ranging from most protective to least: Shellfish Harvest, Public Water Supply, Recreation, Fish & Wildlife and Ephemeral Streams. There is a presumption that all waters in the state should meet the Fish & Wildlife Classification because they sustain fish survival and reproduction; so in theory, the Fish and Wildlife Classification has always been a “floor” for the State’s standards. For each of these five categories there have been designated uses assigned, along with individual criteria that should be met to support those uses.
The Pascagoula River is an example for understanding the status quo under the current (pre- amendment) set of classifications – three apply to it. It has a baseline classification as a Fish & Wildlife stream, and the section from Highway 26 in George County all the way to Smear Bayou in Jackson Co. is classified for Recreation. Downstream of Cumbest Bluff it also has a Public Water Supply classification because the Jackson County Port Authority has a freshwater intake pipe there that sends some of the river’s flow to the Port to be treated and used by the Port’s tenants, like the Chevron Pascagoula Refinery. Each of the three classes has its own set of designated uses and those each have criteria within them that should be met for water characteristics like pH, dissolved oxygen concentration, presence of fecal bacteria, total dissolved solids, etc. For people using the Pascagoula for kayaking or swimming, the Recreation classification carries the designated use of Primary Contact Recreation, meaning that you can swim, wade and get your head under the water and expect to encounter low, “safe levels”(criteria) of fecal bacterial concentrations in the water.
This is what the regulations dictate, but in truth and as a practical matter, the designated uses and their criteria are guidelines only – conditions vary with amount of rainfall, water temperature and other environmental factors. These days, the smart swimmer or kayaker doesn’t go in the water, regardless of its classification, until well after floods recede, never goes in with an open cut, and as a matter of good practice should always put rubbing alcohol in the ears after a kayak dunk or swim, and keep a first aid kit, alcohol and Betadine close at hand during water recreation activities.
The way the 2021 changes were explained to me in a planning call I requested with MDEQ staff goes as follows: prior to now, the Ephemeral Stream classification has been the least protective of designated uses, and because of EPA policy changes, this classification isn’t approved any more. MDEQ needed some new options on classifications for problematic streams that it finds are unable to meet particular criteria.
What the agency has done, and announced in its recent Triennial Review of WQS is create three new classifications: Modified Fish & Wildlife, Drainage Waters, and Outstanding Mississippi Waters. The first two will be a “home” for problematic waterways in lieu of the Ephemeral Waters category and are considered sub-classifications of the Fish & Wildlife category. The Outstanding Mississippi Waters category would be a way to give a slightly elevated and more protective status to streams that are in national or state parks, have important recreational uses, or are possibly among the 11 rivers/creeks that have been designated by the Legislature as state scenic streams. The MDEQ is amending its water quality standards document to add these three classifications as options, but waterways will not be placed in them until the next Triennial Review process, possibly in 2024. This next Triennial Review of WQS will be a real “doozie”, I imagine.
I asked MDEQ on the planning call whether it had a list of streams in mind ready to be placed in either the Modified Fish & Wildlife or Drainage Waters classes in 2024. I was told “there is no list”, and that re-classifications will be done on an as-needed, individual basis. I can name at least three Delta streams off the top of my head that might be re-classified as Modified Fish & Wildlife or Drainage Waters: Porter Bayou, Moorhead Bayou and parts of Deer Creek, and I can’t imagine that MDEQ staff wouldn’t also have some in mind. These three all receive massive amounts of polluted runoff from farm fields, can nearly go dry in the late summer and fall – subject to use for emergency irrigation, and probably have the depleted fish and aquatic insect communities contemplated in the definitions of a Drainage Water or a Modified Fish & Wildlife stream. MDEQ staff said that what they contemplate is actual agricultural ditches to be placed in the Drainage Waters class. But these categories will be MDEQ’s shiny new tools after the agency’s Commission and EPA approve them (both likely) and there is no way to tell how regulators will employ them until we see some waterbodies (streams) selected for reclassification.
What is clear from the new classification scheme is that there will be a set process for changing (downgrading) a stream or waterbody to a Modified Fish & Wildlife or Drainage Waters class and for resetting the designated uses and corresponding criteria for the stream to a less stringent level. Other states have done this same thing and maybe Mississippi is getting around to it late in the game. Federal law has a set of six factors in Federal Register Section 131.10 known as the “10(g)” factors and a stream must meet at least one of them to be considered for re-classification, less stringent uses and criteria. If it does, a document called a “use attainability analysis” or UAA must be completed for the waterbody. There is an economic analysis done as part of the UAA, and it seems that UAAs could either be written by MDEQ or by consulting engineering firms. (More billable projects for engineers, economists and lawyers specializing in waste discharge permits and agency regulatory law)
Our FOIA request also revealed that since 2018 MDEQ has been developing three guidance documents related to the new standards: a guidance on reclassifying a designated use to a less stringent criteria, one on how to write a UAA, and another on water quality variances. Variances are time-limited relaxations of specific criteria either applied to discharge permits or to discrete sections of a stream. They are complicated. For context, in the FOIA documents there was an EPA guidance on variances that included a flow chart that spanned seven pages. It looks like it will be fairly difficult and expensive to look at each candidate waterbody and produce a UAA based on one or more “10 (g)” factors providing eligibility for a classification change, and subsequent re-framing of uses and supporting criteria.
What was clear to me is that those of us writing comments would have benefitted greatly if the guidance documents had been released at the same time as the draft Triennial Review of WQS in February. Healthy Gulf and Tulane Clinic were able to examine the draft guidance documents and use them to write our comments aided by documents released to us in the FOIA, but other comment writers had only the red-line draft to go on. On the public meeting phone call, one speaker was an industrial permit manager who specifically asked for more supporting documentation on the new WQS changes in the Triennial Review. (She probably won’t have to pay $580.00 for MDEQ staff time for her company’s FOIA)
My verbal comments during the phone “public meeting” called for better information about the WQS amendments for everyone, not just for industry and business. The FOIA records contained several informative Powerpoint slide shows on the proposed amendments to MS Water Quality Standards that were presented to various industry and professional conferences over the past 3 years. The Mississippi Manufacturers Association received presentations at both of its annual conferences in 2018 and 2019. It’s clear that MDEQ has been informing some stakeholders more than others. I asked the agency to consider that the people who actually use the streams and waterways in Mississippi also deserve to be informed: the people who buy fishing licenses and boat registrations, plus the kayakers, bass and crappie clubs, river group members, fishing camp owners, land trusts and others. If MDEQ can’t decide who those stakeholders might be, I suggested a proxy – consider every parent or grandparent who ends up taking a child to the pediatrician for a raging ear or skin infection after a weekend spent swimming in one of the state’s rivers or lakes.
Mississippi designated the MDEQ’s Environmental Permit Board as the gatekeeper for the streams or waterbodies that might be elevated into the Outstanding Mississippi Waters (OMW) classification. I suggested that the Commission on Environmental Quality would be a better decision maker here because it would be less affected by the inter-agency and executive branch politics involved in Permit Board decisions. Seven of the eight Permit Board members are mid-level state agency employees and are precisely two phone calls away from Governor Tate Reeves when some lobbyist or utilities lawyer “fixer” calls him to complain – that an OMW designation on “their stream” will prevent the industry they represent from receiving a needed discharge permit. The Permit Board will fold if pushed into these political frays. The OMW designation is going to be tough to do in Mississippi, but in the right place with the right amount of ground preparation and organizing in the Counties where the streams flow, the designation and its protections might work. I’m not holding my breath – nobody tells a water discharge permit applicant “no” in Mississippi without a big fight.
The comment period on the Triennial Review amendments to MS Water Quality Standards is extended until Friday April 9th at 5:00 p.m. and comments can be mailed or emailed to Ms. Kim Caviness, P.E. Chief of the Water Quality Standards Branch, Mississippi Dept. of Environmental Quality, P.O. Box 2261, Jackson, MS 39225 or E-mailed to kcaviness@mdeq.ms.gov
Andrew Whitehurst is Healthy Gulf’s water program director