DEQ takes on new rulemaking powers with funding yet to be approved
By KELLY BOSTIAN
For the CCOF
The state’s most recognized non-profit water quality advocate painted a dire picture for Oklahoma’s scenic rivers Tuesday as the state’s Department of Environmental Quality entered an emergency rulemaking process that revealed it is in an awkward period.
Save The Illinois River co-founder Ed Brocksmith also drew a laugh from the crowd at DEQ headquarters in Oklahoma City. The audience recognized the struggle ahead for DEQ, and that it also gets Brocksmith as an occasional bur under its saddle.
“STIR intends to make public comments at every stage of this process of adopting emergency rules and permanent rules…” he said. “And by the way, congratulations on your new responsibility.”
The meeting was the first hearing in front of the Water Quality Management Advisory Council, which will meet again on August 23 to vote on the emergency rules. In weeks to come the agency plans informal public hearings in Tulsa on Aug. 9 and in Oklahoma City on Aug. 13.
Basically, the emergency rules transfer several water-quality rulemaking powers, some shared, entirely to the DEQ from the Oklahoma Water Resources Board.
Why the change?
The changes stem from the passage of House Bill 3824, which addressed water quality variances, and the accompanying Senate Bill 1325, which covered other water quality rules. The bills passed, were signed by Gov. Kevin Stitt in May, and are effective on Nov. 1. Neither bill allowed for a transfer of funding or staff to manage the transition.
DEQ Water Quality Division Director Shellie Chard said the emergency rules aim to put the agency on track for the transfer of authority prior to the change in the law. Permanent rules will be proposed in January 2023.
The emergency move is necessary because a gap in agency responsibility over water quality rules could trigger Environmental Protection Agency intervention, she said.
Chard emphasized that little, in terms of water quality rules or enforcement, will immediately change.
For now, the agency is doing the best that it can to make sure it is on a stable legal and regulatory footing, particularly with no additional staff to take on the additional responsibilities. One person, with funding pulled from a vacant position, has been working on the transfer, she said.
No financing tied to bills
Chard said it appears the OWRB had at least two full-time staff, plus part-time assistance from several others, to carry out the tasks bestowed upon the DEQ by the legislature.
“We expect to make our case (to the legislature) that we do need additional funding to fully implement the program next year,” she said.
Legislative bill summaries during the past session noted “no fiscal impact” to the state because the work simply switched from one state agency to another. An SB 1325 summary did acknowledge a DEQ estimate that it would need $192,000 for two additional full-time employees, which would match what OWRB was using. That need was not further addressed, however.
While Chard said the immediate focus is on transferring responsibilities, Rep. Carl Newton, R-Cherokee, introduced his HB 3824 with a hint of more immediate change.
He told the House Natural Resources Committee the state needed to make it easier for industries and communities to attain variances.
That is what caught the attention of STIR and other conservation groups.
Why advocates worry
Variances are temporary exceptions granted to an industry or community that needs time to upgrade its water-treatment equipment or build new facilities so their discharges into rivers eventually meet water-quality requirements. It’s a delay that allows for a community or company to make improvements without being shut down or put out of business while upgrades are underway.
But the timing for Oklahoma to allow any variance in a scenic river couldn’t be worse, Brocksmith said.
Arkansas recently sued the EPA over its objection to two water-treatment facility permits that the federal agency said would not meet water quality standards set downstream in the Illinois River.
Annual reports show the phosphorous level in the Illinois River violates set standards 85 percent of the time, he said.
The National Pollutant Discharge Elimination System permit lawsuit filed by Arkansas is based on the process the EPA used in denying the permits, not the standard or the ability of the upstream plants to immediately meet those standards.
Brocksmith said Oklahoma needs to be consistent in demanding its upstream neighbor and at-home facilities meet the long agreed-upon standards set for the Illinois River and Lake Tenkiller.
“Any variance granted in Oklahoma’s scenic rivers would send an enormously powerful and dangerous signal that could be used against Oklahoma and the EPA,” he said.
Kelly Bostian is an independent journalist writing for The Conservation Coalition of Oklahoma Foundation, a 501c3 non-profit dedicated to education and outreach on conservation issues facing Oklahomans. To learn more about what we do and to support Kelly’s work, see the About the CCOF page.