Environmental Issues Impacting Arkansas/Missouri Municipal Utilities: SEMO-NEARK Annual Meeting Presentation

I undertook a presentation at the May 9th SEMO-NEARK annual meeting in Norfork, Arkansas, titled:

Environmental Issues Impacting Arkansas/Missouri Municipal Utilities (“Presentation”)

The Presentation focused on a variety of federal and/or state (Arkansas and Missouri) issues affecting municipal utilities.

The aspects of the municipality operations that were addressed include power, wastewater, and water facilities.

The specific issues addressed included:

• Arkansas Governmental Reorganization noting formation of the Department of Energy and Environment (which includes Arkansas Department of Environmental Quality [“ADEQ”], Public Service Commission, Tank Advisory Committee, State Geologists)
• Solar Energy
  • AB 1636 (Arkansas)
    • Allow schools to participate in Arkansas Energy Performance Contracting
    • Contracts can go to 25 years
  • SB 145 (Arkansas)
    • Allows third party purchasing so a resident or business can host a solar energy system
    • Solar size limit from 300 KW to 1000 KW
• Missouri Legislation
  • Grants for Utility Projects (increased to $3,000 per connection)
  • Missouri Clean Water Law (exempting agricultural stormwater discharges and return flows from certain clean water permitting requirements in specific situations)
• Clean Water Act
  • Addressing jurisdictional elements
  • Noting Obama/Trump rule WOTUS interpretational proposed changes
  • Does a Discharge to Groundwater Require an NPDES Permit?
    • Addressing recent federal Appellate Court decisions including Maui
      • Pending United States Court review
      • Noting U.S. Environmental Protection guidance issued on the issue
      • Reminder about broader Arkansas/Missouri jurisdiction
      • Impacts of the groundwater/water U.S. issue
      • Note referencing continued environmental organizations suits addressing groundwater until a United States Supreme Court resolution
      • Arkansas Water Quality Trading Update
      • Arkansas Antidegradation Update
      • Arkansas Water Quality Standards/Minerals
      • Arkansas Water Quality Standards/Nutrients
      • U.S. Environmental Protection Agency (“EPA”) approval of Missouri Lakes Numeric Nutrient Standards
• Des Moines Waterworks Lawsuit against Three Iowa Drainage Districts Alleging Nitrate Issues
• Discussion of PFAS’s
  • Noting pending lawsuits
  • Introduced federal legislation
  • States with numerical limits
• Finalization of EPA Resource Conservation and Recovery Act Pharmaceutical Rule (impact on water and wastewater utilities)
• Water Quantity/Equitable Apportionment
  • Memphis v. Tennessee
    • Is groundwater an interstate resource subject to equitable apportionment among the states?
  • Mississippi Complaint challenging pumping by Memphis Light, Gas and Water
    • U.S. Supreme Court appoints magistrate to determine whether Mississippi has sole authority and control over groundwater stored naturally within its borders
• Arkansas Medical Marijuana Rules
  • Issues relevant to the municipal utilities
    • Employee issues associated with the legal use of medical marijuana (note nondiscrimination provision and need to create safety sensitive positions as appropriate)
    • Medical marijuana cultivation and dispensary use of water and wastewater services
    • Significant energy consumption
• Clean Air Act/Arkansas (potential combination of Regulations 18, 19 and 26)
• Missouri/Arkansas Storage Tank Trust Fund (continuing importance)
• Cooperative Federalism
  • EPA prioritization of greater control by the states
  • Greater state responsibility but no additional federal resources
  • Baseline statutes have not changed
  • Environmental organizations challenging EPA decisions
• Criminal/Civil Enforcement including examples such as:
  • CERCLA Section 103 notification requirements
  • OSHA enforcement addressing tank entry and trenching issues
  • Continuing prosecution of knowing environment violations
• Environmental Reporting (Employee First Amendment/Public Employer Retaliation Claim)
• Brownfields (continuing importance of state programs)

A copy of the slides can be downloaded here.