Short-Term Activity Approvals/Water Quality Standards: Arkansas Department of Energy and Environment – Environmental Quality Division Considering Proposed Changes | Mitchell, Williams, Selig, Gates & Woodyard, LLC

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The Arkansas Department of Energy and Environment – ​​Division of Environmental Quality (“DEQ”) is considering proposed changes to its process for applying for Short-Term Activity Approvals (“STAAs”). “).

The Arkansas Environmental Federation recently circulated a draft of the DEQ’s proposed changes seeking comment.

DEQ’s goal in considering the proposed changes is to ensure that the application process:

. . . simpler, faster and more efficient for permittees and OWQ staff.

“OWQ” refers to the DEQ’s Water Quality Board.

Arkansas Pollution Control & Ecology Commission (“APC&EC”) Rule 2 provides for STAAs that allow applicants (under certain circumstances) to exceed water quality standards (primarily due to turbidity) for works involving activities in waterways.

APC&EC 2.305 notes that a STAA authorization is subject to provisions that such activity is:

. . . essential to protect or promote the public interest and that no permanent or long-term impairment of beneficial uses is likely to result from such activity. Nothing herein shall be intended to supersede existing state and federal permit processes or requirements.

DEQ indicates that activities that may be eligible for STAA authorization include, but are not limited to:

  • Maintenance of wastewater treatment facilities
  • Dredging and filling projects (gravel removal)
  • Construction activities
    • Repair/maintenance of bridges or level crossings
    • Culvert Replacement
    • Pipeline repair/replacement
    • Utility repair/replacement
  • Activities that result in overall improvement or maintenance of beneficial uses
    • Bank stabilization
    • Debris removal
    • Flood control projects

Note that an individual permit under the Clean Water Act or National United States Corps of Engineers 404 may also be required in certain circumstances.

The draft document from the DEQ’s Office of Water Quality lists the following four possible changes to STAAs:

  1. TERM – Rather than the current six-month time frame from the holder notifying OWQ’s Compliance Department of commencement of ongoing business, OWQ is proposing that STAAs be issued for a one-year term without notification of beginning. The one-year term would begin upon approval/issuance of the STAA by the OWQ. The applicant would then have one year from the date of the approval letter to complete the current activity covered by the STAA.
  2. FEES – In accordance with Ark. Code Ann §8-4-234(b) and CPA&EC Rule 9, STAA fees shall not exceed two hundred dollars ($200) for each watercourse crossing, watercourse activity or other qualifying activity. DEQ waives twenty-five percent (25%) of the STAA fee for the state agency, board, commission, or municipality, city, or county. Fees will be assessed based on the terms outlined above, unless other arrangements are mutually agreed to by both OWQ and the licensee, such as a Memorandum of Understanding / Memorandum of Understanding for longer term arrangements .
  3. RENEWALS – If the applicant wishes to continue the activity regulated by the STAA after the expiration date of the letter of approval, the applicant must apply for and obtain a renewal from the STAA. The complete application must be submitted at least thirty (30) calendar days before the expiry date of the STAA letter. Renewals will also be for one-year terms.
  4. FORMALIZATION – Where prudent, OWQ will propose any statutory or regulatory changes necessary to formalize the program. Until then, OWQ will continue to issue STAAs in accordance with existing statutory and regulatory authority.

A copy of the draft DEQ document can be downloaded here.

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