Bill that could delay state enforcement of water pollution heard by Missouri lawmakers

News-Leader

JEFFERSON CITY — Missouri's ability to intervene in cases of water pollution could be delayed by a bill considered Monday afternoon by state senators.

The proposal could make it tougher for the state to enforce the state's Clean Water Law in cases that involve "non-point" sources, where pollution occurs as a result of a spill or runoff, according to an analysis by the Department of Natural Resources. Missouri law regarding permits treats non-point sources differently than "point" sources, like sewage treatment plants or factories.

A bill sponsored by Sen. Dave Schatz and backed by numerous agricultural groups would change the Missouri Clean Water Law by redefining terms like "water contaminant source." In that case, Schatz's bill would specify that this term means point sources that contaminate state water and "does not include agricultural storm water discharges and return flows from irrigated agriculture."

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The bill also could delay DNR intervention by removing the phrase "reasonably certain to cause" water pollution and instead inserting "causes." Essentially, this would force DNR to wait for pollution to occur before intervening, critics of the bill pointed out.

The wording change could affect the department's ability to "offer cost-share practices or other financial assistance" through grants to ranchers and farmers, DNR says.

"Such a change in definition may also negatively affect any potential point to non-point source pollutant trading programs that could be utilized to assist communities in complying with permit limits," according to DNR. "This could result in costly upgrades for some municipalities and their ratepayers."

DNR noted that because it may only be able to enforce the Clean Water Law after proving pollution, it "may not be able to prevent cases where pollution to waters of the state" could occur and "may not have the ability to collect fines/fees for environmental damages due to spills or releases."

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Schatz, R-Sullivan, presented his bill to colleagues Thursday at a hearing of the Senate Committee on Agriculture, Food Production and Outdoor Resources.

Schatz said his legislation was intended "to make clear and solidify in law the long-held and understood regulatory exemptions for non-point sources" and to underscore "existing DNR regulations that exempt non-point sources' discharges from water pollution permit requirements" as well as aligning state and federal law.

The bill would also increase investor confidence and update Missouri's regulatory environment to promote economic growth, Schatz continued, while leaving DNR the option to pursue cases in which they could prove pollution was occurring.

Non-point sources, Schatz said, could include fields, lawns, "and other diverse sources" which historically aren't regulated "because it's like trying to regulate Mother Nature," he said.

The changes were supported by the Missouri Soybean Association, the Missouri Corn Growers Association, the Missouri Chamber of Commerce and Industry, the Missouri Pork Association, the Missouri Cattlemen's Association and the Missouri Farm Bureau. Lobbyists on behalf of agricultural interests echoed Schatz's remarks about the purpose of the bill and offered their support.

"The chamber recognizes that agriculture and small businesses make up a huge part of what makes the Missouri economy hum," said Justin Arnold, general counsel for the state chamber of commerce. "Anytime you can bring regulatory certainty to small businesses and agriculture, that's good for business."

However, critics said the bill could have potential adverse environmental and legal consequences if enacted as written.

John Madras, the former director of DNR's Water Protection Program, opposed the bill. He said existing law already made it clear that non-point sources were exempt from permitting requirements and the "reasonable certainty" phrase was already a high bar.

"There have been instances where people who collect waste from septic tanks have dumped it on their own property, sometimes near a creek," Madras told the committee, "and it's just sitting there waiting for a rainfall or the water to come up in the creek before you have a disaster downstream. ... This is the part of the law that lets the department prevent pollution before it occurs. If you take that out, you're stuck in an entirely reactive position of needing to see the dead fish before you can take action, and that's not really the way you want this to work."

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Bob Menees, a former Missouri assistant attorney general who worked on environmental cases, agreed with Madras that striking the "reasonably certain" phrase would be "detrimental." Both men cited the legal clause as allowing the state to stop instances where a wastewater treatment facility could have polluted a nearby creek with raw sewage.

"I would loathe to be the assistant attorney general trying to stop this, having to go in front of a judge, not having the ability to say (pollution) is reasonably certain," Menees said, "and therefore getting kicked out of court and having to wait until the pollution already happened and public health problems had already occurred (and) natural resource damages had already occurred."

Missouri's water regulations don't "beg for any sort of authority that's not already there," Menees said. "There's been a dearth of examples for reasons why this should be changed. ... Don't fix what's not broken."

Schatz, who has received campaign contributions from the corn, soybean, pork and cattlemen's advocacy groups over the past few years, acknowledged his bill might need a few tweaks and expressed a willingness to cooperate with the bill's critics.

"Making sure that we have good public policy is the goal," Schatz told the News-Leader after the hearing.

The soybean group brought the current bill to him, Schatz said. He added that he lives on a family farm, noted that farmers live in his district and he has been a supporter of the agricultural community since well before he filed the bill that DNR says could limit enforcement of water pollution.

"The folks that have been supportive in the past, obviously, they tend to prefer my positions on ag ..." Schatz said. "They want someone that obviously has some experience and some background. It'd be difficult for them to go get representation from someone that comes from the urban area to bring a bill of this nature forward."