Arkansas Department of Environmental Quality officials will hear public comments this week about the state's latest proposed list of polluted water bodies that require cleanup under the federal Clean Water Act.
Tuesday's meeting is exactly one month before the department is to submit its final list -- called the 303(d) list -- to the U.S. Environmental Protection Agency.
Such lists have sometimes languished after being submitted to the EPA, and bodies of water that the department says are newly polluted or no longer polluted go unaddressed.
Since 2010, the Department of Environmental Quality has submitted three proposed polluted-streams lists, but the EPA has taken no action on them because the agencies are at odds over what the state's water quality standards are or should be.
If the EPA doesn't act on the Department of Environmental Quality's 2016 list, which is up for public discussion through March 11, it would be the fourth list left to idle since the EPA last approved one in 2008.
"It does put us in an odd spot," said Sarah Clem, water quality planning branch manager for the Department of Environmental Quality.
Being included on the polluted list has an impact on a water body's neighbors, including businesses, utilities and individuals.
"It will affect any permits that industry has or wants to have," said Charles Miller, executive director of the Arkansas Environmental Federation, which works with businesses on environmental compliance. "So yeah, there's an impact."
Every two years the department is required to produce a new list of streams that are "impaired" or are no longer impaired, on the basis of department testing and reviews.
A designation of impaired" can trigger a study on the amount of pollutants a stream can have in it and still meet water-quality standards. That study can result in stricter limits in permits for businesses, utilities or others regarding discharging wastewater into a stream. Likewise, removal from the list can prompt the removal of such limits.
Since 2010, the department has suggested adding at least 165 water bodies to the polluted list and removing at least 240 others. Data provided for 2010 don't include a breakdown of which water bodies were added or removed from the list as compared with 2008. Many water bodies are on the lists more than once because some portions of a river or creek may be considered polluted while other portions may not be.
According to Stacey Dwyer, the EPA's associate director for national pollutant discharge elimination systems permits and total maximum daily load, the agency has been trying since 2008 to sort out three things with Arkansas:
• The variation of pollutants in the state.
• The way the state assesses water bodies.
• The way the state has changed its standards.
"It's just a lot of complex issues," Dwyer said. "We want to make sure we're doing it correctly and working with the state."
The Department of Environmental Quality establishes its water quality standards in Regulation 2 with the approval of the department's appellate body, the Pollution Control and Ecology Commission. The department then uses those standards to determine stream impairment and sends along its recommendations to the EPA, which oversees the Clean Water Act 303(d) program. The EPA approves the list or recommends changes to it.
In recent years, the state has added language to Regulation 2 that has changed or clarified the way the state determines whether a body of water is polluted. Changes include allowing certain water bodies to exceed mineral standards in 25 percent of the tests before being considered polluted, instead of 10 percent; applying standards in lakes at 1-meter depth instead of the surface; and clarifying that mineral levels for certain regions -- known as ecoregion reference stream minerals values -- will be used as guidelines and not standards for water quality. That clarification merely reflects how the department has always used those values, department officials said.
Because of Regulation 2's role in making determinations under the Clean Water Act, the EPA must approve any changes made to the language of the regulation. The previous major Regulation 2 changes were approved by the Pollution Control and Ecology Commission two years ago but have not been approved by the EPA.
As an example, the EPA has wanted the state to maintain the ecoregion values as standards for water bodies in the state, according to Jane Watson, associate director with the water quality division for the EPA in Dallas. If Arkansas officials remove those ecoregion values, it should replace them with new ones, Watson said.
"When a state wants to change an approach to water quality, they can do that," she said. "But from a legal standpoint, we need to have a different set of numbers" or something else.
Arkansas Department of Environmental Quality Director Becky Keogh said ecoregion values would be used as guidelines so as to not unnecessarily hurt cities or industry by using data in a way it wasn't intended. Keogh did not work for the department at the time of the regulation change but said she wants to ensure that standards are not "overreaching or unreasonable."
Some stream standards are unnecessary and unreasonably strict, said Allan Gates, an attorney at the Mitchell Williams law firm in Little Rock. Such standards prompt businesses and city utilities to do extensive research on a body of water to determine an easier-to-meet standard that wouldn't negatively impact the environment.
Gates has represented many industries and municipalities seeking permit changes related to water standards before the Pollution Control and Ecology Commission. His latest cases involved the cities of Harrison and Yellville, which wanted to increase the allowable levels of minerals their wastewater utilities were allowed to discharge into Crooked Creek. The city-funded research reviewed by the commission showed no impact from the change.
Gates noted that many people who are concerned about a body of water use the polluted list to get the water body cleaned up. That cleanup likely won't happen until the EPA approves the state list.
"We're working very deliberately with the EPA to make sure the state's standards are being applied in an appropriate manner," Keogh said. "It's all protective of the excellent water quality we have in the state of Arkansas."
Metro on 02/29/2016