The final list of state impaired and polluted water bodies that Arkansas has submitted to the U.S. Environmental Protection Agency reflects a continuation of the disagreement between the state Department of Environmental Quality and the EPA in regard to water quality assessment methods.
On April 1, the department submitted its 2016 list, which the EPA has until April 30 to act upon.
The list is the 303(d) Impaired Waterbodies list required under the Clean Water Act.
The EPA has not approved an Arkansas Department of Environmental Quality list since 2008, citing its disagreement with how the state assesses water quality.
However, even if the EPA does not approve the 2016 list, any stream placed on that list by the state would receive additional water monitoring as required when the state issues wastewater discharge permits to new facilities or renews existing permits.
If the EPA approves the 2016 list, studies could be required on any listed stream to determine appropriate limits for cities, businesses or others seeking permits to discharge wastewater into that particular body of water.
"With regard to EPA approval of the list, all we can say at this point is that we have submitted the list to Region 6 for review and are ready to answer any questions or concerns the EPA may have," department spokesman Doug Szenher wrote in an email to the Arkansas Democrat-Gazette. "We have not yet received any indication of how long the approval process may take."
EPA officials did not respond to a request for comment Friday.
In February, after the state Department of Environmental Quality opened its public comment period in regard to the list, Director Becky Keogh initiated a "data integrity review" related to the list that was essentially a double-checking of data sampling, analysis and interpretation to ensure that regulations and methodology were followed, Szenher said.
"The data integrity review was initiated under the direction of Keogh, both as an extension of her previously expressed desire of having a higher level of scientific review for decisions by the ADEQ -- which will be one of the ongoing duties of newly hired chief technical officer Dr. Bob Blanz -- as well as in response to public comments and questions regarding the agency's methodology for developing the 2016 303 d List," Szenher said.
In its comments to the department, the EPA noted its numerous disagreements but commended the department "for the significant effort expended in assessing the State's waters and appreciates the emphasis Arkansas places on maintaining and enhancing the State's abundant natural resources."
But, the EPA wrote, the state did not include a rationale for removing several streams from the list. Further, the department did not list 33 stream segments that the EPA believes data show are impaired. It cited a state change to a water quality standard that the EPA has not approved yet.
In 2014, the Arkansas Pollution Control and Ecology Commission, which is the Department of Environmental Quality's appellate body, approved changing water quality standards that would allow certain water bodies to remain in quality compliance.
The changed standard allowed up to 25 percent of total mineral samples within a testing period to exceed water quality criteria for a particular body of water. The previous standard was up to 10 percent. The EPA, which oversees the federal Clean Water Act, has not approved the change.
The change came after the state repealed Act 954 of 2013, which removed the default drinking-water designation for state waterways and altered the way the department measures minerals in the water.
The EPA said Act 954 violated the national Clean Water Act, and the federal agency threatened to take over the water-permitting process if the state law remained in place. As a result, lawmakers repealed Act 954.
"To facilitate a clearer understanding for the public," EPA officials wrote in their 303(d) list public comments this year, "ADEQ needs to provide supporting documentation describing how the exceedance rate change (10% to 25%) is an appropriate and scientifically defensible frequency."
Officials with the state Department of Environmental Quality wrote in their response that the change was the result of negotiations with the "regulated community to address issues raised by Act 954."
Also supporting the shift from 10 percent to 25 percent, department officials wrote, was a change in the department's definition of "critical flow" for minerals in 2014 and the removal of a default assumption of flow in permitting for small streams. Before the removal, Arkansas' regulations allowed pollution-discharge permit limits to be set by assuming that a stream has a flow of 4 cubic feet per second, even if the actual flow of the stream was slower.
Among several requests, the EPA asked that the state list Lake Ouachita as impaired because of an Aug. 11, 2014, fish consumption advisory issued by the Arkansas Department of Health because of mercury levels in the water.
While "fish consumption advisories may reflect impacts on the fishery," the department wrote in its response declining to list the lake, the state's water quality regulations don't specifically identify "fish consumption" as a designated water body use for the lake.
Comments from the Arkansas Public Policy Panel and the Beaver Water District lamented the lack of data on some water bodies, including only two data points in five years for part of Beaver Lake in Northwest Arkansas.
In addition to criticizing the department's method of assessing water quality, many public comments centered on specific listings.
The state held a public comment period on the list March 1 and received 133 written comments.
About 100 of the written comments requested that three tributaries -- Mill Creek, Bear Creek and Big Creek -- to the Buffalo National River be placed on the list because of recent data showing that water in the creeks tested at above the water quality standards.
Department of Environmental Quality officials said the data do not fall within the required time period for assessment in the 2016 list and that the data are not extensive enough to account for statistical anomalies.
"Most of the data used by the commenters did not meet the requirements as set forth in the methodology as being distributed over at least three seasons and two years," department officials wrote in their response to the comments.
"ADEQ appreciates these comments from individuals who have taken an interest in protecting the waters of the state and hopes that this interest will continue," department officials said. "ADEQ will be investigating methods to assess continuous recorded data to assist in the evaluation of data for future assessments. In addition, ADEQ will stay informed about the water quality in these waterbodies and will continue to monitor the issue."
Additional comments came from business groups asking that the more stringent drinking water standards not be applied to bodies of water that are designated as drinking water sources but are not used for drinking water. The Arkansas Environmental Federation asked that the department consider that such bodies of water be used instead for industry and agriculture, which would not require it to meet drinking water standards.
The department declined to make that change, arguing that regulations require the department to assess bodies of water on the basis of their designated uses.
Several groups requested the continued listing of certain streams -- including the Eleven Point River, home of the endangered aquatic salamander Ozark Hellbender -- to ensure continued monitoring and management. But, the department declined to list them, citing current water quality attainment.
Metro on 04/17/2016