State environmental regulators' draft list of impaired-water bodies doesn't provide justification for not listing certain waters and won't protect certain waters from continued pollution, dozens of people wrote to regulators this month.
Several others urged the Arkansas Department of Environmental Quality to remove some waters from the list, citing inadequate data and fears over the economic consequences of declaring those waters polluted.
The bulk of the more than 460 public comments on the department's draft list concern the department's decision to list a portion of the Buffalo National River and a tributary, Big Creek, as impaired.
In July, the department declared that a 14.3-mile stretch of the Buffalo River and a 15-mile stretch of Big Creek were impaired because of E. coli. Another 3.7-mile stretch of Big Creek, just before it enters the Buffalo, is listed as impaired because of a lack of dissolved oxygen.
The portion of the Buffalo considered impaired runs above and below the confluence with Big Creek. The department said the source of impairment was unknown, but it stated in other documents this month that C&H Hog Farms, near Big Creek, is a possible source.
The declarations are draft decisions. The department still must consider public comments, respond to each one and then make a final list. That list needs to be approved by the U.S. Environmental Protection Agency. The lists are compiled every two years. Last summer the EPA approved for the first time Arkansas' lists dating back to 2010.
The most commented-on point of contention was that the state's listing of the Buffalo River and Big Creek exempts the waters from requiring new mandatory pollution-reducing activities. Instead of listing the waters under Category 5, which would have required new plans for pollution-reducing activities, the department listed the waters under Category 4b, which requires pollution-control activities through existing initiatives.
In this case, the department stated that the voluntary Buffalo River Watershed Management Plan and the non-regulatory Beautiful Buffalo River Action Committee were sufficient for the 4b requirements, but many conservationists disagreed.
"Aspirational goals or unimplemented future plans do not qualify," attorney Ross Noland wrote on behalf of himself and the Arkansas Public Policy Panel.
A 2007 EPA examination of alternatives used by other states in Category 4b cases says that a water is Category 4b when a total maximum daily load study "is not needed because other pollution control requirements are expected to result in the attainment of an applicable water quality standard (WQS) in a reasonable period of time."
A total maximum daily load study is what is created under Category 5 to examine potential pollution-reducing activities.
A 2006 report from the EPA cited by some commenters outlines six elements for 4b listings, including a description of pollution control and a timeline on completing the elements. Commenters stated that the department's listing doesn't include a timeline for such controls.
In the department's explanation of its 4b listing, officials stated that stakeholders and action committee partners were needed to successfully implement strategy and develop milestones for the Buffalo River.
"ADEQ and [Beautiful Buffalo River Action Committee] are committed to revising the strategy as necessary to achieve ultimate attainment of water-quality standards in the Buffalo River," the explanation reads.
The department will respond to comments at a later date.
Colene Gaston, an attorney for the Beaver Water District, also noted that three parts of Beaver Lake were listed in Category 4b without accompanying regulatory actions.
The department also cited a watershed management plan in its listing of eight segments or tributaries of the Illinois River. Comments concerning the Illinois asked for regulatory requirements based off of a total maximum daily load study.
John Bailey, director of environmental and regulatory affairs for the Arkansas Farm Bureau, had other comments about the listings for the Buffalo River and Big Creek.
Big Creek should be broken into more segments, Bailey said, because of the concentration of E. coli exceedances farther upstream in the creek. The department should have used a geometric mean for measuring E. coli, and much of the data used were collected by opponents of C&H Hog Farms who know how to game the system to get worse test results, Bailey said. All data showing dissolved oxygen impairment was from 2013, Bailey said, and it's unclear if the department has done any monitoring since then.
Others also criticized the source of some of the data, which the department has to vet to accept, and argued that reliable data do not actually show impairment.
Two Newton County leaders urged the department not to list any streams in the county at all.
"We are one of the poorest counties in the state and to hamper the ability of this counties [sic] citizens to make a living is going to further impoverish our county," wrote County Judge Warren Campbell, a relative of one of the C&H owners.
County Assessor Janet Lager echoed Campbell.
"Please consider the impact this would have on all farmers, property owners, cabin and kayak rentals, loggers, utilities, and county trash/maintenance departments," she wrote.
Other county residents and outsiders urged a higher-priority listing in a plea to improve the river and recreation there.
Alice Andrews, a frequent attendee of public meetings concerning C&H Hog Farms or the Buffalo River, called the department's listing a "Band-Aid" approach.
"Volunteer effort translates to a long wait before, or if, any significant project is born. Simply put, it's unrealistic," she said.
The listing is a way to avoid addressing C&H Hog Farms, wrote Gordon Watkins, president of the Buffalo River Watershed Alliance. The watershed management plan is not allowed to address regulated facilities such as C&H, he said.
The decision, Watkins said, "absolved ADEQ of responsibility for directly addressing a known threat to our state's most treasured stream, relying instead on private citizens and non-profit organizations to shoulder the burden while placing C&H off limits. This is unacceptable."
Dozens of comments also concerned Fourche Creek, a 20-mile-long waterway that cuts through Little Rock. The secluded creek is often loaded with trash from storm drains and dirt eroded from channelized portions of the creek.
Conservation groups have touted its potential for recreation for years, and state and local governments have tried to promote the creek, designating it as the state's first Urban Water Trail last year.
The department placed part of the creek on the list under Category 5, but commenters requested that priority for the creek within that category be raised from "low" to "high," given the level of pollution and the water's use as a recreational destination.
At the Arkansas Pollution Control and Ecology Commission's meeting Friday, Dan Scheiman, bird conservation director at Audubon Arkansas, said the higher-priority designation would help his organization apply for funding to do a watershed management plan, which once created would help the organization apply for more funding to clean up the creek.
Several other comments stated that the department's list was insufficient because it did not list any waters as not meeting anti-degradation requirements.
Under anti-degradation, extraordinary resource waters, such as the Buffalo River, are not to degrade at all. Under the Clean Water Act, states are supposed to implement plans for determining whether a proposed wastewater permit would contribute to nonpermissible degradation.
Arkansas is one of only two states without an EPA-approved anti-degradation implementation plan.
Many comments were related to the department's process for issuing the 303(d) list.
Gaston asked that the department post its supporting data and other documents online.
Ed Brocksmith, a founder of Save the Illinois River, also asked that the department explain why other tributaries were removed from previous lists.
Several commenters noted that explanations for delistings were lacking.
Others requested that the department draft the required integrated report for the public to examine during the comment period, as well.
State Desk on 09/30/2018