Comments flood in over plan to ease waterways rules

BY KATHERINE MARKS ARKANSAS DEMOCRAT-GAZETTE http://www.ardemgaz.com/ShowStoryTemplate.asp?Path=ArDemocrat/2006/06/10&ID=Ar00104&Section=Arkansas

A proposal to relax rules protecting the state's most unspoiled waterways drew hundreds of comments from landowners, outdoor enthusiasts and agencies concerned with water quality and quantity.
    The state Department of Environmental Quality and the River Valley Regional Water District, which wants to dam Lee Creek 12 miles north of Van Buren to provide a drinking water supply, are now going through the comments. Current rules prohibit the impoundment because the creek is designated as an extraordinary resource water, and the department opposes the district's effort to relax standards on those protected waters.
    Both sides have their work cut out for them.
    Printouts of e-mails submitted during the public comment period, which ended June 2, created a stack several inches tall. There are also hundreds of form letters and preprinted brochures, responses on personal stationery and on official letterhead from elected officials, federal and state agencies.
    If there were a distance award, it would have to go to Jim Swearingen, an Arkansas landowner, who wrote from Hawaii to oppose the water district's request.
    Many opponents wrote of their love for the state's natural beauty and its free-flowing streams, their desire to retire on land they own here.
    "The beauty of this great state is about all she has going for her," wrote Debbie and Jerry Joslin of Judsonia.
    Perhaps the shortest response was e-mailed by two supporters of the proposal, Fort Smith real estate agents Dinah and Bill Mc-Cord. They wrote: "We support Reg. 2. We need water," referring to Regulation 2, which governs extraordinary resource waters.
    The change being considered by the state Pollution Control and Ecology Commission would relax rules controlling designated extraordinary water resources to allow water authorities to more easily access them for drinking water. The commission is expected to rule on the proposed change in October.
    The lengthiest comment came from the Department of Environmental Quality, which has said the district is seeking the rule change to bolster recreation in the area and that the change would set a dangerous precedent that could reverse years of protections. The department's 118-page argument includes a planning meeting notice from 1979 on the "Pine Mountain Lake Project."
    "We think they show that this is of a broader purpose than just drinking water," department Director Marcus Devine said of the material.
    Devine said the proposal's broad implications make it different from other requests to change department rules. "Rule making typically affects one little issue."
    The department has been working on a competing proposal that would address the use of extraordinary resource waters for a drinking supply in extreme cases as part of its triennial review and working groups this spring and summer. The proposal also will go before the commission in October.
    The water district, which includes all of the cities and water authorities in Crawford County, and its supporters contend that growth in Northwest Arkansas is forcing it to consider the dam.
    "The district is not asking to eliminate any of the beauty or recreation possibilities of the creek, it should enhance and provide a plentiful healthy supply of water for this area," wrote Gene Robertson, president of the Crawford County Farm Bureau.
    Prized for their recreational opportunities, wildlife and scenery, parts of more than 35 streams and lakes in Arkansas are designated extraordinary resource waters, which protects them from activities such as mining, construction and other potential sources of pollution.
     The water district's proposal has drawn the ire of conservationists worried that lifting the protections could harm the waterways.
     The Game and Fish Commission, The Nature Conservancy, the U.S. Fish and Wildlife Service and the Arkansas Heritage Commission submitted comments opposing the plan. The latter two groups said the dam could harm the Ozark big-eared bat and the long-nose darter, which are protected under the Endangered Species Act.
    The federal Environmental Protection Agency said the proposal could result in the state violating the federal Clean Water Act. And the state of Oklahoma contends that the dam could raise water-quality issues on both sides of the state line.
    Many regular folks also asked the commission to keep existing regulations unchanged.
    "Please save our precious streams for future generations," Kay Richardson of Rogers hand wrote on a slip of paper, illustrated with a robin, frog and fish.
    "I feel that the approval of this proposal will open the door to further unnecessary and quite possibly destructive changes to our ERWs by other organizations," wrote Bart Angel of Little Rock.
    Allan Gates, an attorney representing the water district, said he was "reluctant to make any statements about specific comments before we've studied them and made a formal response." 
    "The number is not that overwhelming an issue," he said about the volume of comments. "The comments for the most part raise the same issues. ... There are people who feel very strongly for it and against it."
    Gates said he anticipates that the department's response will focus on the Lee Creek project, while the district's will not.
    While the proposal was submitted so the district could explore that project, Gates said, the request itself does not "approve or disprove the project.  Rather, it would create a procedure for water districts interested in such projects to pursue," he said.
    Doug Szenher, a spokesman for the department, said the department's legal division had counted about 900 comments that were submitted by the deadline.
    An early count showed 194 comments in favor of the proposal and 505 against, Szenher said. The count didn't include about 150 one-page form letters or a 40-signature petition supporting the project.
    "We knew this was going to be a very involved and controversial issue," said Szenher, a 29-year employee who couldn't recall the department receiving more comments on any other issue. Szenher said the exact number is hard to ascertain because of duplicates and cases where signatures are illegible and there wasn't an accompanying address. 
    The department received about 320 form letters supporting the proposal. It read: "The proposed language sets forth sufficient safeguards that will ensure a balance between the drinking water needs of the public at large and protection of ERWs. ... Please consider the needs of  "all" the residents of the Natural State." 
    Almost all of these form letters came from Crawford County addresses in Alma, Van Buren, Uniontown and Mountainburg. Others who wrote in support included the Concord Waterworks Facilities Board in Van Buren, the Alma School District and City Council, and Crawford County Judge Jerry Williams, vice chairman of the water district board. The Arkansas Water and Wastewater Managers Association also supported the plan, saying that providers must be able to consider "all viable water sources."
    Steven Edwards, who submitted one of the supporting form letters, said he wasn't sure of its origin but that his support for the proposal is simple: "We need a water supply in Crawford County."
    Edwards, whose family funs Edwards Aviation Services Co., used to be on the River Valley Regional Water District and Highway 71 Water board and served as mayor of Mountainburg from 1999 to 2004.
    He said he understands the statewide interest in extraordinary resource waters and is glad that so many people have weighed in on them. But the rules need to have more flexibility to allow water districts faced with growing customer bases and limited resources to more easily access extraordinary resource waters, Edwards said.
    "I fully believe that in my lifetime, I'll see 55 gallons of water cost more than 55 gallons of oil," the 42-year-old said.
    While department officials have stressed that water districts across the state have found ways to use extraordinary resource waters for drinking supplies including the use of weirs, Edwards said in growing areas there may not be enough land to build reservoirs that could be an alternative to dams.
    Opponents also organized drives to submit comments.
    A brochure sent out by the Sierra Club, Ozark Society, Arkansas Canoe Club, Friends of the North Fork and White Rivers, Audubon Arkansas and Audubon Society of Central Arkansas included a mail-in response for opponents to sign. About 70 of the signed comment cards from the brochure were in the stack of comments at the department.
    The card in part reads: "These streams are the most important waters for fishing and outdoor recreation. Arkansas' most rare and endangered wildlife inhabit these waters. There is no need to change Regulation 2."
    Barry Haas, a spokesman for the Audubon Society of Central Arkansas, said the number of extraordinary resource waters in the state is limited. "They're given specific protections for a reason."
    Glen Hooks, a spokesman for the Sierra Club, said many in the public don't know a lot about extraordinary resource waters, which makes the number of comments received even more impressive.
    "These commissioners, they're not accountable to people through elections, but I do think they care about what Arkansans think."
     After the comments are reviewed and each side writes up a response, two legislative committees will review the proposed rule change, Szenher said.
    Szenher said the department is looking mainly for comments on technical, legal or regulatory issues, like the ones raised by state Rep. Sam Ledbetter, (D) Little Rock.
    Ledbetter and the department also contend that the proposal is illegal because the Pollution Control and Ecology Commission, which would have final say on the project, is only allowed to make rule-making decisions and review a decision made by the director. Allowing the building of a dam is outside the purview of both, the department argues.
    And Ledbetter wrote that the proposed change would have to be approved by the Natural Resources Commission, and since the director of the commission is a member of the Pollution Control and Ecology Commission, which will also vote on the plan, that scenario would create "an unworkable conflict of interest."