Agency hits panel with suit
Posted on Wednesday, January 18, 2006
The state Pollution Control and Ecology Commission again will grapple with whether to review the rules shielding pristine waterways from development after the Arkansas Department of Environmental Quality took the rare step of appealing a commission decision, officials said Tuesday.
Last month, the commission voted to allow the review at the request of the River Valley Regional Water District, which includes all the cities and water authorities in Crawford County.
The district wants the rules changed to allow authorities to tap extraordinary resource waters to provide drinking water. Specifically, it wants to dam a portion of Lee Creek to provide drinking water for thousands of its customers. However, the dam is prohibited since the portion of the creek in question is designated an extraordinary resource water.
Extraordinary resource waters - prized for recreation, wildlife and scenery - are protected from mining, construction and other potential sources of pollution.
A month of legal wrangling between the water district and the Arkansas Department of Environmental Quality - which opposes the review - was capped last week by a lawsuit and the district's subsequent withdrawal of its original petition. The issue will be back before the Pollution Control and Ecology Commission on Jan. 27 because the district refiled its request with some changes on Friday.
On Jan. 9, the department filed an appeal in Pulaski County Circuit Court challenging a Dec. 9 vote by the Pollution Control and Ecology Commission.
"We contended the vote was not proper because of the use of telephone to maintain a quorum,"department spokesman Doug Szenher said Tuesday.
The appeal marks the first time the department has challenged the commission since 1995, when a circuit court ruled that the department had no authority to sue the commission because the commission was a supervisory and appellate arm of the same agency.
The water district cited the precedent in its court filings, insisting that the department has no authority to sue the commission. It also contends that such an objection should have been made beforehand, that commissioners can vote by phone and that the matter isn't subject to appeal because the commission hasn't voted on any rule changes, court documents show.
Allan Gates, the Little Rock attorney who represents the district, said Tuesday that "we were surprised by the department's lawsuit, but we do not want this issue tangled up on procedural grounds. We're happy to take it back to the commission so the questions can be debated cleanly on the merits.
"I don't believe the commission will vote against starting the rule making,"he added. "I believe most commissioners agree this is a debate that should go forward and the public should have a right to comment."
Szenher said legislation in the 1990 s addressed the changing role of the department and gave it new duties. As a result, in 1999 the department's name was change from the Department of Pollution Control and Ecology in part to avoid being confused with the commission. The department is in charge of the day-to-day administration of the commission's regulations.
The department made the rare recommendation last month not to allow a rule review. It normally waits to comment on the proposed change as a part of the review. Director Marcus Devine called the district's request "a wholesale obliteration of the entire extraordinary resource waters program."
After a lengthy hearing, the 13-member commission voted 4-3, over Devine's objections and those of environmental groups, to allow the review. Two members were absent ; two left before the vote ; one recused himself, and the acting chairman didn't vote. Chairmen typically vote only to create or break a tie. Commissioner Lynn Sickel joined the meeting by phone and voted for the proposal.
The department's suit cites a 16-year-old Arkansas attorney general's opinion that says, in general, that public officials can't vote by proxy.
Other votes made by the commission that day were not listed in the lawsuit. "We have chosen to appeal only the action [regarding extraordinary water resources ],"Szenher said.
William Snowden, an attorney for the commission, said he wasn't sure if the court could render invalid other actions that day if it ruled a quorum didn't exist, but said "that's certainly a possibility."
In a move that will likely render the appeal a moot point, the water district withdrew its original request and filed a nearly identical one on Friday, the deadline for placing the matter on the Jan. 27 agenda. The changes include moving back the dates of public hearings, increasing the number of public hearings from two to four, increasing the amount of time to respond to public comments from 15 days to 45 days and pushing the date for final action from the commission from May 25 to Oct. 27.
Glen Hooks, conservation organizer for the Sierra Club's Little Rock office, said Tuesday that he was glad that the full commission would get a chance to hear the issue. The Sierra Club is one of six environmental groups, along with the Arkansas Canoe Club, opposing the district's request.
He had expressed frustration that four votes were all that were needed for approval on a 13-member commission.
"It was a matter a lot of us didn't feel right about,"Hooks said.
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