(a)

1. (1) An Extraordinary Resource Water, Ecologically Sensitive Waterbody, or Natural and Scenic Waterway designated use may be removed from a free-flowing waterbody for the purpose of constructing a reservoir to provide a domestic water supply, if it can be demonstrated that:

   1. (A) The sole purpose for the funding and construction of the reservoir is to provide a domestic water supply; and
   2. (B) There is no feasible alternative to constructing a reservoir in order to meet the domestic water needs of the citizens of the State of Arkansas.
2. (2) The limitation in subdivision (a)(1)(A) of this section does not prohibit incidental uses of the reservoir that are consistent with the use of domestic water supply.

(b)

1. (1) A petition to initiate rulemaking to remove an Extraordinary Resource Water, Ecologically Sensitive Waterbody, or Natural and Scenic Waterway designated use from a free-flowing waterbody in order to construct a reservoir to provide a domestic water supply may be submitted to the Arkansas Pollution Control and Ecology Commission by a regional water distribution district, public facilities board, public water authority, or other public entity engaged in providing water to the public.

2. (2) Such petition, at a minimum, shall include:

   1. (A) A map depicting the location of the proposed project and the area to be impounded;
   2. (B) A description of the proposed project, including detailed design plans;
   3. (C) A certification that the proposed structure to impound the free-flowing stream shall be funded and constructed solely for the purpose of providing a domestic water supply;
   4. (D) An evaluation of all alternatives to the proposed project, including:

(i) An environmental assessment of the impacts of each alternative on the instream and downstream water quality, the instream habitat, and the habitat and plant and animal life in the area upstream, downstream, and to be inundated by the proposed project;

1. (ii) The costs associated with, and an economic analysis for, each alternative;

   1. (iii) An engineering analysis for each alternative; and

      1. (iv) A socio-economic evaluation of the project to the local area and to the state as a whole;
   2. (E) Information and supporting documentation which address the criteria set forth in Appendix E;

   3. (F)

      1. (i) A recommendation to the Arkansas Pollution Control and Ecology Commission from the Director of the Division of Environmental Quality on whether or not the designated use should be maintained based upon a review of the information and supporting documentation required to be considered in Appendix E.
      2. (ii) The director shall provide the petitioner with the director’s recommendation within one-hundred-eighty (180) days of the Division of Environmental Quality’s receipt of the petitioner’s Appendix E submittal.
      3. (iii) If the director does not deliver a recommendation to the petitioner within the one-hundred-eighty-day time period, the petitioner may file its petition under this section without including a recommendation from the director.
      4. (iv) The director may submit a recommendation to the commission at any time not less than thirty (30) days prior to the commission’s final decision on the petition.
   4. (G) A description of any proposed mechanisms for protecting the domestic water supply, including but not limited to prohibitions to be placed on commercial and residential development along the proposed shoreline of the impoundment, the controls to be placed on public access to the water supply, and the legal authority for establishing and maintaining these domestic water supply protections; and

   5. (H) Any other submittals required by Administrative Procedures, 8 CAR pt. 11 (previously, Rule 8) for a petition to initiate rulemaking.

      1. (c)

2. (1)

   1. (A) The commission, as part of its rulemaking decision, shall determine whether or not a feasible alternative to constructing a reservoir is available to meet the domestic water needs of the citizens of the State of Arkansas.
   2. (B) The commission shall set forth the reasons for its determination in writing.

3. (2) The designated use of Extraordinary Resource Water, Ecologically Sensitive Waterbody, or Natural and Scenic Waterway shall not be removed by the commission if a feasible alternative to constructing a reservoir is available to meet the domestic water needs of the citizens of the State of Arkansas.

   1. (d)

4. (1)

   1. (A) The commission, as part of its rulemaking, shall determine whether or not the sole purpose for the funding and construction of the reservoir is to provide a domestic water supply.
   2. (B) The commission shall set forth the reasons for its determination in writing.
5. (2) The designated use of Extraordinary Resource Water, Ecologically Sensitive Waterbody, or Natural and Scenic Waterway shall not be removed by the commission if the purpose for the funding and construction of the reservoir is other than to provide a domestic water supply.
6. (3) In no circumstance, shall the designated use of Extraordinary Resource Water, Ecologically Sensitive Waterbody, or Natural and Scenic Waterway be removed by the commission from a free-flowing waterbody in order to construct a reservoir for recreational, flood control, or economic purposes other than providing a domestic water supply.

(e)

1. (1) The commission, as part of its rulemaking decision, shall determine whether or not the designated use of Extraordinary Resource Water, Ecologically Sensitive Waterbody, or Natural and Scenic Waterway of a given waterbody should be maintained.
2. (2) The commission shall set forth the reasons for its determination in writing, after considering the director’s recommendation referenced in subdivision (b)(2)(F) of this section and reviewing the information and supporting documentation which address the criteria set forth in Appendix E.