The Arkansas Natural Resources Commission is no longer trying to get a Clinton landowner to tear down a a dam he was not authorized to build, legislators heard last week.
Randy Young, director of the ANRC, told the Standing Committee on State Agencies that the attorney for the agency and an attorney with the attorney general’s office decided that a recent report of the Legislative Audit’s staff "tainted our case in Van Buren Circuit Court to the extent that we were not going to be successful."
The attorneys advised "we should vacate the order and leave the responsibility to the Environmental Protection Agency to pursue their violations," Young said.
In July, the a commission ordered Dan Eoff, best known for his annual National Chuckwagon Races in Clinton, to hire an engineer to submit plans for tearing down a dam he built on his property last year without permits and in a federally designated floodway.
The 30-foot tall earthen dam is located along a tributary that intermittently flows into the South Fork of the Little Red River in Van Buren County.
The EPA has said the waterway downstream from the homemade dam is home to two endangered species — the yellowcheek darter and the speckled pocket book mussel.
Eoff has filed a complaint in Van Buren County Circuit Court seeking a review of the commission’s decision. He also has filed a federal lawsuit against the EPA challenging an administrative compliance order.
Last fall, the executive committee of the Legislative Joint Auditing Committee asked that the issue be reviewed and a report in December suggested that a commission dinner in Clinton on the night before the July 17 meeting violated the state Freedom of Information Act. The report said the dinner should have been considered a public meeting because all of the commissioners were present, and the public should have been notified.
During that meeting, information about the dam was presented and after the dinner most of the commissioners went to see the dam.
Young told lawmakers Jan. 29 that normally the public is notified of such dinners when all commissioners are attending, but there was an oversight and that was not done at that time.
Crystal Phelps, attorney for ANRC, told the committee that the audit report was later presented to the circuit judge hearing Eoff’s appeal and that he cited the possible FOI violation in a recent order.
During the meeting, lawmakers were told that Eoff has spent about $125,000 in attorney’s fees a well as engineering and surveying expenses since the July decision by ANRC.
Rep. Josh Miller, R-Heber Springs, asked Young if his agency had any plans of repaying Eoff for any or all his costs.
"Mr. Eoff is out about $125,000 because of this commission and as it stands right now you all right now have agreed to walk away and leave it, and yet here is someone who is stuck with $125,000 in expenses," Miller said. "My concern is, I would like to see part if not all of that reimbursed."
Young said the agency had no plans to reimburse Eoff.
"At the end of the day, without regard to the mistake we’ve made, or whatever, he is still in violation of state law as we sit here this afternoon," Young said. "He still has an unpermitted dam located in the floodway and in violation of the Van Buren County flood plain ordinance, so, no, I don’t sense the need to reimburse him."
Young said the floodplain manager for Van Buren County has informed Eoff that the dam must be removed, and the U.S. Army Corps of Engineers has informed the property owner that he has violated the federal Clean Water Act by building the dam without a permit.
Young said he also was recently asked by federal EPA officials for transcripts of the July 17 commission meeting, as well as photos and other documents about the dam.
During the meeting last week, ANRC Chairman Corbit Lampkin of Camden and Commissioner Don Richardson of Clinton both told the committee that the dam was a hazard.
"I would consider that spillway to be an imminent danger to anyone below it because in a heavy rain it is subject to immediate failure," Lampkin said.
Richardson said the issue is the amount of sediment because the waterway is where the city gets its drinking water for treatment. "The big problem is that when it fails there’s going to be a catastrophic event of sediment load … on our Clinton water system downstream from there," Richardson said.
Young said the "whole problem is, if the dam hadn’t been constructed in the floodway … we could have sat down with him and perhaps we could have worked something out with him."
Eoff was not notified of the Jan. 29 meeting by the committee.