The Arkansas Natural Resources Commission on Wednesday ordered a Clinton landowner to remove an approximately 30-foot-tall dam that he constructed on his property in a floodway without first obtaining a permit.
But an attorney representing landowner Dan Eoff said the decision could bankrupt his client, because removing the dam could cost three-quarters of a million dollars. The attorney, Chuck Banks, said he would advise his client to appeal the commission’s ruling.
The dam was erected in June 2012 after Eoff attempted to obtain a permit from the U.S. Army Corps of Engineers, but was told it would take two years to obtain one, said Deanna Ray, a staff attorney for the commission.
Eoff is better known in Van Buren County as the host of the National Championship Chuckwagon Races.
The dam put the rest of the county in jeopardy of losing its status in the National Flood Insurance Program,could endanger the Clinton water supply if it fails and threatened two endangered species, Ray said.
“You’re being presented with a very serious problem and a serious solution must be achieved,” Ray told the commission in her opening argument.
After a nearly six-hour hearing at the Clinton Airport terminal, the commission accepted all of its staff’s recommendations for removal of the structure under the supervision of licensed engineers.
David Britton, the floodplain manager for Van Buren County, testified that he sent a letter to Eoff on Aug. 10, 2012, after receiving a call about the dam, telling Eoff that the dam would have to be removed. In the letter, Britton explained the permitting process for building near a river and how a decision onthe permit is made.
“In this case, the decision is easy because the construction is in a floodway and is not allowed. Any construction in a floodway is deemed to change the flow of water in that floodway and can cause flooding either above or below that construction,” Britton wrote.
Later that month, the Army Corps of Engineers informed Eoff that he violated the federal Clean Water Act by failing to obtain approval for the dam. The dam had the potential to release excessive amounts of sediment into the South Fork Little Red River, where two endangered species - the yellowcheek darter fish and the speckled pocketbook mussel - were found, according to the Corps’ letter.
Nancy Gambill, a dam safety and flood-plain management supervisor at the commission, said Wednesday that allowing construction in the floodway would take the county out of compliance with the federal regulations for the flood insurance program, opening it up to sanctions.
Gambill said the program was “important here in Van Buren County” and cited the 1982 flood that was recorded as a 100-year event.
Tom Hopper, the chairman of Crafton Tull, testified that Eoff hired his engineering company to inspect the dam and its 19 million-gallon reservoir to find a way to resolve the issues raised by the various government agencies. Hopper said he found several areas where the dam was seeping water and a handful of sites where there was notable erosion.
“There are reasons for concern,” Hopper said.
The company estimated that removal of the dam would cost about $750,000, Hopper said.
Banks, one of three attorneys who represented Eoff at the hearing, acknowledged that his client had made a mistake by hiring a contractor to build the dam without a permit, but that he was now being “threatened” by a growing number of government agencies.
Banks asked the commission to not bankrupt his client and to come up with a “solution” to the problem, instead of a “punishment.”
“You have the right to seek solutions to problems rather than just punish law-abiding citizens for crossing a line or a rule or regulation. There wasn’t a crime committed here,” Banks said.
Northwest Arkansas, Pages 9 on 07/22/2013