EPA order to remove dam prompts lawsuit

Correction: This story erroneously stated that Clinton Mayor Roger Rorie had filed a complaint with the Arkansas Department of Environmental Quality over a dam constructed by Dan Eoff. The mayor’s complaint focused on a levee constructed on Eoff’s property but did not address the dam.

A Clinton landowner who constructed a 30-foot tall dam on a tributary of the South Fork of the Little Red River without a permit is challenging in court an order by federal regulators to remove it.

Attorneys for the landowner, Dan Eoff, argue in federal court filings that removing the dam - and its 19 million-gallon reservoir - would be an “immense financial expense” for Eoff or would result in him having to pay up to $37,500 per day in fines under an order issued by the U.S. Environmental Protection Agency.

Eoff, a rancher known in Van Buren County as the host of the National Championship Chuckwagon Races,constructed the dam in June 2012 to water his livestock, his attorney Grant Ballard said.

Within two months of it being built, Eoff received notice from the flood-plain manager of Van Buren County and a letter from the U.S. Army Corps of Engineers to remove it, stating that he had violated the federal Clean Water Act by not obtaining a permit to build it and that the dam could release excessive sediment into the waterway.

Eoff hired an engineering firm to inspect the dam and reported to state officials that its removal would cost about $750,000.

“The [federal] order constitutes a present and continuous injury as its threat of enforcement forces [Eoff] to restore his property to original condition at an immense financial expense, or to subject himself to severe civil and criminal penalties,” Ballard wrote in Eoff’s lawsuit.

Ballard asked the court to rule that the federal Clean Water Act does not apply to Eoff’s property because the dam did not add dirt to “waters of the United States.”

Earlier this month, Senior Assistant Attorney General Kendra Jones asked the U.S. District Court to include the state as an adversarial party in Eoff’s lawsuit, citing the state’s duty to enforce the Clean Water Act. Jones wrote that the state has an interest in the case because the result of it “could impair or impede the ability of the state to prevent pollution of waters of the state and protect the public interest.”

Attorney General Dustin McDaniel said in a statement released last week, “My office has the authority to enforce state and federal environmental regulations and a responsibility to protect the public.”

“I am concerned about the danger that this dam poses to the environment and to Van Buren County residents, and that is why I chose to intervene in the existing lawsuit against Mr. Eoff.”

Ballard wrote in court filings Friday that any pollution from the dam is “speculative” and that the state should not be allowed to “pile on accusations” in Eoff’s lawsuit, which concerns only the federal government.

The state “has no recognized or cognizable interest in the subject of this litigation,” Ballard wrote.

Ballard also submitted an affidavit from a professional engineer stating that the dam is “not at risk of failure in its current condition nor is the dam at risk of a release of contaminant pollutants.”

U.S. District Judge D. Price Marshall Jr. has not ruled on whether the state can intervene in the case.

State officials had previously signaled that they would leave dam-enforcement efforts to the federal government.

Randy Young, executive director of the Arkansas Natural Resources Commission, said in December that the commission had rescinded an order to remove the dam and would not pursue further action against Eoff.

The commission unanimously approved vacating the order after a Legislative Audit Division report raised a “potential fairness question” regarding the commission and the Eoff case.

The commission had held a dinner on the night before its July 17 hearing in the dam case. During the dinner, information about the case was presented, and after the meal, all but one of the commissioners visited the dam site, according to the audit report.

Eoff’s attorneys, who have said they were not invited to the dinner, said the commission violated the Arkansas Freedom of Information Act by not giving proper notice of the gathering, which the audit report said was paid for with public funds and at which all commissioners attended.

In another wrinkle in the case, the commission unanimously denied a request in February by a few legislators - including Rep. Josh Miller, R-Heber Springs - to have the commission cover Eoff’s legal expenses in the dam matter.

Eoff constructed the dam off McKnight Lane in Clinton in June 2012, Ballard said. He built it after he attempted to obtain a permit from the Corps of Engineers but was told that it would take years to get one, the Natural Resources Commission has said.

The Corps of Engineers subsequent letter to Eoff said the dam could release excessive amounts of sediment into the South Fork of the Little Red River, where two endangered species - the yellow cheek darter fish and the speckled pocketbook mussel - are found.

In August 2012, the U.S. Fish and Wildlife Service and Clinton Mayor Roger Rorie contacted the Arkansas Department of Environmental Quality and made separate complaints about the dam, according to agency records.

In an interview, Rorie denied filing a complaint about the dam but later said he may have filed the complaint and forgotten about it.

The mayor would not comment about the dam specifically but said the city has had problems with landowners upstream from the city’s water-treatment plant constructing berms that later fail. Rorie said those berms add more sediment to the water than the treatment plant’s filters can handle.

“Anytime those things happen on the streams up there … if it’s coming down to our water plant, our water plant is not designed to treat water that dirty,” Rorie said.

Katherine Benenati, a spokesman for the Department of Environmental Quality, said the state agency inspected the dam in August 2012 in response to the complaints.

“Our investigation coincided with investigations by the Arkansas Natural Resources Commission and the Army Corps of Engineers. When we learned ANRC was pursuing enforcement action, we didn’t pursue further action. Regulatory authority on dam construction is within the purview of the ANRC,” Benenati said in an email.

Jennah Durant, a spokesman for the EPA based in Dallas, said in an email that the EPA does not regulate dam-building but can assist the U.S. Army Corps of Engineers, “which has authority to enforce Section 404 of the Clean Water Act, which deals with dredge-and-fill activities such as dam-building.”

Durant said she couldn’t answer specific questions about the Eoff case because it is “enforcement confidential.”

Front Section, Pages 1 on 03/30/2014

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