UPDATE: 4:00 P.M.
"Dam removal is the less expensive and more environmentally friendly alternative to a total dam reconstruction project," Greg Van Horn, member of the Friends of Little Sugar Creek, said Friday. "FEMA chose to dismiss the review of dam removal during the Environmental Assessment based on erroneous information about nonexistent deed restrictions. We want dam removal to be reviewed equally so that the public can make an informed decision."
Van Horn said the group respects that there are differing viewpoints on the issue.
"We believe this is all the more reason to give the democratic process an opportunity to work."
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BENTONVILLE -- The Friends of Little Sugar Creek have filed a federal complaint against the U.S. Army Corps of Engineers and the Federal Emergency Management Agency over the authorization allowing Bentonville to rebuild the Lake Bella Vista dam.
The 21-page complaint, filed Wednesday in Arkansas' western district, claims the dam is not serviceable and is therefore ineligible for federal money the city wants to use to rebuild it.
Complaint reliefs
The complaint asks the court:
• To declare that the Corps of Engineers’ authorization of the construction of a new dam exceeds its authority.
• To declare that FEMA violated the National Environmental Policy Act by failing to consider a reasonable alternative to the dam.
• To declare that FEMA violated the National Environmental Policy Act by failing to adequately evaluate the environmental consequences.
• Prohibit the city from taking action under the Corps permit it received to rebuild the dam.
• Award Friends of Little Sugar Creek’s costs and expenses, including attorney’s and expert witness fees.
Source: Staff report
It also says the city's plans to rebuild the dam are not what officials told the Corps of Engineers it intended to do. Instead of rebuilding the dam as it was, the city wants to change the type of gates, which would allow for the development of a water park downstream, the Friends claim in the complaint.
Friends of Little Sugar Creek is a nonprofit organization that has been advocating for the 100-year-old dam to be removed and for Little Sugar Creek to be restored to its natural-flowing state. The group obtained email messages from city officials relating to the dam through a Freedom of Information Act request several weeks ago. Those messages show the Walton Family Foundation has expressed an interest in paying for a canoe/kayak park below the dam.
The complaint also argues there is no deed restriction requiring the city to rebuild the dam.
There is a provision in the conveyance agreement when the Bentonville/Bella Vista Trailblazers Association donated the property to the city in 2006 that states the city "shall maintain the dam and in the event of damage or destruction replace or repair same."
The Trailblazers Association was established in 1996 by community leaders dedicated to connecting and enhancing Bentonville and Bella Vista through trails. It builds trails and promotes economic, social and recreational benefits of trails.
The Environmental Assessment conducted states dam removal was not considered an alternative option because of the "deed restrictions." CP&Y Inc. of Austin, Texas, is the city's engineering consultant and conducted the environmental assessment.
"FEMA's decision to refuse to even consider the reasonable alternative of removal and stream restoration is legally flawed in that removal of the dam and restoration of Little Sugar Creek is not prohibited by the Special Warranty Deed from the Trailblazers to the City," the complaint reads. "The only restriction in the deed is that the City use the land for 'Passive Recreational Activities.' Passive recreational activities are defined in the deed and do not include repair or replacement of the dam."
The Association of State Dam Safety Officials declared the dam "failed" in March 2008 after it was topped during a storm. It was topped again by flooding in 2011, 2013 and December 2015. The lake has been drained, and dam gates have remained open since the last flooding.
The dam replacement is expected to cost $3.5 million. FEMA has committed $2.7 million to the city for the project. The remaining money will come from the Arkansas Department of Emergency Management and Arkansas Department of Economic Development. The city will not have to contribute.
Bentonville's City Council approved a $478,800 design contract with CP&Y in December 2015 for a new dam.
The designs are "almost complete," according to Travis Matlock, city engineering director. The city received the permit from the Corps of Engineers last week, he said in an email. He expects designs ready for bid to be available in the first quarter of 2017.
Mayor Bob McCaslin said Thursday he wasn't aware of the complaint filed but it won't change the city's course of action regarding the dam.
"It's America," he said. "They (the Friends) can do whatever is available for them to do, and we're doing what is appropriate for us to do the way the property was conveyed to us. Period."
The complaint does ask for the court to prohibit the city from taking action under the Corps of Engineers permit it received to build the dam.
NW News on 12/23/2016