Sugar Creek group files substitute lawsuit to stop Bentonville dam

NWA Democrat-Gazette/File Photo - Pedestrians stroll Oct. 23, 2015, across the Lake Bella Vista dam. Supporters of removing the dam want to see a free-flowing Little Sugar Creek where the lake is now.
NWA Democrat-Gazette/File Photo - Pedestrians stroll Oct. 23, 2015, across the Lake Bella Vista dam. Supporters of removing the dam want to see a free-flowing Little Sugar Creek where the lake is now.

BENTONVILLE -- The Friends of Little Sugar Creek filed a new version of its federal lawsuit Tuesday over allowing Bentonville to rebuild the Lake Bella Vista dam.

The first, 21-page complaint was filed Dec. 21 against the Army Corps of Engineers and the Federal Emergency Management Agency. It claimed the dam isn't serviceable and therefore ineligible for federal money the city wants to use to rebuild it.

Dam History

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.

Source: Staff Report

The amended, 31-page complaint adds claims members of the Friends of Little Sugar Creek would suffer injury and harm their interests of seeing the creek return to a free-flowing stream if a new dam was built, a supplemental environmental assessment should have been done after December 2015 floods and the Emergency Management Agency failed to comply with the Council on Environmental Quality regulations to ensure the agency doing the environmental assessment has no financial interest in the project's outcome.

Both suits were filed in the U.S. District Court in Fayetteville.

CP&Y Inc. of Austin, Texas, is the city's engineering consultant on the project. It prepared the environmental assessment then was hired to prepare the dam plans, the complaint states.

"As such, it has a financial stake in the outcome if the project is permitted by the [Army Corps of Engineers] and funded by FEMA," the complaint states. "Conversely, its financial interests are adversely affected if the project is not authorized."

Friends of Little Sugar Creek is a nonprofit organization advocating for the 100-year-old dam to be removed and the creek to be restored.

The dam's gates have been open since the end of 2015, and the creek is in the process of returning to its free-flowing condition, said Greg Van Horn with Friends of Little Sugar Creek.

"In six months you have this place that's popped back to life," he said.

The newest complaint includes photos of the lake's upper end from 2014 and July 22. The photo from July is about six months after the dam had remained open because of flood damage. The 2014 photo shows water covered in green algae while the 2016 photo shows clear water.

Both complaints say the city's plans to rebuild the dam aren't what officials told the Corps of Engineers they intended to do. The city wants to change the type of gates, which would allow for the development of a water park downstream, according to the complaint.

A provision in the conveyance agreement, when the Bentonville/Bella Vista Trailblazers Association donated the property to the city in 2006, states the city "shall maintain the dam and in the event of damage or destruction replace or repair same."

Abiding by the agreement the city has with the Trailblazers is one of a few reasons for the dam to be rebuilt, according to Mayor Bob McCaslin.

"It's so simple, it's unbelievable," he said.

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 dam replacement is being paid for with federal and state money, not local tax money, McCaslin said.

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.

City officials have spoken about plans to develop the lake and surrounding property with more recreational amenities, making it a destination spot for tourists and recreational spot for residents.

Bentonville's City Council approved a $478,800 design contract with CP&Y in December 2015 for a new dam.

The lawsuit is tentatively set for trial Feb. 12, 2018.

NW News on 03/15/2017

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