FAYETTEVILLE -- Opponents of Bentonville's plan to rebuild the Lake Bella Vista dam on Little Sugar Creek are asking a federal judge to halt the project until their lawsuit can be heard.
The Friends of Little Sugar Creek filed a motion Tuesday seeking an injunction in U.S. District Court. Friends of Little Sugar Creek is a nonprofit organization advocating for the 100-year-old dam to be removed and the creek restored.
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 group contends in the lawsuit the dam is so degraded it would require complete reconstruction under a new permit, which would require public participation in the process.
"That the old dam is not currently serviceable and requires reconstruction is beyond dispute. It can no longer impound Little Sugar Creek because its gates are no longer operable. The stream is flowing through the inoperable gates and around or under portions of the structure," according to the motion for injunction. "By authorizing the complete reconstruction of a dam that is not currently serviceable, the U.S. Army Corps of Engineers has exceeded its statutory mandate and violated its own regulations."
The motion also argues members of the group will suffer irreparable harm if the dam is rebuilt or replaced.
"This will disrupt the current flow of Little Sugar Creek and change its aquatic habitat," according to the motion. "FOLSC members use and enjoy Little Sugar Creek. They are currently enjoying the benefits of Little Sugar Creek returning to a free flowing stream. These interests will be irreparably harmed absent an order preserving the status quo."
The motion argues the issues will be moot and the environmental damage done if the project is allowed to proceed.
"Construction of the new dam has not begun. Requiring the USACE to suspend authorization while the case is decided on its merits is not a burden nor will it cause any harm to the defendants," according to the motion. "At most, defendants will be required to follow the law if the plaintiff prevails."
The original, 21-page complaint was filed Dec. 21 against the 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.
An amended, 31-page complaint filed last week added claims the 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 make sure the agency doing the environmental assessment has no financial interest in the project's outcome.
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."
The dam replacement is being paid for with federal and state money. The 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.
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. Bentonville's City Council approved a $478,800 design contract with CP&Y in December 2015.
The lawsuit is tentatively set for trial Feb. 12.
NW News on 03/22/2017