Judge dismisses suit on Grand Prairie project
Posted on Saturday, May 14, 2005
URL: http://www.nwanews.com/adg/News/116360/
A lawsuit aimed at shaking up the Grand Prairie Irrigation Project was stopped cold Thursday when a state judge sided with defendants — the Arkansas Soil and Water Conservation Commission and the White River Irrigation District — granting them a motion for summary judgment to dismiss the case.
Judge Willard Proctor Jr. ’s decision removes one barrier that could have held up or prevented construction of the $319 million project to pump White River water to 900 farms in eastern Arkansas.
Plaintiffs in the Pulaski County Circuit Court case include the Arkansas Wildlife Federation, the Arkansas Nature Alliance and a number of other conservationists and property owners.
Their attorney, Richard Mays, argued Friday that the Soil and Water Conservation Commission and the White River Irrigation District lack authority to make decisions that will affect fish and wildlife in the state. The Soil and Water Conservation Commission and the irrigation district are the local entities teaming up with the Corps of Engineers to build the project.
But Amendment 35 of the state constitution gives the Game and Fish Commission the responsibility of regulating wildlife and wildlife resources in Arkansas, Mays said. "There’s no doubt this project is going to have serious impacts on fish and wildlife in the area," he said.
One of the project’s components is a $35 million pump station at DeValls Bluff that will funnel billions of gallons of water from the White River to rice and soybean farms in Prairie, Lonoke and Arkansas counties. The pump will kill fish and will cause significant shifts in water levels downstream, Mays said.
Soil and Water Conservation Commission attorney Patrick Hollingsworth said his commis- sion won’t be regulating wildlife resources by altering flows on the White River. The commission will be regulating human resources, he said.
He compared tapping the White River for irrigation to cutting trees for lumber or drawing Lake Maumelle down to provide drinking water for central Arkansas. All of these actions impact wildlife, but the Game and Fish Commission does not regulate timber companies or penalize water utilities, he said.
Hollingsworth also noted that the Game and Fish Commission has so far not asked to partner in the project although they’ve offered comments and shared research with project planners multiple times.
The Game and Fish Commission has a duty to play more of a role in planning the Grand Prairie Irrigation Project, Mays said. "The fact that Game and Fish is not here today, I wish they were, but we have the right as citizens to step up and say the constitution of the state of Arkansas ought to be followed," Mays said. "We shouldn’t rely on agencies to be the sole judges of if they’re going to perform their duties."
The Game and Fish Commission’s absence at Friday’s hearing helped persuade Proctor to side with the defendants. "The court takes particular note to the fact that the Arkansas Game and Fish Commission has been consulted for years, and if the commission felt there was some significant impact upon wildlife resources they would take more of an active role," Proctor said.
Game and Fish Commission Director Scott Henderson said Friday afternoon that his commission offered suggestions during the planning stage for the Grand Prairie project. "I think we would like to have a little more say in the setting of minimum flows, but we’ve never really agreed that water distribution was our turf," he said. "The allocation of water we think is not necessarily our job in all cases."
Proctor’s decision Friday is the second courthouse defeat for Grand Prairie opponents, who already lost a federal suit seeking to halt the irrigation project. That suit is expected to go before the 8 th U.S. Circuit Court of Appeals in St. Louis soon. "We’re looking forward to moving forward with the project," said Earl Smith, chief of the water division at the Soil and Water Conservation Commission.
Construction of the pump station is expected to begin soon, although groundbreaking could be delayed because of the discovery of the ivory-billed woodpecker at the Cache River National Wildlife Refuge 20 miles north of DeValls Bluff.
The Corps of Engineers and the U.S. Fish and Wildlife Service are conducting a biological assessment to see if the project could harm the habitat of the ultra-rare woodpecker that was thought to be extinct for 60 years until it was spotted in eastern Arkansas in 2004.
Arkansas Wildlife Federation Director Terry Horton said Friday’s defeat doesn’t mean the Grand Prairie Irrigation Project is the best way to solve east Arkansas’ water problems. The Arkansas Wildlife Federation and other opponents will continue to oppose federal and state funding for the project, and an appeal of Proctor’s ruling hasn’t been ruled out, he said.
Aquifers in the region have been overburdened and running dry for years, forcing farmers to turn to the White River for irrigation needs.
But Horton and other opponents to the irrigation project say conservation measures like on-farm holding ponds and tailwater recovery systems would be a better remedy to the shrinking underground water supplies. "It’s possible to lose a case and still be right," he said.