Private dam is environmental hazard, downstream neighbor asserts in lawsuit
Posted on Monday, August 4, 2008
ROYAL — Downstream from a large earthen dam built this spring, broad areas of Kelly Creek are bone dry.
Only rocks, gravel and silt remain in the creek bed where for years, property owners say, water always flowed — at times in rapid gushes, at other times in trickles.
With no fresh water, the frogs are gone. Now the darters are clinging to the few drops left in stagnant pools. Deer and wild turkeys also are creeping closer to homes to find a drink, property owners say.
“It’s wholesale environmental destruction,” said Wenzel Wochos, a downstream property owner, who last month filed a federal lawsuit against Darrell Smith, his upstream neighbor who built the dam.
Smith, who built the dam to make a lake, didn’t return repeated phone calls to his home and business seeking comment for this story.
Downstream neighbors say they aren’t exactly certain when Smith began building the dam. But in late 2007, they say the dam breached. Muddy water flooded down the creek bed, dumping piles of rocks and gravel along its banks, Wochos said.
A second breach in April produced similar flooding and more debris, he said. But it wasn’t until early summer that the effect of the dam became most obvious. Stretching across the creek for about the width of a football field, the dam collects 100 percent of the upstream water flow. With all the water feeding the more-than-2-acre lake, none is left for the creek.
“The thing is completely dry,” said Scotty Steed, another downstream property owner, who purchased his land in 2000, in part because of its location on Kelly Creek. “I’m not a biologist, but there were tons of things that were living in that creek that are dead now. It is simple — they have got to have water to live.”
Federal law requires anyone building a dam over a waterway to seek a permit from the U. S. Army Corps of Engineers.
Smith didn’t request a permit before building the dam, said Ken Mosely, acting chief of the regulatory branch in Vicksburg, Miss., which covers that part of Arkansas. But after the Corps issued a cease-and-desist order for the dam in May, Smith submitted a request for an afterthe-fact permit, Mosely said.
“We are going to allow him to request a permit,” Mosely said, adding that Smith’s application hadn’t been completed. “We have not even really initiated the evaluation process yet.”
Permits generally are requested to build ponds or lakes to water livestock or for recreational purposes, said David Lofton, acting chief of the Vicksburg office’s enforcement division.
But many times, people don’t seek a permit before doing the work, Lofton said.
“What happens is people literally … just go out and do it over a weekend... and we don’t know about it for weeks or sometimes even years,” he said. “It happens all the time.”
To receive a permit, a property owner must go through several steps, including site evaluations, a public notice and comment period and evaluations of water quality, said Ann Woerner, chief of the evaluation division in Vicksburg.
In all “of our permits, you can’t adversely impact an adjoining property owner or an owner downstream,” she said, adding that she had no knowledge about the project in question.
Structural integrity also is important, Woerner said.
“We would not issue a permit for a dam [if ] the structural integrity was in question,” she said.
The evaluation process for a permit usually takes between 90 days and 120 days, Mosely said. If a permit isn’t granted, the owner generally must restore the property, he said.
The Arkansas Department of Environmental Quality isn’t involved in the review of the project at this point, said spokesman Doug Szenher, adding that the agency defers to the Corps regarding structures built over waterways.
But when a person applies for a permit from the Corps, the department must issue a water-quality certification stating that the project wouldn’t violate state standards, Szenher said. In this case, no request has been received for such certification, he said.
The U. S. Environmental Protection Agency also isn’t reviewing the project at this time, said Dave Bary, spokesman for Region 6, which includes Arkansas.
“We understand that the dam is unpermitted by the Army Corps of Engineers,” Bary said. “But the first level of authority in this from an enforcement perspective is the U. S. Army Corps of Engineers.... Until we are formally asked by the Corps to investigate, we would not.”
If the Corps were to request assistance, the EPA could order that the dam be removed or assess penalties if it were found to be in violation of the Clean Water Act, he said.
Wochos, who is representing himself in his lawsuit against Smith, said he doesn’t understand why a state or federal agency hasn’t acted yet to require Smith to remove his dam.
In a letter sent to the Environmental Quality Department, Wochos refers to Arkansas Code Annotated 5-72-107, which states that a person operating a dam “shall at all times keep the dam or other obstruction open so as to permit a flow of water sufficient to maintain fish life in the stream below the dam.”
He also cites several Arkansas court cases, which he says back up his claim that Smith is not entitled to take 100 percent of the water in the creek.
“According to state law, this is a slam dunk,” Wochos said of his case.
After months of complaining with no response, he said he decided to take matters into his own hands.
His lawsuit, filed in U. S. District Court in Hot Springs on July 16, asks a judge for injunctive relief, directing Smith to restore water flow to the creek, to obtain weekly water-quality analysis, to stop further work on the dam, to create a plan to alert downstream homeowners of a dam breach, to install waterquality monitors, to obtain liability insurance, and to remove debris downstream.
He also is seeking damages for loss of property value and the loss of an unnamed business venture.
“Smith didn’t care that his lake would: threaten any and all with danger and disease; grow bacteria and dump effluent; inundate an oil-laden county road; inundate homeowners ’ property; ‘weep’ and seep due to permeation; dump oil and trash into the creek; impact water quality; destroy creek water flow; foment mosquitoes and weeds; and wipe out animal species,” Wochos writes in his lawsuit. “Each and every downstream property owner has been, and continues to be, harmed by Smith’s dam.”
In addition to adverse environmental effects, Wochos argues that the dam isn’t built to appropriate standards and is in danger of breaching in a major rainfall.
“Smith has repeatedly demonstrated total incompetence in all aspects of dam design and construction and complete disregard for federal and state requirements,” Wochos writes in the lawsuit. “A few of the present dam’s deficiencies include lack of: compaction, curtain, lining, weir, foundation, proper ‘slider box’ soil analysis, erosion control, etc. As a result, the Smith dam will eventually fail with the only remaining questions ‘when,’ ‘ how spectacularly, ’ and ‘ did anybody get killed ?’”
Smith has until Aug. 11 to respond to the lawsuit.
Meanwhile, Wochos also has filed an emergency motion asking a judge for an order to restore water flow to the creek. That request has been referred to U. S. Magistrate Judge Barry Bryant.
Irene Drallmeier, another downstream neighbor who sells real estate, said she also would like to see water return to the creek.
“It does add to the property value,” Drallmeier said. “We chose our house plan based on having a view of that stream.”
During the spring, when Smith’s dam failed as he was building it, Drallmeier said a torrent of water rushed through the creek bed, overflowing the banks and dumping large amounts of debris, gravel and silt all over her property.
“Ever since last spring, we noticed the stream seemed to be stirred up and a bit muddy and silty, when it had always been pristine and clear,” she said. “We have had a whole lot of gravel and silt wash into our property after some heavy rains.”
In addition to environmental and property value concerns, Drallmeier and other downstream property owners say they have safety concerns.
With their home on flat land close to the creek, Scotty Steed and his wife, Tami, said they worry that if Smith’s dam fails, all of the water held in the lake will have to go somewhere, and their home will be in its path.
“If it fails, my house will be one of the first to flood,” Tami Steed said.
Wochos said he plans to keep pressing to make sure that concerns about the dam are addressed.
“I’m not a tree hugger,” he said, “but I’ll be damned if I sit still and see a viable, year-round creek turned into a mosquitofilled pit.”
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