Buffalo River 


  • 19 Aug 2018 3:32 PM | Anonymous member (Administrator)


    Groups say Arkansas' impaired-waters plan falls short 

    by Emily Walkenhorst

    State regulators' proposals do not go far enough in addressing impaired waters in the state, representatives of environmental groups told the agency during a public hearing Friday.

    Representatives of groups focusing on the Buffalo River and its related rivers, and the Illinois River and its tributaries, argued for requiring some of the waters to have total maximum daily load studies that would place restrictions on the facilities that discharge into those waterways.

    The Arkansas Department of Environmental Quality, which created the impaired-waters list, will accept public comments until mid-September before finalizing the list and sending it to the U.S. Environmental Protection Agency for final approval.

    A representative with Oklahoma-based Save the Illinois River Inc. argued that some Illinois River tributaries listed in previous years should be listed in 2018 and asked the department to provide data showing that the tributaries did not need to be listed.

    About 14 miles of the Buffalo River and about 15 miles of its Big Creek tributary are listed as impaired on the basis of water samples that showed high E. coli levels, according to Arkansas Department of Environmental Quality data obtained under the Freedom of Information Act.

    Those waterways are listed as impaired, but they are under Category 4b, which means they don't need total maximum daily load studies because of other work being done on them. In their case, the Arkansas Department of Environmental Quality determined that a watershed management plan for the river that was completed this year is a sufficient substitute.

    A Category 5 listing carries the requirement of a total maximum daily load study.

    During a 15-minute question-and-answer period, Caleb Osborne, the department's associate director in charge of the Office of Water Quality, told about 40 people that total maximum daily load studies take years to do. The watershed management plan and the river commission are active and can do work alongside other advocates now, he said.

    "So we're going to know if our work gets us there or not," he said, referring to C&H Hog Farms, a 6,503-hog facility along Big Creek about 6 miles from where the creek meets the Buffalo River.

    The department will do another list in two years, Osborne said.

    Many disagreed with the department's choice.

    While some said they liked the watershed management plan, they noted that the plan is not regulatory and can't address permitted facilities that people may believe are contributing to water degradation.

    Therefore, it's not sufficient for ensuring the river's improvement and eventual removal from the impaired-waters list, said Gordon Watkins, president of the Buffalo River Watershed Alliance.

    "Are we supposed to ignore the 800-pound hog in the valley?" he said.

    Watkins noted that the Buffalo River is an extraordinary resource water and deserves more protection.

    Jessie Green, executive director of the White River Waterkeeper, mentioned that the department does not have an implementation plan for anti-degradation, or rules designed to prevent any degradation of extraordinary resource waters and other waters under the Clean Water Act. Under the act, rivers like the Buffalo are supposed to be protected from any degradation, and potential degradation is supposed to be considered when permitting a facility.

    Other commenters referred to a study on how water flows into and out of Big Creek, which they believe supports their theory that C&H Hog Farms is contributing pollution to the creek and then the Buffalo River.

    A dye-tracing study conducted in 2014 by retired University of Arkansas, Fayetteville, professor John Van Brahana showed the path of water under the karst terrain near the Buffalo, they said. Water flowing in the Buffalo's watershed doesn't follow the expected rules of water flow, meaning water can move upstream through cracks in the ground.

    Research conducted by the Big Creek Research and Extension Team shows that C&H Farms is not the source of E. coli, said John Bailey, director of environmental regulatory affairs for the Arkansas Farm Bureau, after Friday's hearing.

    E. coli levels are higher upstream from the farm, and soil filters any manure spread on the farm's land, Bailey said. Recent research has not shown high E. coli levels at drinking water wells on the farm's property, he said.

    The state department stated that the reason for the high E. coli levels, noted in the list as "pathogens," was unknown.

    Ed Brocksmith, a founder of Save the Illinois River, told the department that the state should get numeric standards for nutrients like phosphorus and nitrogen that are of concern on the Buffalo and the Illinois rivers. The area where the Illinois River flows into Oklahoma has phosphorus levels that are higher than Oklahoma's numeric criteria.

    In July, Save the Illinois River sent a letter to the Environmental Protection Agency objecting to its approval of the department's 2016 303(d) list, arguing that no change in total phosphorus had been shown to justify the removal of Osage Creek and Spring Creek in the Illinois River's watershed from the Category 5 list.

    The EPA said in its approval of the 2016 list last year that those creeks could be Category 4b because of existing efforts to improve the Illinois River.

    Those creeks were not listed as Category 4b in the 2018 draft.

  • 18 Aug 2018 2:07 PM | Anonymous member (Administrator)


    MIKE MASTERSON: Nutrients spilling over

    By Mike Masterson

    Posted: August 18, 2018 at 2:06 a.m.

    Since our state’s Department of Environmental Quality (cough) has decided to shirk its fundamental responsibility by using proxy groups without regulatory authority to simply monitor the ongoing contamination in portions of our Buffalo National River and its major tributary, Big Creek (both classified as impaired), I’ve decided to volunteer my assistance.

    As an amateur, I’ll nonetheless try to help identify the potential primary source of the documented low dissolved oxygen levels, excessive algae from too many nutrients, and the health threat from pathogens and bacteria living inside those blooms.

    The way things stand, the department has proposed classifying Big Creek and the Buffalo under a draft impairment category 4(b) reported to the EPA. Had it classified these streams differently, it would be required to identify and rectify the sources of impairment and address them. By opting for draft category 4b, the department conveniently allows itself to avoid determining the source.

    Deep within the records of one of those monitoring groups, (the Big Creek Research and Extension Team out of the University of Arkansas’ Division of Agriculture) I found numbers that might well point to the obvious primary cause.

    First, though, I researched the effects of excessive levels of phosphorus and nitrogen, both present in swine and other animal waste, when too much of either winds up in streams and lakes. Phosphorus is essential for plant life. Yet when an abundance of this fertilizer winds up in natural waters, the stuff can speed up a process called eutrophication (a reduction in dissolved oxygen in affected waterbodies caused by an increase of mineral and organic nutrients).

    Excessive nitrogen in natural waters can cause severe illness in infants and domestic animals. Common sources include septic systems, animal feed lots, agricultural fertilizers, manure, industrial waste waters, sanitary landfills, and garbage dumps.

    In excess, phosphorus and nitrogen will stimulate algae growth, which then reaches critical mass and dies. That condition ties up available oxygen in waterbodies, leading to dissolved oxygen depletion called anoxia, which is harmful to aquatic life.

    That sure sounds to me like what’s happened to Big Creek and our beloved Buffalo National River to land each on the latest list of impaired streams.

    My left eyebrow raised even higher when I got to page 83 of the Big Creek Research and Extension Team’s spring 2018 report. It belatedly revealed monitoring results from waste-spray fields at C&H Hog Farms.

    The recorded data for 2015 showed Field 5a near Big Creek, where raw swine waste is regularly spread, lost 77.3 percent of the applied phosphorus to runoff, while Field 12 lost 45.9 percent. The runoff amounts for nitrogen were measured at 52.9 percent for 5a and 24.8 percent for Field 12.

    That’s a lot of fertilizer spilling into Big Creek and through the Buffalo watershed. And that’s only the documented runoff from two of at least 16 spray fields. It doesn’t account for the unknown amounts of these contaminants that have been seeping for years into groundwater that steadily flows through the watershed’s fractured karst (limestone containing many fractures, voids, caves and solution channels) subsurface.

    As I understand it, the original plan, approved by the Department of Environmental Quality, was for vegetation to absorb the raw-waste nutrients applied to the spray fields. But what happens when the constant overload of fertilizer overwhelms the fields’ ability to absorb and utilize it is then followed by a storm event?

    The stuff not absorbed by plant life inevitably either runs off into Big Creek or soaks into the subsurface to drain rapidly downhill (proven by dye testing) through the karst for miles toward the Buffalo six miles downstream. It also becomes bound to those subsurface soils and stored as “Legacy P” (phosphorus buildup) to then be steadily released over many years.

    Andrew Sharpley, the UA professor who directs the Big Creek team, has written about how storm events cause runoff from fields loaded with excessive nutrients. For example, a 1999 report in which he was the lead author says in some agricultural watersheds, 90 percent of annual algal-available phosphorous drainage originates from only 10 percent of the land area during just a few relatively large storms.

    The report cites the example of more than 75 percent of annual water discharge from watersheds in Ohio and Oklahoma occurring during one or two severe storms, contributing over 90 percent of their annual total phosphorus exports.

    It gets even more ominous. In another article, Sharpley wrote that phosphorous buildup in soils can require up to a century to return to normal.

    In other words, the excess phosphorus C&H applies today (and over five years) can be expected to continue leaching into Big Creek and the Buffalo. For me, this means even Best Management Practices (BMPs), which Sharpley and the Watershed Management Plan tout as solutions, may only exacerbate the problem.

    A person close to the matter offered a clear overview: Sharpley’s earlier research tells us what’s going on at C&H. C&H fields are receiving more phosphorus than the pasture grasses can use (approximately 80,000 pounds in excess per year, according to C&H’s Nutrient Management Plan). These fields were already saturated with the stuff. When we have only a handful of severe storms each year, up to 90 percent of the annual load of phosphorus is transported to Big Creek and through the watershed.

    Earlier research shows it’s happening, he further explained. In 2015, the Big Creek team managed to capture such an event and a large percentage of the phosphorus and nitrogen C&H applied to those fields was shown to have run off into Big Creek. However, most fields are not monitored, nor are the amounts of nutrients entering the subsurface drainage network. Nutrients are increasing downstream from C&H and, lo and behold, Big Creek and the Buffalo are now impaired.

    Hopefully this helps identify a potential primary source of our national river’s serious problem. Now, Arkansas Department of Environmental Quality, what will you do to resolve these disgraceful impairments?

    Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.

  • 13 Aug 2018 7:21 AM | Anonymous member (Administrator)

    KUAF Public Radio

    Buffalo National River Issues Hazardous Algae Alert, New Independent Algae Survey Team Forms


    The new alert, which regards a significant algae bloom in the Buffalo National River, warns visitors to avoid primary contact with algal infested waters. In the meantime, a survey team led by independent scientist Teresa Turk this month will assess the extent of algal growth in the waterway.

    Listen to the full broadcast here

  • 12 Aug 2018 2:30 PM | Anonymous member (Administrator)

    Democrat Gazette

    No recuse for Buffalo

    The state Pollution Control and Ecology Commission did not demand Gov. Asa Hutchinson's February 2018 appointee, Mike Freeze, recuse from a vote regarding C&H's 6,500-head hog farm. Curiously, Administrative Law Judge Charles Moulton didn't either.

    Referring to a recent article in the Arkansas Democrat-Gazette: The alleged result is a man that twice sent letters supporting C&H prior to his appointment, a man that remains a paid member of the Farm Bureau State Board of Directors, and a contributor to C&H's legal team, has since appointment voted to allow C&H to continue to operate on an expired permit, and failed to recuse himself.

    Mike Freeze has been cut some slack by the commissioners who serve with him, but he has yet to clearly exhibit the ability to compartmentalize his personal entanglements from his tasks as a commissioner of the Pollution Control and Ecology Commission.

    So an observer could be forgiven for concluding Mike Freeze has failed to dutifully serve the people of Arkansas, and is simply continuing his past behavior.

    If Mr. Freeze were to resign, I have no doubt the governor would be far more admired for accepting the resignation.



  • 07 Aug 2018 11:13 AM | Anonymous member (Administrator)


    MIKE MASTERSON: Watchdogs' bias

    Impaired Buffalo

    By Mike Masterson

    It's troubled me for years that our Department of Environmental Quality (cough) relies on the Big Creek Research and Extension Team, with an obvious agricultural bent toward protecting C&H Hog Farms, to authenticate any contamination leaking from that facility into adjacent Big Creek.

    Dr. Andrew Sharpley with two team members-to-be, including the extension agent for Newton County, were working with the C&H owners in their capacity with the University of Arkansas extension service before former Gov. Mike Beebe formed that team from within the university's Division of Agriculture.

    When the university accepted that watchdog responsibility to document and prevent harmful effects to our Buffalo National River, Sharpley became its chairman. At the time they were called the Big Creek Research Team. The agricultural term "extension" was later added reportedly at the suggestion of a university extension service employee.

    For me and others, the team's focus on agriculture rather than environmental sciences represents a conflict of interest that has shaken trust in anything it reports, or doesn't. Sharpley has been grilled about his biases in a deposition where he denied any conflict of interest.

    I was especially troubled by his actions in initially failing to readily disclose to the Department of Environmental Quality the results of Dr. Todd Halihan's 2015 electrical resistivity imaging tests, which revealed an apparent subsurface fracture beside one of the factory's waste containment ponds.

    I'm also bothered by the failure to acknowledge increasing levels of fertilizer-generated nutrients found in the Buffalo tributary Big Creek until the mess became bad enough to deem the creek impaired.

    This and more indicates an unacceptable agenda to assist and protect C&H rather than as an impartial watchdog over the Buffalo, portions of which also are now officially contaminated.

    And because of the state agency's politically efficient draft 4(b) category of these impairments, the department is not required to discover why. Being listed 4(b) means it need not determine the source of low dissolved-oxygen levels and the river's massive algae overgrowth containing pathogens, some harmful to humans.

    Adding to the politicized aspects of such failure to protect both Ozark streams, the governor has appointed two members to the state's Pollution Control and Ecology Commission who are openly supportive of the mislocated factory with 6,500 waste-generating hogs.

    Gov. Asa Hutchinson appointed Commissioner Mike Freeze in February, even after Freeze had sent two letters to the Department of Environmental Quality avidly supporting C&H. He is a fish farmer and a paid member of the Farm Bureau's State Board of Directors that also contributes to C&H's legal team.

    Because of his obvious conflict, Freeze was asked last week to recuse from voting in the commission's review of a finding by Administrative Law Judge Charles Moulton. Moulton recommended denying a motion by C&H attorneys seeking to allow the factory's original discontinued operating permit to remain active indefinitely. Freeze said he refused to recuse because he supposedly knows more than when he was appointed in February and therefore could be impartial (cough).

    Then commissioners voted 8-3 to approve Moulton's recommended denial.

    The other commissioner I believe clearly supports the factory in its present location is Bruce Holland, a former legislator and cattleman, who also directs the Arkansas Natural Resources Commission. His deputy director, Ryan Benefield, was the Department of Environmental Quality's assistant director when that department approved the factory's original 2012 permit. Holland's position matters because his commission is among the groups supposedly assigned to monitor Big Creek.

    Freeze and Holland voted against Moulton's recommendation that determined C&H's coverage under its original Regulation 6 general permit had indeed ended in January when its application for the Regulation 5 permit was denied.

    C&H lawyers had argued to commissioners that the factory's original general permit coverage should continue indefinitely anyway until being replaced by a Regulation 6 individual permit.

    To swallow that illogical argument, one would have to agree the factory's Regulation 5 permit application (and resulting process requiring almost two years to process before being denied) was an exercise in futility. The judge's recommendation was approved despite Holland's and Freeze's no votes, along with that of retired farmer Rusty Moss of Dermott.

    The argument in favor of continuing C&H's general permit coverage until it is replaced by an indefinite individual permit was in this instance ludicrous, as Moulton's opinion more politely pointed out.

    And the willingness of Holland, Freeze and Moss (none lawyers) to vote against Moulton's reasoned findings I believe spoke volumes about any self-proclaimed greater knowledge and impartiality.

    In light of such obvious bias among some commissioners responsible for policing pollution and enhancing ecology (not assisting agriculture), I'm hoping our governor will embrace fairness and balance by appointing commissioners from the Buffalo River Watershed Alliance and the Sierra Club.


    Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.

  • 06 Aug 2018 1:02 PM | Anonymous member (Administrator)

    KARK News

    ADEQ Releases List of Impaired 


    of Water

    Jessi Turnure

    NORTH LITTLE ROCK, Ark. - The Arkansas Department of Environmental Quality (ADEQ) released a list of lakes and streams Thursday that fall below its standards.

    The proposed list is part of a report the Federal Clean Water Act requires Arkansas to submit to the EPA every two years.

    The final list to the EPA will only include Category 5 impaired bodies of water, the worst ranking that means these assessment units may require the development of a total maximum daily load (TMDL), the maximum amount of a pollutant that a body of water can receive while still meeting water quality standards.

    According to the proposed list, Category 5 waterbodies identified as high priority include Bayou De L'outre, Mulberry River and Hicks Creek. 

    A notable body of water landed in Category 4, which means its quality falls below standard but does not require a TMDL because the issues can be addressed through already-established, state-controlled measures. 

    ADEQ found four parts of the Buffalo River's watershed have the potential for bacteria, two segments of the Buffalo River and one segment of Big Creek with pathogens and a second segment of Big Creek with dissolved oxygen. 

    "We have not had listings in this location before," said Caleb Osborne, the associate director of ADEQ's Office of Water Quality. 

    However, since the findings are based on about five years of records, the state agency wants water sports lovers to know they do not have to cancel their plans. 

    "That should not hinder them from their use and their enjoyment of the river," Osborne said. 

    Some question if the issues stem from a controversial hog farm in the watershed. 

    "Some folks might try to draw a correlation or relationship between those two," Osborne said. "Based on the information we have right now, we can't say that because the type of data and information we have doesn't lead us in that direction."

    Osborne said many factors could contribute to the problems, even recreational activity.

    While ADEQ continues its research and efforts to restore the quality of the watershed, the public can weigh in on the proposed list during a hearing Aug. 17 at 1 p.m. at ADEQ's headquarters. 

    "We want the public who has an interest in the water that is in their county or their neck of the woods to take a look, to better understand what's going on around them and share feedback for us," said Osborne. 

    You can also email comments to WaterbodyComments@adeq.state.ar.us before Sept. 10. 

    To see the 2018 proposed bodies of water in the form of an interactive map, click here.

  • 06 Aug 2018 8:31 AM | Anonymous member (Administrator)


    RICHARD MASON: Back to the 1970s

    By RICHARD MASON Special to the Democrat-Gazette

    This article was published August 5, 2018 at 2:38 a.m.

    Members of the present administration in Washington and Little Rock are trying their best to bring back the 1970s--environmentally.

    In 1969, a polluted river in Cleveland caught on fire. The Houston ship channel was an oily sewer, New York City's dirty air was almost toxic, and the idea that a person would swim in the Hudson River was considered a joke.

    That national environmental nightmare brought about the Clean Water Act of 1972. Later the Clean Air Act and the Endangered Species Act passed in a remarkable bipartisan effort.

    Fast forward to 2018 and take a look at the outstanding improvements in air and water quality, our forests and wildlife. In order to achieve this impressive improvement the EPA, Congress, and individual states have had a role in enforcing mandated regulations. Some states have made a lot more progress than others, Arkansas is near the bottom in spite of having the potential to actually be the Natural State.

    Yes, you got it, we're moving in reverse with our governor, congressmen, and the Arkansas Department of Environmental Quality making sure we bring up the rear. Our attorney general's lawsuit against the EPA to prevent certain smokestack emissions from coal-fired electrical generating plants is a good example. To reduce the mercury spewing into the atmosphere from coal-fired plants with the potential to harm a mother's fetus is dismissed as being too expensive.

    You might be naive enough to think no one in their right mind would want to reverse the outstanding national progress that has been made under Republican and Democratic administrations. If you believe that, you are dead wrong, and are using alternative facts.

    Today the EPA and the president, using executive orders, are working to reverse the environmental progress made. They are being assisted by Congress and some individual state agencies. It's is a nationwide rollback, from allowing coal mining in national forests to denying climate change and everything in between.

    But let's look closer to home. We have four congressional representatives, two senators, and a governor who can influence and enhance the EPA in its rulemaking, and certainly can have an overall impact on the president's executive directives. What would I give the environmental score for our congressmen, governor, and president?

    I'm generous when I give the whole sorry bunch an F without using profanity. Want local examples? Let's start with the Buffalo National River. If you have read the papers lately, you know 14 miles of the river is now polluted. Nothing has appreciably changed on the watershed except for ... oh, you guessed it ... the hog farm. Each year the hog farm spreads hog waste on 11 fields near Big Creek. Oh, by the way, Big Creek has also turned up polluted. What a coincidence!

    The last time I checked the science books, water still runs downhill, and downhill from Big Creek is the Buffalo National River. Only 14 miles of the 150-mile Buffalo are polluted according to the latest tests, but what will future years bring? Answer: More and more pollution until swimming will be restricted, and ultimately the river will resemble a hog farm sewer.

    I'm a geologist who knows the topography and the karst (Swiss cheese) Boone Limestone rock strata that the hog farm and the fields on which they are sited. They are dumping hog farm waste on land that has a direct subsurface conduit to our national river. The tremendous amount of hog waste dumped makes it virtually impossible for the river not to be polluted.

    The governor could stop the pollution source tomorrow, but instead he appointed a Beautiful Buffalo River Action Committee--it's hard to say that without laughing--which has no authority to act on the hog farm. It is just a smokescreen. Anyone who follows political maneuvers knows appointing a committee is a politician's way to not act, but to pretend concern about a problem.

    The governor is not alone in failing to come to the river's rescue. Congressman Bruce Westerman, at a Hot Springs Coffee with Your Congressman event, was asked: "Congressman, do you believe C & H Hog Farms will pollute the Buffalo River?" His answer was recorded by several individuals. "I think the folks who canoe on the river and urinate in it will pollute the river more than the hog farm."

    The hog farm dumps the waste equivalent of a city of 20,000 onto the Buffalo watershed and the congressman can dismiss it? Well, a pro-hog farm congressman who will let the Buffalo continue to be polluted won't get my vote this fall.

    Congressman Westerman doesn't have the backbone to have a town hall meeting to explain his position. He's also a back-to-the-'70s congressman who has proposed the Resilient Federal Forests Act of 2017, a thinly designed bill to make our national forests into timber farms. His bill restricts public comments and allows up to 10,000 acres to be clear-cut without public input.

    Next time you see him ask how much money forest products companies have contributed to his campaign. It's north of $100,000. He's in the corporate timber companies' hip pocket--right next to their wallets.

    I wish that were all of the rollback to the '70s, but it's not. A bill to gut the Endangered Species Act is on the table. Based on the sorry environmental record of our elected officials, they will pass it, and we can kiss the bald eagle, the grizzly bear, the gray wolf, and a raft of other species goodbye.

    There's a bottom line to all of this, rooted in this administration's goal to roll back environmental progress When 194 countries and the pope are committed to fight global warming and our country is backing out of the Paris Accord as the administration tries to deny climate change--all for coal miners--and when the same Congress is trying to gut every environmental act and our congressman are happily going along with the president, you know it's time to do the only thing we can--vote 'em out!

    Richard Mason is a registered professional geologist, downtown developer, former chairman of the Department of Environmental Quality Board of Commissioners, past president of the Arkansas Wildlife Federation, and syndicated columnist. Email richard@gibraltarenergy.com.

    Editorial on 08/05/2018

    Print Headline: Back to the 1970s

  • 06 Aug 2018 6:53 AM | Anonymous member (Administrator)

    KUAF/ Ozark at Large

    Hundreds of Arkansas Waterways Draft Listed as Ecologically Impaired


    Listen to the broadcast here.

    biannual review categorizes more than a thousand Arkansas waterways according to levels of impairment, with the worst cases requiring federal and state intervention. This year, several sections of the Buffalo River Watershed were included on the list for the first time, categorized as lower priority, but the Buffalo River Watershed Alliance says the watershed requires high priority federal attention. A public hearing will be held at 1 p.m. Aug. 17 at Arkansas Department of Environmental Quality headquarters in Little Rock.

  • 03 Aug 2018 9:20 AM | Anonymous member (Administrator)

    Arkansas Times

    Richard Mays fights pigs, pollution 


    plans for bigger highways

    The blight-buster.

    By Leslie Newell Peacock @eyecandypeacock

    click to enlargeWORK ON I-630 WIDENING: Mays failed to get an injunction against the project that started last week. He took issue with the highway department's exclusion from doing an environmental assessment.

    • WORK ON I-630 WIDENING: Mays failed to get an injunction against the project that started last week. He took issue with the highway department's exclusion from doing an environmental assessment.

    For reasons that will perplex and surely distress the people who come after us, the folks who fight to keep our air and water clean and limit the degradation to our natural world are usually on the losing side of that fight. Developers, the side with the money, usually win, thanks to prevailing philosophies that money is almighty and people have dominion over the earth.

    Still people fight for a healthy environment, and when they do, they hire Richard Mays, considered by those who work with him to be unparalleled when it comes to understanding the National Environmental Policy Act and how business interests try to get around it. "He's one of the top [attorneys] by far, in the state if not the region," said Judge David Carruth of Clarendon, who worked with Mays to halt the Grand Prairie Irrigation Project until it could be designed in a way that would not harm the White River. "He's probably one of the most knowledgeable guys on water issues," said Glen Hooks, the director of the Arkansas chapter of the Sierra Club, who worked with Mays to ameliorate the detrimental effects of the Turk coal-fired plant in Southwest Arkansas.

    In North Arkansas, it's the monitoring of the pig farm on a creek that feeds the Buffalo National River that keeps Mays busy. In Russellville, he's known as the man who's helped delay for nearly 20 years a slack-water harbor and transportation hub the city hopes to build on the Arkansas River, in a floodplain south of town.

    In Little Rock, it is highway widening that has people knocking on Mays' door.

    Two weeks ago, Mays filed a request in federal court for a temporary injunction against the Arkansas Department of Transportation's project to widen two-and-a-half miles of Interstate 630 from six lanes to eight. The project will cost $87.3 million and require the demolition and reconstruction of three bridges between University Avenue and Baptist Health. The highway department persuaded the Federal Highway Administration that no environmental study was needed on the project. Mays, attorney for plaintiffs David Pekar, George Wise, Matthew Pekar, Uta Meyer, David Martindale and Robert Walker, argued that the project didn't qualify for such an exclusion. Federal Judge Jay Moody denied the request for an injunction, and the widening project has begun.

    You win some; you lose some. In 2004, federal Judge G. Thomas Eisele ruled against Mays and Carruth in their attempt, on behalf of the Arkansas Wildlife Association, the National Wildlife Association and others, to enjoin the Grand Prairie project to pump water from the White River to irrigate 250,000 acres of thirsty rice fields. The 8th Circuit Court of Appeals later denied their appeal of Eisele's ruling.

    But in 2006, federal Judge William R. Wilson ruled with Mays and Carruth, ordering the U.S. Army Corps of Engineers to halt construction on a pumping station that was part of the $319 million project until it could better study the impact of pumping on the ivory-billed woodpecker newly discovered on the Bayou DeView.

    "You just have to keep fighting, keep pushing back," Mays said in an interview last week. "You don't want to stop development, at least I don't. People have to eat ... [but] that doesn't mean you have to trash the environment."

    Carruth said he told Mays at the time that he wished the courts had ruled on the merits of their argument — that pumping water from the White would lower water levels and endanger wetlands, fish and other wildlife downstream "and that it cost too much money." Mays responded, "Instead, you gave them the bird."


    Gordon Watkins, president of the Buffalo River Watershed Alliance, which hired Mays to represent it before the Arkansas Department of Environmental Quality in cases involving the controversial C&H hog farm near a creek that feeds into the Buffalo, said it's more than Mays' expertise that's important to his group. "Lawyers can do whatever their clients ask, but to find a lawyer who actually believes in your cause is important to us, [someone who believes] we were right and would represent us with that in mind. His mind was in the right place; his heart was in the right place."

    Mays, 80, who has been an environmental lawyer for 40 years and worked for the Environmental Protection Agency for eight years in Washington, D.C., said he takes on such cases "because of the desire and the need to protect and help the world, if you like." He said his eight years at the EPA were some of the best years of his life. "I felt like I was really doing something I was philosophically interested in and wanted to do."

    Mays attributes his desire to protect the natural world to his childhood in El Dorado. "When I was growing up, my father would rather be hunting or fishing than anything on earth," Mays said. His father owned a grocery store, but on the weekends, "he would be out on the river or in the woods, and I was usually with him." And from his mother, he inherited an appreciation for literature and writing, "so that turned out to be a pretty good background for being an environmental lawyer," Mays said.

    Mays works in Little Rock (at least) two days a week, at the Williams and Anderson law firm. He commutes from his home at Eden Isle on Greers Ferry Lake. The case he won there, he says, is the one he's most proud of, since it concerned his backyard — literally.

    Mays moved back to Arkansas in 1998 after 20 years in D.C., buying a home on Eden Isle. He chose the area because of Greers Ferry Lake and the Little Red River. Right after he took up residence there, the Corps of Engineers proposed a shoreline management plan that would open up the undeveloped main lake to boat docks. The lake is zoned, with boat docks in the coves only and the main body of water reserved for public recreation. "It's unbroken shoreline," Mays said, "with not a whole lot of boat docks and clear water, clean water."

    Mays was thinking it was a bad idea, and so was Carl Garner, the retired resident engineer who had worked at the lake since its construction began in 1959, a man so connected to Greers Ferry Lake that his name appears on the visitor center there. Garner called Mays on the advice of a mutual friend and Mays invited him over. "I expected to see somebody walk in, a whip-cracking authoritarian type, somebody who looked like George Patton with jodhpurs, and there this guy walks in and looks like Ichabod Crane," Mays said of Garner, who died in 2014. They became good friends and with other residents formed Save Greers Ferry Lake, which hired Mays to file a preliminary injunction against the Corps' plan. He won, and the plaintiffs and the Corps eventually settled. Greers Ferry Lake remains mostly undeveloped.

    It may seem like such a victory — for aesthetics — isn't as important as, say, keeping the highway department from doubling the size of I-30 through downtown Little Rock or a coal plant from spewing mercury into the air. There were arguments to be made about increased water pollution on the lake. But protecting the lake was "a personal thing," Mays said. It was important to his family and others, "a place where you go to feel refreshed."

    "People can get very caught up, and justly so, in a place where they can feel like they are in communication with nature, with God, if that's what you're into. That's what makes environmental law practice so interesting to me. I feel like it's preserving things we need to have."

    That kind of emotion and love for place is what saved the Buffalo River from being dammed and what keeps its advocates fighting to keep the beautiful national treasure clean.


    Mays said he figures he gets a good outcome in his cases about half the time. Environmental cases are "very difficult" to win, he said, because "courts give considerable deference to agency decisions. If you're trying to overturn ADEQ or EPA or the federal highway administration, you're fighting an uphill battle."

    Settlements are hard to get as well, Mays said. But that's what he got when he fought the Southwestern Electric Power Co.'s coal-fired Turk Plant in Fulton. The Sierra Club and the Audubon Society, both national and the state chapter, challenged the plant's water permit from the Corps of Engineers in 2010 and won an injunction. But that was just a portion of the plant; construction continued. Still, with the conservationist's good outcome on the injunction, SWEPCO agreed to a settlement that would allow it to complete the plant. In return, the company fitted the plant with more equipment to reduce emissions and agreed to shutter another coal-fired plant in Texas sooner than planned.

    Mays' 50-50 record held true in a hearing last week before the Arkansas Pollution Control and Ecology Commission for ADEQ, when Mays (on behalf of the Buffalo Watershed Alliance) and Sam Ledbetter (representing the Ozark Society) suggested that newly appointed Commissioner Mike Freeze recuse from decisions on C&H. They cited Freeze's emailed comments on C&H's permit application in 2017 in support of the hog farm — in which he wrote "enough is enough" in the permitting process — as evidence the commissioner could not be impartial. The commission, however, voted to support Freeze's refusal to recuse.

    But after Mays and Ledbetter argued later in the same meeting that the administrative law judge for the Commission was correct in his finding that the hog farm's extended permit wasn't perpetual, the Commission agreed, voting to support the administrative judge. It was a win for conservationists and a win for Mays. Mays told the Commission that the lawyer for the hog farm had tried to make a silk purse out of a sow's ear. The ADEQ previously denied a second permit for C&H. The hog farm appealed that decision and can continue to operate while an administrative law judge considers the appeal.

    So while an outright win may be hard to get, fighting wide roads and coal plants and hog waste on various fronts, including noncompliance with the National Environmental Policy Act, also helps delay the degradation, and "you may be able to wear them [the opponents] out," Mays said, or national policies may change that may hinder the project. That was the case in the Grand Prairie Irrigation Project: When Judge Wilson issued the order requiring study to protect the bird, the federal government had already pulled funding for the project. (The project continues, but with a greater dollar burden on the state and the encouragement of conservation strategies by farmers.)

    More often, however, the development side of the equation in litigation has more money and more lasting power.


    Many people who haven't previously been wrapped up in environmental cases are now, thanks to the potential impacts of the 30 Crossing project, the highway department's plan to replace the Interstate 30 bridge and widen I-30 for a little over 7 miles at a cost of $630 million. ARDOT wants to double the width of the interstate through downtown Little Rock by building two connector-distributer lanes on either side of the highway to provide exit from and entrance to I-30.

    When I-30 was built in the 1950s, neighborhoods east of the interstate fell into decline. That area, buoyed by the Clinton Presidential Center and Heifer International, is now experiencing a renaissance, with a new school, new restaurants, new housing and new businesses. Its progress follows the revitalization of the west side of the interstate, with the old downtown resuscitated by the River Market district and new development attracted to Main Street north and south of Interstate 630.

    • The logic behind 30 Crossing, says its foes — and there are many in Little Rock — is outdated. The transportation design ignores alternatives to using downtown Little Rock and North Little Rock as the main thoroughfare to highways north and south. It does not contemplate alternatives to cars, such as public transit or bicycle and pedestrian transportation. While cities such as Portland, Ore.; Rochester, N.Y.; Milwaukee; Boston; San Francisco; New Haven, Conn.; Seattle and Dallas are tearing down interstates and replacing them with people- and business-friendly boulevards and parks, Little Rock and North Little Rock are about to get more concrete.

    Opponents of highway widening — including neighborhood associations, downtown residents, a retired Texas transportation executive and a retired economist and natural resource planner — have hired Mays to represent them should the Federal Highway Administration issue Finding of No Significant Impact (FONSI) in its evaluation of the Environmental Assessment on 30 Crossing to green-light the highway project. That finding could come as early as mid-August, according to the highway department.

    On July 27, at the end of a 45-day public comment period on ARDOT's draft Environmental Assessment, Mays filed a 16-page comment challenging, among other things, the department's traffic modeling and its ignoring the indirect impact of induced travel on communities outside the project area. It notes the lack of consideration of HOV (high-occupancy lanes) lanes or other routes to handle the rush hour traffic that ARDOT gives as its reason for widening and its failure to "fully address" health effects from air pollution caused by increased traffic.

    The comment also suggests that Arkansas — which has the 12th largest highway system in the country, with more highways to maintain than Illinois, California, New York and Florida — struggles to maintain the roads it has now. It points to a column written by state Highway Commissioner Alec Farmer in Arkansas Talk Business in which Farmer says ARDOT needs $400 million in new highway funds simply to maintain what is built now, and that revenues from the gas tax will decline as more electric cars are built.

    Mays said that the 30 Crossing project presents "an opportunity to force the agencies involved — state and federal — to take a hard look at updating the thinking toward highway traffic, how to handle highway traffic by means other than simply putting more lanes on the highway. I believe we're on the cusp of a breakthrough on technology that will affect our highway travel dramatically."

    The 30 Crossing widening is designed to address traffic in "design year" 2041, when ARDOT says 153,000 vehicles per day will use I-30. The highway department's preferred model, six lanes of through traffic and four collector-distributer lanes, would allow cars traveling south on I-30 during afternoon rush hour to travel at 30 to 50 miles per hour (considered a "somewhat congested" situation). That suggests there will be two decades of smooth sailing through Little Rock, no rush hour traffic at all.

    "It's ridiculous to think that you can predict that far," Mays said. "It's a total mistake to do [the widening] at this time. It was the thing to do in the '50s and '60s, but not now," given the technology — like self-driving cars and new safety-features being built into vehicles — that will be available in not too many years from now.

    What we don't need, he said, is to spend nearly a billion dollars on highway projects in Central Arkansas in the anticipation of a transportation future we can't predict.

    The highway department, using funds from a $1.8 billion bond issue funded with a tax increase approved by voters, is spending nearly $90 million on the widening of I-630 (three times its estimated cost), which has already started; an estimated $80 million on widening Highway 10 (previously estimated at $58 million); $23 million on new ramps at Highway 10 to I-430 northbound; and a figure estimated a couple of years ago at $630.7 million on 30 Crossing.

    (Dale Pekar, who is one of Mays' clients, raised the issue of cost in his public comment on ARDOT's draft environmental assessment. ARDOT says if construction — which is being combined with design — costs more than the funds available to the project, contracts will be let "at a future date" to complete the project. Pekar said that provision "makes the entire analysis unreliable," and if ARDOT comes up short, it should take it from low-priority projects — which is what it threatened Metroplan it would do if the planning agency didn't agree to add lanes to the corridor.)

    click to enlargecover_story1-5-57a2a2f2fb0b7772.jpg

    "I'm not opposed to spending money in this area," Mays said, "but I don't know how the people in the rest of the state feel about it. It seems to me we ought to be thinking about how we can get more value [from the $1.8 billion total] for a longer period of time, rather than more lanes that may or may not be used in 20 years."

    It's no surprise the highway department wants to build highways rather than think about transportation holistically. (ARDOT used to be the Department of Highway and Transportation, but recently dumped Transportation from its name, perhaps to fend off suggestions it thinks differently.) "It's a matter of mindset. This is what they get paid to do." Figuring into that is what Mays called "bureaucratic inertia."

    "Sometimes you have to force their attention by filing lawsuits. I've found that, sometimes, litigation is the best way to bring about change ... or at least, to get their attention."  

  • 03 Aug 2018 7:13 AM | Anonymous member (Administrator)

    Letter to Editor Arkansas Democrat Gazette

    Agency must do job

    The Arkansas Department of Environmental Quality put out a press release last month announcing that long stretches of the Buffalo River and Big Creek, one of the largest tributaries of the Buffalo, are "impaired." For those not fluent in bureaucratic language, "impaired" means polluted. The Buffalo River, Arkansas' best known scenic river and biggest tourist attraction, is polluted. In parts of the river system there is no longer enough dissolved oxygen in the water to support a healthy aquatic ecosystem (no fish) and there are so many pathogenic bacteria in the water that no one should allow their children to swim in it. The Arkansas Department of Health is now reporting that it may not be safe for my dog to swim in some sections of the river.

    This information is not news to the people who live and work on the river or to the scientists who monitor its water quality. The news is that the state has finally admitted that the river is polluted, and water quality is getting worse.

    Sadly, in the same press release, the agency announced that it plans to do absolutely nothing about the pollution. The excuse for doing nothing to correct this environmental and economic disaster that it allowed to happen is that there is a watershed management plan already in place for the Buffalo River. The plan is a collection of voluntary suggestions put together by a loosely organized group of volunteer landowners and non-government organizations and state and federal agencies. The Buffalo River plan specifically does not provide any way of preventing or reducing pollution of the river other than unenforceable voluntary recommendations. Cleaning up the Buffalo River is the job of the Department of Environmental Quality and so far, it is refusing to do it.

    Does the agency not care enough about the Buffalo River to start working on a solution to this situation, or is it hoping the federal government will step in and do the job?



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