DECEMBER 15-16, 2005

Property Owners Challenge Beaver Lake Condos – The Morning News Was it Legal? – Benton County Daily Record Septic/Wastewater: Group Considers Maintaining Septic Tank Pumping Systems – The Morning News Elkins Awaiting Decision from Fayetteville on Lower Sewer Rates – Northwest
Arkansas Times

Watershed Ordinance: Watershed Ordinance Draws Mixed Reactions - The Morning News

Illinois River Watershed: Partnership Hopes Protect Water Quality – The Morning News Illinois River Protection Group Chooses a Board – Arkansas Democrat-Gazette

Environmental Concerns: Group Posts Sign About Moark ‘Stink' – Neosho Daily News Message to RES: Abate All Odor Now – The Carthage Press

By Joseph Askins The Morning News Friday, December 16, 2005 http://www.nwaonline.net/articles/2005/12/16/news/bentonville/02bzcondoappeal.txt

BENTONVILLE -- Six county residents beat the deadline Thursday to appeal the Benton County Planning Board's approval of a controversial condominium development on Beaver Lake. The property owners delivered their complaint to the county judge's office shortly before 5 p.m. They had 30 days to appeal the Planning Board's decision, which was made during the early hours of Nov. 17. Springdale attorney Tom Kieklak filed the appeal on behalf of Lane and Stacy Gurel, Earl and Donna Kisling and Richard and Rubina Hill. The clients all own land adjoining the Grandview Heights at Beaver Lake planned unit development on Guyll Ridge Road, east of Avoca. E&S Development and Properties plans to build three condominium high-rises on 174.5 acres near Coose Hollow in eastern Benton County. "This appeal is brought because the project did in fact fail," Kieklak wrote in his letter to Benton County Judge Gary Black. "It has been allowed to survive only because an illegal second vote was taken after the project failed to garner enough votes to pass." The board initially split 3-3 on the measure late in the evening on Nov. 16. The tied vote should have ended all consideration of the project for one year, according to the appeal. "Unless a measure or project receives a majority vote, it fails," Kieklak wrote. The board instead recessed to allow E&S representatives to confer and revise their project. E&S attorney Courtney Little eventually offered to reduce the size of the project's first high-rise from 25 stories to 15 stories. Board members approved Little's proposal by a vote of 4-2 shortly after midnight on Nov. 17. Developers spoke to at least one board member during the recess "to cajole one more vote out of the board," according to the appeal. John Butler initially voted against the project, saying he was worried about the buildings' heights, but voted in favor of the second, revised plan. Several people in attendance said they witnessed Butler speaking to E&S project coordinator Kevin Harrison during the recess. Little's revisions should have constituted a new submittal and received new public comment, Kieklak wrote. "This (E&S's revised plan) means that an entirely new project was submitted, one that was not represented in plans, drawings, description or public notice," the appeal stated. "This second, illegal vote cannot stand. Instead, the project must be treated as any other before the Benton County Planning Board. The legitimate vote of the board on Nov. 16, 2005, must be recognized and followed.

"As a result, the Grandview Heights Condominium project should be barred from consideration until November of 2006." The appeal also stated E&S did not properly notify the Kislings and Hills of the project's Oct. 26 and Nov. 16 public hearings as required by county law. Harrison on Thursday said he had not read the appeal and would not comment on any of Kieklak's claims. Black will appoint a three-person appeal board to hear the appeal. The board will consist of three justices of the peace. The appeal board may refer the project back to the Planning Board, affirm the board's decision, modify the decision or overturn the decision.

BY JENNIFER TURNER Benton County Daily Record Posted on Friday, December 16, 2005 URL: http://www.nwanews.com/bcdr/News/28956/

BENTON COUNTY — Neighbors to proposed condominiums on Beaver Lake appealed the Benton County Planning Board‟s approval of the project in a letter faxed Thursday. The Benton County Planning Board made the decision to approve E&S Development and Properties‟ plans for Grandview Heights on Beaver Lake — three multistory buildings near Avoca — shortly after midnight Nov. 17. Tom Kieklak, a Springdale attorney representing adjoining property owners Lane and Stacy Gurel, said in an appeal letter filed Thursday that the final vote was illegal. "The second vote, and the secret and private meeting that occurred during a break of the Planning Board meeting, which led to the second vote, amounts to an illegal „two bites at the apple,‟ which violates the Benton County Code, Arkansas law and the very concept of due process," Kieklak said in the letter. After an initial vote signaling apparent deadlock, the board that night approved planned-unit development plans for the project on a second vote. The first vote was tied 3-3 with board members Tim Sorey, Melana Ewing and Scott Borman voting to approve the project and Bill Kneebone, John Butler and Don Phillips voting to deny it. Board member Adele Lucas was absent from the meeting. During board deliberations, Butler said the building height of 25 stories was a factor for his dissenting vote. As the board discussed its next step, Courtney Little, a Fayetteville attorney representing E&S Development, requested a five-minute recess to confer with his clients regarding a reduction in height of the buildings.

After the recess, the board reconvened, and Little offered up a compromise of 15 stories. Butler said he was more comfortable with that and offered a motion of approval. That measure was approved 4-2 with Butler the only board member to change his stance from the initial vote. Kieklak contends that any item before the board must receive four votes to pass. When the first vote received only three "yes" votes, the project should have failed, Kieklak said. "These neighboring landowners were utterly robbed of due process while the board staff and the supporting board members altered the project in order to cajole one more vote out of the board," he said in the letter. "This means an entirely new project was submitted, one that was not represented in plans, drawings, descriptions or public notice." Kieklak asked in the appeal letter, addressed to Benton County Judge Gary Black and copied to Benton County Planning Director Michelle Crain, that the first vote stand and the project be denied. As a result, the Grandview Heights Condominium project would be barred from consideration until November 2006. Kieklak also contends that the Planning Board did not follow county regulations for large-scale developments or conform to the goals and objectives of the county‟s regulation book. In addition, he said neighboring landowners Earl and Donna Kisling and Richard and Rubina Hill were not notified of the meetings at which the Planning Board discussed the condo project. Through the appeal process, Benton County Judge Gary Black will appoint three members of the Quorum Court to an appeals board. Those members will determine if the Planning Board erred in making its decision to approve the condo project.

By Lori Harrison-Stone The Morning News Friday, December 16, 2005 http://www.nwaonline.net/articles/2005/12/16/news/rogers/03rznaca.txt

ROGERS -- A proposed condominium development on Beaver Lake includes a septic tank effluent pumping system that the Northwest Arkansas Conservation Authority might end up owning and maintaining. John Sampier, executive director of the authority, told the Board of Directors on Thursday that developers of Grandview Heights have approached him about taking over the sewer system. Sampier said the proposal hasn't been formally offered, but he wanted board members to know it had been discussed. "We're certainly in the watershed protection business," Sampier said.

Donnie Moore, authority chairman, said condominiums are going to happen on Beaver Lake and it's important that the sewer systems that accompany them be maintained by an organization that's going to be around. Moore said developers will put in the system, and as the property changes hands over the years, it's possible the sewer system will lose importance and not be properly maintained. "The biggest liability is to let those things happen without somebody out there taking a look at these systems," Moore said. Cave Springs Alderman Larry Fletcher said that city has a septic tank effluent pumping system put in by a developer, and a sewer improvement district has been formed there to maintain it. "That technology is here and going to be in this community," Fletcher said. George Spence, a board member from Bentonville, said what he doesn't want to happen is for the authority to get distracted from its mission of developing a regional sewer system. Sampier agreed and said the authority would wait to see if the issue is formally proposed. In other business, the board approved the final paperwork on the nearly $3.9 million purchase of property from Bentonville for its sewer plant. Bentonville Mayor Terry Coberly said she was "thrilled" that the agreement was finalized. The board also approved a contract for engineering services with Burns & McDonnell Engineering of Missouri. The first authorization of the contract is for $1 million in services.

BY SUSANNAH PATTON Northwest Arkansas Times Posted on Friday, December 16, 2005 URL: http://www.nwanews.com/nwat/News/35493/

ELKINS — Officials are still waiting for the city of Fayetteville to sign a contract that will reduce sewer rates to Elkins customers by more than 50 percent. At a City Council meeting Thursday, Elkins Mayor Jack Ladyman said the Fayetteville City Council will discuss the contract Tuesday. "Depending on if they pass it or how they pass it, we may have to amend our ordinance," he said. The ordinance establishes a contract between the two cities to substantially lower the charge for the collection, treatment and discharge of sewer received from Elkins. The contract, if adopted by Fayetteville, will lower Elkins‟ sewer rates from $5.71 per 1,000 gallons to $2.81 per 1,000 gallons. The contract also includes a refund to Elkins by retroactively adjusting the sewer rates dating back to March 1.

The proposed contract also states that both cities agree that Elkins will pay an additional 25 cents per 1,000 gallons of billed sewage beginning Jan. 1, 2006, to fund Elkins‟ portion of future capacity enhancements to Fayetteville‟s treatment facilities utilized by Elkins. Ladyman said the city was hoping to see the lower rates reflected on December water and sewer bills but the issue was tabled by the Fayetteville City Council last month because the contract was in the form of a resolution and needed to be written as an ordinance. If the contract is adopted by Fayetteville next week, Ladyman said, they will have to make the reduction in rates retroactive in order for rates to go into effect for December. The Elkins City Council will hold a special meeting Wednesday to act on the ordinance based on Fayetteville‟s decision.

By Joseph Askins The Morning News Thursday, December 15, 2005 http://www.nwaonline.net/articles/2005/12/15/news/bentonville/02bztechnicaladvisory.txt

BENTONVILLE — A Beaver Lake watershed protection ordinance received mixed reaction from Benton County residents Wednesday, prompting the Benton County Planning Board to consider scheduling more public hearings on the proposal. Approximately 25 people attended Wednesday‟s hearing, which was held at the end of the board‟s monthly technical advisory meeting in Bentonville. Seven people from the audience spoke in favor of the plan, which also drew criticism from six residents. The ordinance, written by the Beaver Water District, limits development in four concentric special-use areas adjacent to the lake. Each special-use area is a quarter-mile in width and has specific land use restrictions. The ordinance allows only small-family residential and low-impact agricultural land uses in the area closest to the lake and gradually includes commercial and light industrial uses in outer areas. The ordinance also establishes buffers of vegetation 150 feet from the centerline of all streams in the watershed. Some types of land use, including landfills and mining operations, are prohibited completely within the entire protection area. Rogers resident Mark Curtis urged the board to support the district‟s plan to curb pollution of Northwest Arkansas‟ drinking water. Curtis, who recently opposed the construction of high-rise condominiums near Coose Hollow, took a cue from that project‟s developers by displaying a jar of mostly clear lake water. “We‟d like to keep the lake that way as best we can,” Curtis said, pointing to the liquid.

Curtis‟ prop didn‟t impress Board Member John Butler, who has repeatedly expressed concern about the ordinance‟s restrictions. “If your home were to become worthless as a result of this ordinance, would you still support it?” Butler asked. “Absolutely,” Curtis said, drawing scoffs and heckling from the audience. Several opponents said they worried about the ordinance‟s impact on business along Arkansas 12. Don Day, who owns 6 acres along Arkansas 12, described the concept as “economic death,” since the ordinance would prevent existing commercial and industrial companies inside the first two special-use areas from expanding their developments. Kenneth Schossow, who owns 1.5 acres on Anchor Drive near Arkansas 12, asked board members whether the ordinance was necessary when other state and federal agencies regulate environmental quality. “How, with an ordinance like this, are you going to do anything for the people of Northwest Arkansas when you already have statutes in place for pollution?” Schossow asked. Several planners said they wished to see a final draft of the ordinance before forwarding the document to the Benton County Committee of 13 and Quorum Court for approval. Board members Don Phillips and Bill Kneebone said they wanted to hear more comment from the public before deciding whether to support the plan. Planning Director Michelle Crain said the Planning Board would revisit the issue at the board‟s technical advisory meeting at 5:30 p.m. Jan. 11 at the county administration building.

By John L. Moore The Morning News Friday, December 16, 2005 http://www.nwaonline.net/articles/2005/12/16/news/regional/03azillinoiswatershed.txt

SPRINGDALE -- The newly formed Illinois River Watershed Partnership is open to anyone willing to help protect water quality in the watershed, delegates at a summit at the Jones Center for Families in Springdale said Thursday. In three hours, more than 30 delegates voted to form the nonprofit corporation with the mission of improving the health of the Illinois River. Conservation groups, farmers, construction and business groups, city governments, county officials and area residents are all represented on the board of directors of the newly formed group.

The group also selected a name that is meant to encourage participation from people in both Arkansas and Oklahoma. Northwest Arkansas faces increasing pressure to decrease excess nutrients and sediment in the Illinois River. The partnership also elected a board of directors with 28 members, elected officers and agreed to go after almost $70,000 in grants from the federal Environmental Protection Agency and the Arkansas Natural Resources Commission. The summit is the second held in the past four months. Delegates at the first meeting voted to have a steering committee prepare a plan to form a permanent partnership. The group is needed to help act as a clearing house for information, said Kurt Moore, a Benton County Justice of the Peace. "There are a lot of individual activities going on, but no one knows what the other hand is doing," Moore said. Mark Simmons, chairman of Simmons Foods, said he wanted the group to maintain diversity with its elected officers to reflect the diversity of the group. "We particularly don't want people to believe it is a front for the poultry industry," Simmons said. "Or the construction industry," said Jan Skopecek, executive director of the Northwest Arkansas Home Builders Association. The group also hopes to include more members from Oklahoma, choosing to remove the reference to 'Upper Illinois' in favor of creating a group dedicated to the entire watershed. Bev Saunders, one of the founders of Poultry Partners and an Oklahoman, was elected to the board. The watershed is split between Arkansas, where the headwaters are, and eastern Oklahoma, where the river is dammed to form Lake Tenkiller, which then flows into the Arkansas River. The board agreed to meet again at 7 p.m. Feb. 15 at the Jones Center.

BY ROBERT J. SMITH Arkansas Democrat-Gazette Posted on Friday, December 16, 2005 URL: http://www.nwanews.com/adg/News/139715/

SPRINGDALE — The Illinois River Watershed Partnership spent Thursday morning naming 28 board members, picking an executive committee and defining a mission of protecting the river, which flows from Northwest Arkansas into Oklahoma.

It marked the beginning of what members hope will be years of effort to safeguard the river that‟s been at the center of a two-state water-quality dispute. “The trick is to maintain your momentum,” said Shawn Grindstaff, a facilitator with The Forrester Group, a St. Louis company paid to help the organization with its formation. “There will be little battles to be fought, but the biggest battle is momentum. The real test comes six to 12 months from now — do you still have that same energy and zest six months from now ?” The board members represent agriculture, business, government, construction companies and conservation groups. Luanne Diffin, environmental services coordinator for Rogers Water Utilities, will serve as the board‟s first president. “So much happened today that it was unbelievable,” she 1 said after the 3 / 2-hour meeting. The group identified several ways it plans to protect the watershed, including best management practices, water-quality monitoring, education, community outreach and ecosystem restoration projects. The watershed partnership plans to file papers within the next month with the Arkansas secretary of state‟s office requesting nonprofit status. Diffin said the partnership is modeled after the Bayou Bartholomew Alliance, a nonprofit group incorporated in 1995. The bayou starts northwest of Pine Bluff and flows 359 miles before crossing into Louisiana. The organization‟s members include people in both states that represent industries, agriculture, environmental groups and others. “We want to reach out to all the stakeholders,” Diffin said. “We‟re not just Arkansasbased.” Sixty people interested in water-quality issues met Sept. 28 and formed a 15-member steering committee to talk about a structured regional group meant to protect the Upper Illinois River. Gone from the group‟s original concept is the first word in “Upper Illinois River” because members want to include Oklahoma groups. Bev Saunders, who lives just across the state line in Colcord, Okla., is the only Oklahoman on the board. Saunders also serves as a spokesman for Poultry Partners, a group of 400 farmers who live in western Arkansas and eastern Oklahoma. Simmons Foods Chairman Mark Simmons, who will serve as the group‟s vice president, said he wants to make sure the organization doesn‟t “look like a front for the poultry industry.” “Or the construction industry,” said Jan Scopecek, director of the Northwest Arkansas Homebuilders Association. Northwest Arkansas‟ poultry industry and Arkansas government officials have been in a bitter dispute with Oklahoma over water quality. In June, Oklahoma Attorney General Drew Edmondson sued eight poultry companies in U. S. District Court, saying the companies let phosphorus-laden poultry waste pollute the Illinois River, one of Oklahoma‟s protected waterways which is designated by that state as a scenic river. The companies Edmondson sued were Cargill Inc. of Minneapolis ; Cobb-Vantress Inc. and Simmons Foods Inc., both of Siloam Springs ; George‟s Inc. of Springdale ; Peterson Farms Inc. of Decatur ; Tyson Foods Inc. of Springdale ; Willow Brook Foods of Springfield, Mo. ; and Cal-Maine Foods Inc. of Jackson, Miss.

Arkansas Attorney General Mike Beebe, a candidate for Arkansas governor, stepped into the fight last month, asking the U. S. Supreme Court to get involved. In his Supreme Court filing, Beebe contends Edmondson is trying to impose Oklahoma laws on Arkansas companies. Edmondson said last month that the poultry industry “has control of Arkansas government” and Beebe wouldn‟t be interested if he weren‟t running for governor. Edmondson was unavailable Thursday to comment on the new watershed partnership, his spokesman said. While the new watershed partnership is still in its infancy, it‟s already fretting about money. Some board members made $ 25 contributions. They talked about getting an $ 8, 500 grant from the Arkansas Natural Resources Commission. Separate money could come in a $ 44, 843 grant from the Environmental Protection Agency to pay for an Illinois River Watershed Week to promote river protection. If the EPA provides the money, that event would be in the spring 2007. It‟s also possible that some of the $ 500, 000 poultry companies promised to a Northwest Arkansas group will come to the watershed partnership. The companies promised to spend the money in Northwest Arkansas at the same time they gave a $ 1. 1 million gift in September to the Oklahoma Scenic Rivers Commission. Simmons said it hasn‟t been decided for certain who will receive the money meant for Northwest Arkansas. “That money hasn‟t been designated yet, but a group like this would qualify,” Simmons said. “That would make sense.”

By Wes Franklin Neosho Daily News Friday, December 16, 2005 http://www.neoshodailynews.com/articles/2005/12/15/news/news01.txt

They may have lost the first round, but in the eyes of some local residents the bout still continues. Rick Bussey, who owns a small farm just down the road from the Moark Hathaway Farm site, was the first to file an appeal after the Missouri Department of Natural Resources last month granted Moark its long-sought operating permit to expand its Neosho egg-laying operation on Highway D to about 3.5 million chickens total. According to one of several stipulations in the permit agreement, an air research station must be constructed and maintained on-site. The DNR and Moark will use the information from the yettranscendental research station to evaluate odor levels and emissions and possibly modify Moark's odor control plan.

But many residents - especially those who have fought Moark's expansion plans almost from the moment they were first announced last February - are skeptical. That's one of the reasons Bussey spent most of Wednesday afternoon erecting a sign on the southside of Highway D - just before the entrance to Moark's Neosho plant - in hopes of getting more people involved in the issue by pointing them in the right direction. The $400 billboard, paid for by members of Southwest Missouri Citizens Against Local Moark Expansion, in bright visible lettering reads “Report odors to DNR 455-5156. Day or Night.” “People shouldn't have to smell that crap every time they go to work or go outside to do something and they ought to know where to call,” Bussey said. Bussey, who built the sign, said the idea came up during one of the SWMCALME meetings after the Moark operating permit was approved. The smell from millions of chickens has simply ripened to the point of being unbearable, Bussey said, devastating the surrounding air quality. “It's not like we're out here dealing with regular agriculture smells, like a barnyard-type of smell,” Bussey said. “This is rank. There's nothing good about it. You can't function out here. You can't do your work while the smell is just engulfing you and it affects everybody it comes across. This is just one company's greed to make money and they could care less what they're doing to other people. We want to try and put a stop to it and get them to clean their act up.” Bussey said that he and the rest of the citizens making up SWMCALME think the sign is a good way to remind the DNR that Moark still has a bad odor problem, mainly because nothing has been done to reduce it. Bussey alleged that, by law, Moark is supposed to have an odor control plan in place but never has, something he said the DNR has been aware of for at least a couple of years. Bussey said the plan is supposed to include planting trees and shrubs to help contain the smell but that the DNR has told Moark they don't have to plant anything until next fall. “But you know it takes a tree a long time to grow and it's not to say it's ever going to solve anything but it's the only law they have for odor control right now,” Bussey said. “We're just trying to bring to light about how bad it does stink out here. Everybody that drives through here to work knows how bad it is and they get tired of it. And now we have a number out there they can call to complain.” Bussey said he thinks the sign will get a positive reaction from passers-by as more and more people are pointed in the right direction as to who they can contact. “As bad as the smell has been I think we will get good response - we've already had a good response as far as people calling,” Bussey said. “Crowder (College) has been calling in, everyone around here has been calling - we never knew you could call in. But now we're finding out things we can do. We're tired of it. For 20 years we put up with it and it was so stupid to do that. We're tired of it.”


Dennis W. Sowers The Carthage Press Thursday, December 15, 2005 http://www.carthagepress.com/articles/2005/12/14/news/news1.txt

Phones calls to the Department of Natural Resources reporting odors are apparently successful, even if a violation for Renewable Environmental Solutions isn‟t the desired result. City Attorney David Mouton said the Attorney General‟s Office was aware of the 16 phone calls placed last Wednesday to DNR‟s Springfield office. “Apparently, DNR received enough phone complaints that the AG took notice,” Mouton said. Mouton said that the city and state will tell RES on Jan. 6 at a meeting to “abate all odors immediately.” He said that DNR is not always on the same page despite lingering odors. Meanwhile, the litigation continues. RES is due to give a status report Jan. 6 to the complainants. Mouton said there has been no formal notification of an agreement by RES. “RES has been anxious to put the lawsuit behind them,” Mouton said. “We‟ve been anxious to have the problem fixed.” Mouton said a Dec. 3 e-mail to his office was an update by the plant manager. “They indicated they‟re using mineral building last week,” he said. “Apparently, they‟ve installed the permanent ozone generator. “All the more convincing are odors, strong odors.” A pair of council members agreed with Mouton‟s assessment in their final comments for the evening. Councilmember Jackie Boyer said the odor was “horrendous” last Wednesday. She did not get any comfort from a DNR employee when she called that day. “Whoever took the call said, „you‟ve got to learn to live with it,‟” she said. Councilmember Jim Woestman also learned from last week‟s odors. “Unfortunately, we still have a smell problem,” Woestman said. “I think everybody knows that.”

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