Adeq Sues Developer Over Run-Off

[Zack Hoyt]

ADEQ sues developer over run-off

By DWAIN LAIR

dwainl@harrisondaily.com

Published: Thursday, December 31, 2009 6:08 AM

YELLVILLE – The Arkansas Department of Environmental Quality (ADEQ) has filed a lawsuit seeking a quarter-million dollars in damages from a Marion County land developer.

According to the lawsuit filed Wednesday afternoon, Dec. 30, in Marion County Circuit Court, the ADEQ is suing Jerry K. Ott for a 20-acre subdivision, The Bluffs at Rivercliff, that is being developed on a steep hillside immediately downstream from Bull Shoals Dam. The lawsuit says runoff from the subdivision drains into an unnamed tributary that empties into the White River.

“Money damages cannot adequately compensate the people of the State of Arkansas for the damage being caused to the White River and other waters by continuing, unchecked sediment runoff from the subdivision,” the lawsuit claims.

The lawsuit says an ADEQ inspector initially discovered environmental violations of state regulations for erosion and sediment control during a Feb. 19, 2007, visit. At that time, the lawsuit notes that Ott was operating under a permit for a small development under five acres.

The lawsuit said the violations continued at inspections July 9, 2007, and Aug. 7, 2007. The ADEQ alleges the construction site had grown to 15 acres of disturbed areas, and Ott didn’t have an appropriate general permit.

The lawsuit said corrective measures were in place later that fall, and a large site general permit was issued Nov. 21, 2007. But inspections Dec. 19, 2007, and Jan. 9, 2008, found effective sediment and erosion control measures had not been installed or maintained.

The ADEQ instituted administrative enforcement proceedings, which were settled by a consent administrative order dated Aug. 6, 2008. An exhibit in the file shows the permittee agreed to pay a civil penalty of $9,850 and correct the violations.

The lawsuit allowed Ott to pay the penalty in $500 payments, and it says he made two payments in November 2008. The lawsuit says Ott failed to make any more payments or comply with terms of the consent order and bring the subdivision into compliance.

The lawsuit says Ott still owes $8,800 from the original consent order plus $221,000 for violating the consent order, an amount the lawsuit claims is continuing to accrue at the rate of $500 per day until he complies with the consent administrative order.

The lawsuit also seeks pre-judgment and post-judgment interest and costs of collections, including attorney’s fees.

The lawsuit alleges that sediment-laden runoff is a major source of water pollution, and turbidity from water runoff “particularly affects trout populations in the state's rivers and streams.”

The lawsuit filed by attorney Matthew K. Brown states, “a nuisance exists where the conduct of one landowner unreasonably interferes with the use and enjoyment of lands of another and includes conduct on the property which disturbs the peaceful, quiet and undisturbed enjoyment of nearby property.”

[Zack Hoyt]

This is the Aug 2008 agreement.

http://www.adeq.state.ar.us/ftproot/Pub/WebDatabases/Legal/CAO/LIS_Files/08-093.pdf

[snagged in outlet 3]

Good!! These guys need to show some respect for the rivers and other people that use them.

Thanks Zack.

[Zack Hoyt]

SO3, my "real" job is doing civil engineering.......so I can preach on erosion control measures all day!! Suffice it to say, there is absolutely no reason he should have been out of compliance. Especially after what happened with the norfork last year.

[snagged in outlet 3]

After reading the whole thing, it looks like he had to be told several times before he did anything. Thanks again Zack. I hope your casting gets better.

SIO3

[Gavin]

Sounds like this developer doesnt have 2 nickles to rub together..... Guess ADEQ can get a lien against the property...but cash or compliance seems doubtful. Cheers.