For Arkansas' White River Irrigation District — the overseers of a planned $320 million irrigation project in the state's rice-rich Grand Prairie region — it's one down and one to go.
On April 6, the Arkansas Supreme Court unanimously affirmed a lower court decision dismissing a suit filed by the National Wildlife Federation and the Arkansas Wildlife Federation. Now, the district faces only a federal suit brought to protect the ivory-billed woodpecker.
Both skirmishes center around an Army Corps of Engineers-backed irrigation project planned to bring water to some 900 farmers. The water will be taken from the nearby White River — which happens to feed the White River Refuge, a huge swath of old-growth timber — and delivered to farms via pipes and canals. Construction on the $35 million chief pumping plant has already begun near Devalls Bluff, Ark.
The project is needed, say proponents, because the alluvial aquifer beneath the prime rice-growing region has been pumped to the brink of collapse. The project is an attempt to use more surface water as an alternative to sinking more and deeper wells into the aquifer. If ground-water pumping rates in the area haven't changed by 2015, geologists say, the aquifer will be exhausted and won't recover.
Since plans were first announced in the late 1990s, the project has been dogged by conservationists, municipalities and some area farmers claiming a variety of problems will result from pulling White River water. On top of the rancor, last year ornithologists claimed to have evidence the ivory-billed woodpecker, long thought extinct, had been found in the refuge. Teams of scientists and birders still remain in the area trying to find the elusive bird.
Conservationists are “disappointed” with the recent Arkansas Supreme Court decision, says David Carruth, AWF president and lifelong resident of Clarendon, Ark., a town on the White River. “I thought we'd win this one. About the only followup we could do is to ask the court to reconsider its ruling. We may or may not do that. Given the nature of this lawsuit, it isn't something that can move into the federal courts for relief. For this go-round, I don't think things can go any further.”
Calling the appeal a “jurisdictional skirmish, more or less,” Tom Fortner, WRID deputy director isn't surprised the supreme court found in the district's favor. “That suit was over two claims made by the Wildlife Federation. One claim was that anything having to do with fish or game — when involving water — should be in the charge of the Arkansas Game and Fish Commission (GFC), not the Soil and Water Conservation Commission (recently renamed the Natural Resources Commission). The second issue was the NRC didn't have the authority to be a sponsor of the project.”
Only two Arkansas state agencies are independent and constitutionally-created: the Game and Fish Commission and the Highway Commission. All other Arkansas state agencies are part of the executive branch.
“The (NRC) is a creature of the executive,” says Carruth. “The governor controls the agency staffs and he can fire the director and appoint commissioners. In the GFC and Highway Commission, the commissioners hire the directors.”
Carruth says according to state law, the GFC should have exclusive jurisdiction over fish and wildlife resources. “The particular statute we were dealing with gave the (NRC) its authority and showed a conflict between the two. When there's a conflict between a constitutional provision and a statutory provision, the statutory must yield to the constitutional.”
The state Supreme Court never got to the constitutional question. The case was decided on other grounds.
“They didn't have to determine which was stronger: constitutional or statute,” says Carruth. “I thought the statute issue was a strong one. But they didn't get to it. Sometimes that's how it works out.”
One to go
The ivory-billed woodpecker lawsuit is still pending before Judge Bill Wilson's Eastern Arkansas District Court. Conservationists are seeking an injunction to stop the project. Judge Wilson has yet to rule.
“If you look at where the district is, it isn't the habitat of the woodpecker,” says Fortner. “It's a timber bird and, basically, all the work we'll be doing is in cropland. The only thing that could possible impact the bird is 2 miles of 10-foot diameter pipeline that goes from the pumping plant to the Grand Prairie. It hits the bottom end of the wildlife management area. Those are 200-foot to 250-foot wide easements.”
After the bird was discovered, Fortner says, the district inventoried the land.
“We had to (check) a mile on either side of that area and identified any cavities that could possibly be a nesting or feeding area for the woodpecker. There were a couple of cavities found and experts were brought in to check them. They weren't (related to the woodpecker). They found nothing.”
When the bird's discovery was announced last spring, project construction was halted for a few weeks. “We had to do an assessment that cost us about $200,000.”
The federal suit has to do with the Endangered Species Act (ESA). Under that act, whenever a federal government agency undertakes an action that could impact an endangered species, formal consultation with the Fish and Wildlife Service is required. The WRID project was up and going before the ivory-billed woodpecker was found.
“So, when it was found, the law required them to stop, do the consultation and, if findings warrant, pick back up and move forward,” says Carruth. “When the bird was announced last April, the Corps of Engineers stopped construction and engaged in the initial round of consultation. In two weeks, they released a letter saying, ‘We won't harm the bird.’
“The situation rocked along through last fall. Then, construction on the pumping site began. We said, ‘Hey, wait a minute. You're not through with the ESA stuff. You shouldn't be doing construction until you are.’”
The lawsuit was filed claiming the required consultation hadn't occurred.
“And even if (it) had, the finding of ‘no harm to the bird’ was ridiculous because: (A) they took only two weeks to check and (B) all the world's experts — and there are five — say, ‘We don't know what the bird needs. We don't know what will harm or help it. Until we do, no one can say what will help or harm this bird.’ If you've got five large woodpecker experts in the world saying they don't know what the bird needs, how can the Corps claim they know?”
Funding and the station
Meanwhile, the pumping station has been laid out and concrete is being poured. Last year, the federal government supplied $9 million for the irrigation project.
“That wasn't as much as we wanted, but it was more than most thought we had a chance of getting,” says Fortner. “The construction company can do more work than money available. So we've had to slow them down. They'll work through the year but won't do more than money allows. The construction contract was for three years when it was bid, so we may be a bit behind schedule. But work is continuing.”
Both proponents and opponents of the project say funding is a constant battleground. “We've fought funding since this started in 1999-2000,” says Carruth. “We'll continue to fight it.”
When first starting out, the WRID cited scientists' claims that 2015 was the drop-dead date for aquifer health. Now that the project has been constructed in spurts, has that date shifted?
“The 2015 deadline was if we'd done nothing,” says Fortner. “We've already got 248 on-farm contracts worth about $26 million of federal money along with about $14 million from the farmers. So around $40 million has been spent on farms resulting in over 100 new reservoirs and 47 rebuilt reservoirs. We're already using less groundwater than we were. We hope to begin delivering water on the upper end of the project in 2009 or 2010.”
The district continues to offer 10-year water contracts to farmers. The cost of water is $26 per acre foot.
“We've sold about a fourth of the water we need to sell. The water doesn't have to be sold until we begin delivering it. It will take a while to sell.”
And it may be a while before the WRID is finished with conservationist lawsuits. If the woodpecker suit fails at the district level, Carruth vows to take it higher.
“We'll take it to the Eighth Circuit Court of Appeals in St. Louis. If we're denied relief there, we'd petition the U.S. Supreme Court for review. There's a way to go before that, though.”