Saturday, September 6, 2008

Mill Creek - ADEQ Holds Public Meeting Following Stream Inspection

Previous Blogs:

Tammi Trotter's report of the meeting with Theresa Marks

Bartmess Open Pit Mine Application

Friends Website:

Desecration of Mill Creek

Says land and stream-bank clearing caused extensive silt damage to valuable Mill Creek

ADEQ Director Theresa Marks and staff were the main speakers on August 27th at a public meeting at the Calico Rock Music Hall. Their appearance followed an inspection of the B&H Resources, LLC. proposed open cut sand mine site bordering Mill Creek. The clearing of vegetation from the bank and the area above the creek caused extensive silting of Mill Creek and downstream into Piney Creek beyond the confluence of Mill with Piney Creek. Although Mrs. Marks acknowledged that the March storms which led to the flooding along the entire White River Basin also caused erosion along many of the tributary creeks, the B&H stripping of all vegetation from the bank and the plateau above significantly affected the magnitude of erosion in this area and was the major contributor to the amount of silting along Mill Creek along the stretch of creek along the site and downstream.

Previous to this meeting, the ADEQ investigative team had performed an extensive technical evaluation of Mill Creek that included measurements of the amount of silting from 0.7 mile upstream of the proposed mining site to well below it. Evaluations were made as to the susceptibility of the bank to erosion based on the geological composition as well as the vegetation covering the bank. Measurements were taken on riffle areas as well as in the “holes”. Riffles were covered by sand/silt to a depth of over 6” in some areas, and holes, originally in the 4 to 5 foot depth range were completely filled.

ADEQ can and has sought financial recovery judgment for damages to the environment caused by violators, but as yet has not made any decisions to pursue restoration damages for restoration of the stream bed. At this time they are pursuing restoration of the bank with B&H Resources.

Besides personnel from the ADEQ Water, Mining and Legal divisions, there were local and state legislators, representatives of Friends of the North Fork and White Rivers (FNFWR) and its’ affiliated group, Friends of the Mill and Piney Creeks (FMPC) which organized this public meeting, and George Bartmess, one of the partners of B&H Resources, LLC and owner of other lands which border Mill Creek.

Steve Drown, ADEQ Chief Deputy Director, said the Mill/Piney Creek watershed includes about 37,000 acres. Drown used soil morphology and vegetation data to indicate susceptibility to stream-bank erosion, and said many areas of Mill Creek are highly susceptible to erosion.

Drown showed slides conveying:

  • silt’s complete coverage of gravel riffles downstream from the B&H mine site;
  • silt filling pools previously four to five feet deep;
  • the bank had been cleared of vegetation for approximately 3/4 of a mile ;
  • cuts down the stream-bank to the water, apparently made for equipment access to the creek;
  • evidence that a large scoop had pulled sand up the bank from the edge of the creek;
  • vegetation had been stripped from the land above stream-bank but some weeds/grasses were beginning to grow back in the mostly sand field;
  • deep gully erosion across the cleared area above the bank and into the creek in the proposed mining area;


Teresa Marks in July issued an emergency stop order against B&H. In that order, B&H was required to submit to ADEQ a stream restoration plan, along with additional information required for permit consideration. B&H has not yet submitted the plan, nor has B&H submitted any further information required for evaluation of its application for a permit to conduct the open pit mine.

In response to audience questions, Teresa Marks told the audience ADEQ was pursuing a restoration plan for the bank, but that it may be impossible to actually restore the riffle/pool natural environment without further damaging the stream bed; she said the creek may have to recover naturally over time.

In response to another question, Jim Stephens, Chief of the Mining Division stated that maximum fines for violations are $1000 per day for the first offense, provided an ADEQ representative is present each day to observe the contamination taking place; however, ADEQ said it does not currently have sufficient personnel to visit violating sites daily. Damage awards for the specific destruction to Mill Creek itself may be sought through judicial proceedings.

Teresa Marks said an applicant for a mining permit may not conduct any clearing prior to ADEQ’s official issuance of a permit, which would indicate B&H clearing operations were in violation of state law.

“At this point, the B&H open pit mine application is in limbo, and I doubt if ADEQ will move forward on the application until a restoration plan has been received and approved,” said Jerry Weber, FNFWR President. “In fact, they may never issue a permit,” he added, noting that Marks had in the meeting suggested the geological makeup of the area likely makes this location nonviable as a mining site.


Local Residents Filed Complaints

  • Individuals from FMPC and FNFWR had previously filed complaints with ADEQ regarding silting observed on Mill and Piney Creeks in Izard County. Heavy equipment was seen clearing vegetation from the bank and operating in the creek bed and the sand bank was being cut down. Investigation indicated B&H Resources, LLC, the property owner had begun clearing for a commercial sand mining operation prior to having received ADEQ approval for this planned open cut mine. By the time ADEQ inspectors visited the site in response to these complaints, equipment operators had completely cleared the stream-bank and many acres of land above the creek along a significant stretch of Mill Creek (see July newsletter). Following the report by the ADEQ inspector, Director Marks issued an “Emergency Order” which ordered B&H to stop all operations until the site has been approved for operation and, to prepare a restoration plan for the Mill Creek bank to be reviewed and approved by ADEQ.

  • Local residents and recreational users of Mill Creek report that the heavy silting has made sections of the stream non-navigable, that swimming holes are now completely filled with silt, and that fishing has been severely impaired. In fact, since the silting occurred, no one has reported seeing any trout in the area of the proposed mine.

Why did it take ADEQ so long to act?

1. The process itself is time-consuming.

  • After receiving a complaint, ADEQ sends an inspector to visit the site and determine if a violation has occurred and the extent of damage. The inspector has 3 days to visit the site, then writes up his/her report and sends it through supervision.
  • ADEQ then must write a letter to the property owners stating how they are in violation and what must be done.
  • The property owner/business has 10 days to respond, and should they not respond then ADEQ can issue an order to stop operations.

2. Shortage of ADEQ Field Staff

  • ADEQ has only 1 open pit non-coal mining inspector, and about 15 water division inspectors.
  • The Fayetteville Shale mining has put a tremendous burden on ADEQ
  • ADEQ funding is limited and controlled by the legislature;
  • State Senator Paul Miller said to place more inspectors in the field and ADEQ funding would be a high priority in the upcoming legislative session. Mr. Miller is on the legislative budget committee. And he indicated that the legislature would also be addressing the fine structure associated with violations, especially with regard to repeat offenders.

Erosion Control Ordinance:

Baxter County’s new Erosion Control ordinance would have allowed the County’s immediate issuance of a stop work order against the B&H site, before significant damage had occurred. Apparently Izard County’s ordinance in association with joining the National Flood Insurance Program also requires that a mining operation to be conducted in the flood plain requires a County permit which was not applied for by B&H.

Citizen Action:

“I want to acknowledge Tammi Trotter and the Mill Creek Friends crew which organized this meeting for all of their work. This ADEQ action really shows that local citizen groups can make a difference in Arkansas, and will hopefully encourage other citizens to form like groups when they see damages to the environment in their regions” said Jerry Weber.

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