Arkansas Democrat-Gazette

Planned housing meets obstacles

Paradise Valley in water dispute

- PARKER MANCINO

Already the subject of a lawsuit filed by a group of nearby homeowners, Paradise Valley, a proposed 76-home subdivisio­n near Pinnacle Mountain, has run into further obstacles.

On Jan. 18, the subdivisio­n’s developer, Rick Ferguson, received a notice from the U.S. Army Corps of Engineers stating that it had “received reports that ground disturbing activities within the Paradise Valley Subdivisio­n … had resumed without a Department of the Army permit,” a violation of the Clean Water Act.

The Corps ordered Ferguson to “cease and desist from further work below the plane of the ordinary high water mark within Waters of the United States associated with the proposed Paradise Valley Subdivisio­n.”

Just over two months later, on March 21, the Pinnacle Mountain Community Coalition, a nonprofit group of property owners in west and northweste­rn Pulaski County, filed their second lawsuit over the project.

Then, on March 29, Charles Moulton, an administra­tive law judge for the state Pollution Control and Ecology Commission, recommende­d the permit for the subdivisio­n’s wastewater treatment plant be partially remanded back to state environmen­tal regulators for review on the potential for the plant to contaminat­e Maumelle Water Corp.’s public drinking water Well No. 1.

Moulton’s recommenda­tion came after a hearing in November on an appeal by the rural water utility and the Pinnacle Mountain Community Coalition of the state Department of Energy and Environmen­t’s Division of Environmen­tal Quality to grant the permit.

“Maumelle Water Corporatio­n has proven, by a prepondera­nce of the evidence, that there is a demonstrab­le risk that Well No. 1 could be negatively impacted by the … wastewater treatment plant,” Moulton said in his recommende­d decision.

Moulton will present his recommenda­tion to the commission for review at its next scheduled meeting, on April 26, Environmen­tal Quality Division spokespers­on Carol Booth said.

Although near Lake Maumelle, the source of drinking water for about 400,000 households in Central Arkansas, the subdivisio­n treatment plant is not in the lake’s watershed.

In a statement sent by email via an attorney, the nonprofit’s board described Paradise Valley as a “leap-frog” developmen­t and said the homeowners are “against a wastewater treatment plant in this loca

tion in a no flow and low flow stream near homes, wetlands, a community drinking water well and a culturally significan­t burial site.”

In its earlier lawsuit, the coalition warned that the proposed discharge from the facility would put Mill Bayou at risk for contaminat­ion and stated that wells at the bayou are used by Maumelle Water to serve 1,200 households around Roland.

“PMCC supports responsibl­e developmen­t including, but not limited to: 1) larger lots with septic; 2) lots consistent with the existing community rural character to preserve the area’s recreation­al amenities; 3) lots planned in terms of traffic patterns and congestion (this area plays host to major bike races and the addition of hundreds of homes tightly packed together will create traffic and safety concerns for bikers and Roland residents); and 4) lots that are compatible with existing infrastruc­ture,” the coalition’s board said in its statement.

Ferguson, in a phone interview on Tuesday, said he wants to increase the supply of affordable housing in the area, and he contended that state environmen­tal regulators will ensure that the treatment plant doesn’t jeopardize the quality of drinking water.

Referring to the property owners, he asked that the “small coalition stop discrimina­ting against other people who want to live in this beautiful area.”

The coalition, he said, should “respect other people’s property rights and treat others the way they want to be treated.”

“We want to be able to proceed to build this new neighborho­od full of new affordable homes and help people who want to move there to start and raise families — people like policemen, teachers, nurses, doctors, fireman, military and others — who want to buy a home but can’t find an affordable one in today’s market,” Ferguson said.

In its latest, 14-page lawsuit in Pulaski County Circuit Court, the coalition is appealing the county Planning Board’s decision to take no action in response to complaints by the coalition that the preliminar­y plat for the developmen­t violated subdivisio­n codes and that its Dec. 21, 2021, certificat­ion by the Planning Board director had expired.

Citing the the Corps of Engineers’ Jan. 18 notice, the suit also claims Ferguson had failed to obtain the necessary permit to allow the developmen­t to discharge dredged or fill material into the waters of the United States.

The Corps said in the notice that it would have to evaluate all phases of the proposed constructi­on before Ferguson is able to resume work in the area.

That would require the Corps to, at minimum, conduct a detailed alternativ­es analysis, cultural resources survey and a cumulative impact assessment of the project, the Corps said in the notice.

The violation was referred to the federal Environmen­tal Protection Agency for a decision on whether to pursue the penalties.

The Corps of Engineers referred calls from the Arkansas Democrat-Gazette seeking comment to the EPA.

An EPA spokespers­on didn’t return a call and email seeking comment.

Ferguson said Tuesday he had asked for a meeting with the EPA about the matter.

“We started the subdivisio­n under rules that were in place at the time, and there have been changes under the Biden administra­tion and recent court cases,” Ferguson said. “So we have asked for an onsite meeting with the EPA for clarity. We have also appealed the Corps of Engineers letter.”

He denied that he had broken any subdivisio­n codes.

“If we had any code violations, the county planning commission would not have approved us,” Ferguson said.

In addition to raising concerns about Mill Bayou and connected waterways, the coalition, along with other residents of the area, said in the earlier lawsuit that early constructi­on on the subdivisio­n had caused uncontroll­ed stormwater to flood many of their properties.

The suit, filed in September 2022, asked a judge to overturn the Planning Board’s approval of the project, alleging that “vital informatio­n” such as provisions for sewage disposal, drainage and flood control, and letters of approval from fire department­s and utilities were left out of the preliminar­y plat’s applicatio­n package.

Pulaski County Circuit Court Judge Herbert Wright transferre­d the case to County Court, where County Judge Barry Hyde, the county’s chief executive, is the judge, in September, saying matters relating to, “county roads, internal improvemen­ts, and local concerns,” are under the County Court’s jurisdicti­on.

The plaintiffs appealed Wright’s order to the Arkansas Court of Appeals. The appeal was still pending as of last week.

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Arkansas Democrat-Gazette

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