Opponents insist county rely on land use management plan

Attorney Matt Bishop, representing Carroll County residents opposed to the proposed $300-million Scout Clean Energy Nimbus Wind Facility near Green Forest, recently sent an eight-page letter to County Judge David Writer and Prosecuting Attorney Tony Rogers citing precedents and arguments for the county’s land management plan to stop an industrial wind operation threatening water supplies and wildlife.

Scout is proposing a project that would involve installing more than 30 wind turbines that would generate 180 megawatts of electricity – enough to power 30,000 homes – on a project that would cover about 9,000 acres primarily near County Roads 905 and 920. The industrial wind turbines may be as high as 700 feet with large concrete bases needed to support the towers and blades.

Scout has said projects like this are critical to transitioning to green power to preserve the climate in the face of increasing extreme heat and cold, droughts and flooding. The company says it has all the leases it needs for the project from willing landowners who would receive an estimated $14 million in lease payments over the life of the project. Scout has also said Carroll County would benefit from the payment of about $25 million in property taxes.    

Among negative impacts, opponents fear blasting in the rocky, karst terrain for concrete turbine bases and vibrations from operation of the turbines that could disrupt springs and water wells.

“As you know, Carroll County is riddled with caves, springs, and underground waterways,” Bishop wrote. “The erection of these massive turbines can alter and damage these water sources and Scout is undoubtedly aware of this impact. I do not know if Scout has shared this knowledge with the County Judge’s office or the Quorum Court (QC), but perhaps they will in the near future. They obviously recognize the risk.

“I point these impacts out, and there are many others including the impact on endangered bats, because Carroll County has passed ordinances addressing these issues. To date, it does not appear that the Quorum Court has followed its own ordinances in analyzing this proposed project.”

Bishop points to Ordinance No. 98-2, entitled “An Ordinance Adopting an Interim Land Use Policy Plan for Carroll County, Arkansas” adopted in 1998. The Interim Plan opened with a statement on the importance of water resources in Carroll County: “Carroll County recognizes that the protection and development of its water resources are essential to its short and long-term economic and cultural viability. To preserve this essential resource, the ordinance states: The County shall also develop a definition of ‘natural’ hydrologic environment so as to assess the use of water in the county by man, vegetation, livestock, and wildlife within the context of historical use.”

Carroll County has not developed a water use policy and Bishop said the county cannot preserve this resource if it has not accurately and fully assessed it, nor can it develop policy without this knowledge. 

“My clients have been unable to locate a copy of the required definition of a ‘natural hydrologic environment’ or a ‘water use policy to ensure both water quantity and water quality’ as required by the county’s own ordinances,” Bishop wrote. “Given that even Scout now recognizes the impact of its project on our natural springs, it is more important than ever that Carroll County fulfill the mandates of the QC.

“Justice Howerton’s efforts at land use planning, as well as those of his predecessors in developing the Interim Land Use Plan, should not be ignored. To date, it appears it has been as few, if any, of the studies that shall be completed have been, and it does not appear any of the committees have been established, or if they have been established, the committees have not met.  These are important prerequisites for examining a project such as that proposed by Scout.”

Bishop also addresses discussion about Scout, or lessors to Scout, filing lawsuits in the event any regulation were put in effect. In addressing the issue before the QC, the county prosecuting attorney’s office indicated it doesn’t have the capacity to handle a large lawsuit and questioned whether the land use ordinance could be used as grounds to oppose Nimbus.

Bishop said filing a lawsuit is a far cry from winning a lawsuit. A case he referred to is Barrett v. Poinsett County, 306 Ark. 270 (1991). In Barrett, a Poinsett County landowner entered an option to sell his land to a neighboring county for use as a landfill. The Poinsett County Quorum Court passed an ordinance specifically prohibiting the use of any property in the township from being used as a landfill. The Barretts sued, alleging the Poinsett County Quorum Court’s ordinance constituted an inverse condemnation and a taking. The Arkansas Supreme Court sided with Poinsett County.

Bishop said rather than the land in question being diminished in value by not allowing the wind project, it is possible the project would actually devalue the land upon which it sits, as well as surrounding lands with no wind turbines.

Another case squarely on point, Bishop wrote, is Johnson v. Sunray Services, Inc., 306 Ark. 497 (1991). In July 1989, Sunray Services’s CEO purchased 1,850 acres in Washington County and granted an option to the company to construct a landfill. Sunray then applied for a landfill permit, and the Washington County Quorum Court referred the matter to its Environmental Affairs Committee. The EAC considered the application over two meetings in August before recommending a moratorium be imposed for further consideration. In its September meeting, the quorum court adopted a two-mile buffer zone between any landfill and main water sources, effectively prohibiting the proposed site from serving as a landfill.

Sunray appealed to the circuit court, which struck down the ordinance. The Arkansas Supreme Court reversed the circuit court.

“The goal of the quorum court was to protect water sources from landfill pollution — certainly a legitimate objective,” Bishop said “Clearly, the protection of water sources is a rational basis for an ordinance. In Carroll County, both the Interim Land Use Plan and the Comprehensive Land Use Plan discuss the vital importance of our water resources to Carroll County. Even Scout has acknowledged the damage to natural springs than can result from wind turbines, and the Quorum Court has received information via public comment about the impact of industrial wind farms on water resources. Any ordinance protecting those resources would have a rational basis and a deliberate nexus with legitimate county objectives as stated in the land use plans.

“Finally, there is the issue of ‘zoning,’ which has primarily been raised by Scout marketing materials and data collection methods via email and text. While fearmongering around the word may have been effective to date, the term ‘zoning’ has a very specific meaning in the Arkansas Code with regard to counties. Ark. Code Ann. § 14-17-209 has a process by which counties can enact zoning ordinances and includes the adoption of an official map dividing up areas of unincorporated land for specific uses. 

“To my knowledge, no one in the county has proposed ‘zoning’ as defined by the Code.  It is certainly true the Carroll County Quorum Court has land use regulations, as the bitcoin mining ordinance adopted just this past July reflects. The Arkansas Code even distinguishes the adoption of a subdivision ordinance with setbacks from zoning. See Ark. Code Ann. § 14-17-208.  Yet nowhere has there been any proposal to implement zoning in Carroll County.”

Bishop said his clients love Carroll County and embrace and adopt the need for the protection and preservation of Carroll County’s resources as set forth in the Interim Land Use Plan and the Comprehensive Land Use Plan. To fulfill those promises, they only request the land use plans be followed, that the baselines be established as required, that the coordination with the appropriate state and federal agencies occur, and that the QC, to quote Justice Howerton’s Comprehensive Land Use Plan, “take immediate steps to protect critical thresholds and production levels necessary to maintain the quality of the environment and protect the economic stability of the County that supports the customs and cultures of the Carroll County people.”