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UPDATE Lawmakers to seek AG's intervention in critical habitat designation


LITTLE ROCK — A legislative panel voted Tuesday to ask Attorney General Dustin McDaniel for guidance in countering a federal proposal to designate much of Arkansas as a critical habitat for protection of two fresh-water mussels.

After four legislative committees meeting jointly heard four hours of testimony on the proposal, lawmakers also endorsed a pair of resolutions which will be considered by Legislative Council on Friday.

One of the resolutions asks the state’s congressional delegation to support a plan backed by a coalition of groups led by the Association of Arkansas Counties that would significantly reduce the size of the critical habitat. The other requests the delegation to ask why the federal economic impact study did not include cost to local communities.

“This is going to have an incredible impact on agriculture,” said Sen. Bruce Holland, R-Greenwood, who co-chaired the meeting. “A lot of these things need to be taken into account.”

Under the proposal, nearly 800 river miles in Arkansas, including 10 rivers and tributaries, including the Black, Buffalo, Illinois, Ouachita, Saline, Red, Spring and White rivers, would be designated as critical habitat for the Neosho Mucket and the Rabbitsfoot mussels.

The Neosho Mucket, an endangered species, is found in the Illinois River in Northwest Arkansas, and in rivers and streams in Kansas, Missouri and Oklahoma. The Rabbitsfoot is a threatened species found in rivers and streams in Arkansas and 14 other states.

The Association of Arkansas Counties and more than a dozen organizations collectively submitted comments against the proposal to the U.S. Fish and Wildlife Service before the Oct. 28 deadline, saying the measure is overarching and could hurt the state’s economy.

The association and other organizations, after paying for independent environment and economic studies on the federal proposal, suggested in their comments that the critical habitat be limited in scope to less than half of the area being proposed.

During Tuesday’s meeting, Chris Davidson, endangered species coordinator with the Fish and Wildlife Service, said before any final decision is made on the critical habitat designation the organizations’ comments and recommendations would be considered.

He also said the designation would not cause problems for farmers and other property owners who live along the waterways.

“The Service does not anticipate that the designation of critical habitat will add additional restrictions on top of those already resulting from the listing of species,” Davidson said.

He said the amount of land that would fall under the critical habitat designation would be much less than the 40 percent mentioned by the Association of Arkansas Counties. He said the 40 percent of the state was studied, but the the critical habitat will only include the rivers up to their high water mark.

Opponents also questioned why the federal economic impact estimate on Arkansas and 11 other states is $4.4 million over a 20-year period, while the economic impact study requested by the Association of Arkansas Counties estimated, for just Arkansas, at $19 million over the same period.

Davidson said the “incremental impact study” done by the federal government only considered administrative costs to the various federal agencies involved in implementing the critical habitat designation.

Jeff Sikes, legislative director for the Association of Arkansas Counties, said the association’s study included the economic impact to all 15 counties located within the proposed critical habitat designation.

Sikes told lawmakers that the proposal is the first of many expected over the next five years and is the result of a legal settlement struck between the Fish and Wildlife Service and the Center for Biological Diversity in 2011.

That agreement required the agency to make initial or final decisions on whether to add hundreds of species of plants and animals to the endangered species list. In the southeastern United States, the agency must consider 346 species, of which 46 are in Arkansas.

During the meeting, Montgomery County Judge Alvin Black and Benton County Judge Bob Clinard both spoke against the proposal.

Black said he feared the designation might cause Camp Ozark, a youth camp located along the Ouachita River, to move to another location. Clinard said his county is replacing six to eight bridges, at least one across the Illinois River, and an environmental study costs about $30,000, with about $10,000 just to determine if the project will impact the Neosho Mucket.

“I don’t know that every one will be $30,000, it all depends on the size of the bridge,” he said later.

Several lawmakers expressed concern and outrage as they asked about the critical habitat designation.

Rep. Kim Hammer, R-Benton, asked what would happen to a 12-year-old who dug up and killed Rabbitsfoot mussels he found on the bank.

Davidson said that could result in a fine of up to $100,000 and a year in jail.

Outraged, Hammer said he was “mad as hell and I can’t take it anymore. This just fired me up.”

“It’s as if you can make a decision about one tiny spot, one mussel that might become endangered without looking at other needs of the state,” said Rep. Charlotte Douglas, R-Alma.

“Based on what we’ve heard here today, I think it’s appropriate that we resolve to ask the attorney general to intervene on behalf of the state and review this proposed designation and make a recommendation to us,” Holland said.

Last week, the state’s congressional delegation released statements opposing the proposal.

During Tuesday’s meeting, Chris Villines, director of the Association of Arkansas Counties, said the organization is trying to develop a coalition with all the other states that are facing similar critical habitat designations.