Important Information about Referred Question #1

[DeBo]

Please read the following letter which I just received from the attorney for the Arkansas Wildlife Federation. This is very important!!

Ladies and Gentlemen,

I am sending this e-mail to a broad spectrum of opinions regarding the question of giving the Arkansas Natural Resources Commission (formerly Soil and Water) the authority issue up to $300 million in general obligation bonds, etc. My purpose in writing is to ask each of you to take a look at what Referred Question No. 1 will actually do and then make an informed decision.

If passed Referred Question No. 1 will enact the provisions of Act 631 of 2007. I really encourage each of you to read that Act before November 4th. Yes, your eyes will cross and, yes it is about as titilating as reading some of John Brummett's work, however it is equally worth your while.

What you will find are some fascinating parts not mentioned in the ballot title and not discussed by the proponents. For example, if approved by the voters via Ref. Quest. No. 1, Act 631 will give the ARNC eminent domaine power statewide. What if the Town of Marshall, Arkansas has a drinking water problem that damming up a tributary of the Buffalo (one not in the National Park) would solve? With eminent domaine power, they could take the land for the dam site and the lake's footprint, use some of the $300 to pay just compensation (But see the Russellville I-40 off-ramp case) and build a nice lake in the Ozarks. Do the names Lee Creek or Pine Mountain Dam come to mind?

Or, what if they needed to move irrigation water from point A to point B around Des Arc and there was a ditch or canal running through a farmer's land. ARNC would have the power to "take" that canal/ditch and use it as an irrigation supply canal.

Another provision that is not in the ballot title says that ARNC could take and use "any watercourse". The Saline River along with its various forks is a watercourse. A farm irrigation canal is a watercourse. Is a farm pipeline a watercourse? I don't know but I don't think I want to find out. Think what "any watercourse" means. Any ditch, canal, river, stream, pipeline(?). I am, personally, not excited about my favorite trout stream becoming an irrigation conduit.

How about this? On page 15 of the Act it says that if passed, Act 631 will give ARNC the power to, and I quote, "(3) Acquire abolute title to and use for any purpose and at any place, water stored in any reservoir or other impoundment." I think this would include private lakes on people's property, hunting reservoirs, fishing lakes and irrigation reservoirs, stock ponds or any other "impoundment or reservoir". Those of you with hunting clubs or lands in which you have an interest that have "impoundments or reservoirs", might want to think about this. Farmers with reservoirs really should take a close look at this.

The only thing I am not sure of is how this will effect lands owned or managed by other state agencies such as Game and Fish, Parks and Tourism, Heritage etc. What if ARNC says it needs Millwood lake (either or both of them) for holding reservoirs in irrigation projects? I have used the example of Lake Maumelle in my press statement. Will ARNC take Lake Maumelle if the measure passes? I do not know. But I do know they will have the power to take if they want to. Just as they would have the power to take any other "watercourse, impoundment, reservoir, easement (conservation easements?), right-of-way, road or highway". Given my experience in court with challenging ARNC's power vis-a-vie another state agency I am not encouraged that Game and Fish or Parks and Tourism could successfully defend against a ARNC "taking".

I could go on with examples but I hope I have piqued your interest enough so that you will look at Act 631 more closely. Then make up your own mind.

David Carruth
Clarendon, Arkansas

[Renee H]

Unfortunately, ANRC is trying to appeal to voters by making their key selling point "lower water/sewer rates!" (Yeah, right :roll: ) http://www.anrc.arkansas.gov/referred_question_1.htm" onclick="window.open(this.href);return false;

You can read the act at the link below. Click the link, choose "acts" on the left side and choose "full text of an act" and then type 631 and click view act.
http://www.arkleg.state.ar.us/" onclick="window.open(this.href);return false;

[Renee H]

From the Arkansas Code (15-20-1314) for those of you who don't want to look it up:

15-20-1314. Additional powers of the Arkansas Natural Resources Commission.

In addition to powers conferred under other laws, the Arkansas Natural Resources Commission may take appropriate action to carry out the purposes of this subchapter, including the power to:

(1) Develop projects;

(2) Operate and maintain projects;

(3) Acquire absolute title to and use for any purpose and at any place, water stored in any reservoir or other impoundment;

(4) Acquire, collect, impound, store, transport, distribute, sell, furnish, and dispose of water to any person at any place;

(5) Purify, treat, and process water;

(6) Assist local entities in the preparation of their premises for the use of water furnished by the commission and to construct upon their premises project properties of any kind and in connection therewith to receive, acquire, endorse, pledge, hypothecate, and dispose of notes, bonds, and other evidences of indebtedness;

(7) Use the bed of any watercourse without adversely affecting existing riparian rights, any highway or any right-of-way, easement, or other similar property rights, or any tax-forfeited land owned or held by the state or by any political subdivision of the state;

(8) Provide loans and grants from bond proceeds or project revenues to local entities and to authorize local entities to make loans to other persons for payment of project costs in order for the local entity receiving the funds to develop a project;

(9) Purchase with bonds proceeds or project revenues bonds or notes from a local entity in order to provide funds for payment of project costs in order for the local entity receiving the funds to develop a project and to enter into note and bond purchase agreements in connection therewith;

(10) Appropriate amounts from bond proceeds to satisfy state matching requirements for federal grants, subsidies, and revolving loan funds established by the Congress of the United States for the purpose of facilitating water, waste disposal, pollution control, abatement and prevention, drainage, irrigation, flood control, and wetlands and aquatic resources projects;

(11) Appropriate amounts from bond proceeds for the matching of moneys provided pursuant to other laws, including without limitation, § 15-22-501 et seq., the Arkansas Water Resources Cost Share Finance Act, § 15-22-801 et seq., The Water, Sewer, and Solid Waste Management Systems Finance Act of 1975, § 14-230-101 et seq., § 15-22-1101 et seq., and § 15-5-901 et seq.;

(12) Construct or cause to be constructed, lease as lessee, lease as lessor, and in any manner acquire, own, hold, maintain, operate, sell, dispose of, exchange, mortgage, or lend with respect to all or any part of any project;

(13) Acquire, own, hold, use, exercise, sell, mortgage, pledge, hypothecate, and in any manner dispose of franchises, rights, privileges, licenses, rights-of-way, and easements necessary, useful, or appropriate for the exercise of the powers or implementation of the purposes set forth in this subchapter;

(14) Sell and convey, mortgage, pledge, lease as lessor, enter into lease-purchase agreements with respect to, and otherwise dispose of all or any part of any project or other properties, tangible or intangible, including without limitation franchises, rights, privileges, licenses, rights-of-way, and easements;

(15) Have and exercise the right of eminent domain for the purpose of acquiring the fee title, an easement, a right-of-way, or any other interest or estate in lands for projects or portions of projects by the procedure now provided for condemnation by municipal corporations, § 18-15-401 et seq.;

(16) Make or accept gifts or grants of moneys, services, franchises, rights, privileges, licenses, rights-of-way, easements, or other property, real or personal or mixed;

(17) Make any contract necessary or convenient for the exercise of the powers or implementation of the purposes of this subchapter;

(18) Fix, regulate, and collect rates, fees, rents, or other charges for making any loan or commitment under this subchapter, for performing accounting and loan servicing duties relating to such loans and for the use of any properties or services furnished by the commission, and with respect thereto, the commission shall not be subject to the jurisdiction or control of the Arkansas Public Service Commission;

(19) Require audits of all accounts related to construction, operation, or maintenance of any project funded by this subchapter;

(20) Take reasonable actions necessary to ensure that debt service requirements are met;

(21) Refinance loans made by the commission from whatever source to local entities in order to develop a project;

(22) Provide loans from bond proceeds or project revenues to local entities to refinance indebtedness of the local entity incurred to develop a project;

(23) Procure insurance, letters of credit, or other credit enhancement for the bonds;

(24) Administer the program;

(25) Purchase with bond proceeds or project revenues bonds or notes from a local entity in order to provide funds to refinance indebtedness incurred by a local entity to develop a project; and

(26) Take any other action appropriate to accomplish the purposes of this subchapter.

History. Acts 2007, No. 631, § 1.

[Half Ton]

My main Prob with this ballot initiative is that ANRC is seeking the power of eminent domain.

My favorite part about their sneaky underhanded bill is that the word DEVELOP is defined on page 2 as "to plan, design, construct, aquire by pruchase or eminent domain., own, operate, rehabilitate lease as lessor or lessee.

Wow develop means to steal land through eminent domain. Neato.

Do we really need another entity out there that can steal land or water from mr or mrs. joe arkansan and call it development ?

I think not. I will vote No for definite.

[Cowper]

I dunno, seems to me the language could have been simplified. Maybe something like,

God is God.
And if he is not standing here now, then WE'RE in charge!

[Zach]

While we're on the subject of the ballot, I understand (after reading this post) what Referred Question No. 1 is about. I also understand Amendment No. 3 and Initiated Act No. 1.

But I can't figure out the motivations behind Amendments No. 1 and 2. I don't really understand No 1 at all. As for No. 2 is this to force the legislature to meet every year or is it a backdoor balanced budget amendment to force smaller appropriation bills?

Anyone got a handle on these two?

[shelbyjohnson]

But I can't figure out the motivations behind Amendments No. 1 and 2. I don't really understand No 1 at all. As for No. 2 is this to force the legislature to meet every year or is it a backdoor balanced budget amendment to force smaller appropriation bills?

Anyone got a handle on these two?

Well our constitution was written a few years after the civil war ended and there's some parts of it that are just plain outdated. The refered amendment number 1 is to clean some of that up. You can go here and read it in context. Once the PDF loads scroll to Page 26.
http://www.arkleg.state.ar.us/data/cons ... on1874.pdf

The second one is to go annual sessions where one year the legislature would deal strictly with budgets and then the next year deal strictly with public policy and making/changing laws.

I think one of the reasons this one came out is because the last two legislative sessions in 2005 and 2007 there were over 2,000 bills that were filed. Some were budget bills and some were law making. A regular session is only supposed to last 90 days I think and there's a problem with the Legislature trying to critically and thoughtfully analyze 2000 different pieces of legislation in only 90 days. I think that was one reason for this. The other reason is the budget piece and not having to forecast out so far on agency budgets. John Brummet had a good discussion on this year's issues.
http://www.arkansasnews.com/archive/200 ... 48654.html

But probably the best thing to read up on this one is here. http://ppc.uaex.edu/ballot/amendment2/FSPPC300.pdf

On the one hand it would be good for lawmakers to have a session where they only focus on policy and another where they only focus on budget. On the flip side each session costs the taxpayers money. There is extra staff, travel, and time but I haven't seen any figures on what a session costs.

[CAPTAIN ALEVE]

I don't know about voting for a referred question that a state senator named "Johnson" sponsored .....; however, some background and other facts can be found here:

http://ballotpedia.org/wiki/index.php/A ... o._1_(2008" onclick="window.open(this.href);return false;)

http://www.anrc.arkansas.gov/referred_question_1.htm" onclick="window.open(this.href);return false;

http://www.nwaonline.net/articles/2008/ ... ferred.txt" onclick="window.open(this.href);return false;


It appears that this act will be a continuation of a current program, one that I think the ACC backed in 1998. One thing that is different this time is the conferring of the power of eminent domain to the ANRC. We need to ask the sponsors, Senator Bob Johnson of Bigelow (501-759-9999) and Representative Chris Thyer from Jonesboro (thyerc@arkleg.state.ar.us 870-932-2000) that question; some independent views on the ED provision would be desired also. Certainly, ED is needed for the construction of pipelines for water and sewer projects; water corporations have this power already; why does the ANRC need ED power? Bottoms of waterways are already frequently used to route sewer lines so that gravity can be used to get the sewage to flow; that may explain the reason for the wording referring to the waterway bottoms. More investigation would be useful. One of the links above spells out who supports the referred question (Arkansas Municipal League, the Arkansas Farm Bureau, the Arkansas Rural Water Association and the Arkansas Association of Conservation Districts, and the ANRC directed by Randy Young). Maybe someone with connections to those organizations can produce some answers for us.

Captain Aleve, alias Mike Coogan

[DeBo]

Yes, this is on the ballot every year but I don't think that the ACC has ever taken a position on it one way or another.

It does have some dangerous riders this year and I for one am sick and tired of handing ANRC more money again this time. This agency is the most powerful in the state. Their drive is to provide water to anyone who wants it regardless of cost. Their first resource of choice is any undammed stream in the state. They get huge amounts of money for their projects, that we all pay for, while ADEQ goes begging for enough money to hire a few inspectors to keep our streams from being damaged by development and gas drilling.

I have already voted and on this one, my vote was a big NO!!!

[CAPTAIN ALEVE]

PBS (Channel 2) is having a discussion of the ballot issues tonight (Sunday 26th) at 9:00 p.m. that may shed some light on this referred item.

Captain A

[CAPTAIN ALEVE]

I emailed Tom Riley, who participated in the TV discussion and is the chief of the University of Arkansas Division of Agriculture Public Policy Center. Here is my email and Mr. Riley's reply:

Mr. Riley,

I just watched the public television program that you participated in which dealt with the upcoming election's ballot issues, including Referred Question # 1 or Arkansas Water Bond Act.

I did not hear any discussion about the Act's provision granting of the power of eminent domain to the ANRC. Can you explain to me why that provision is in this Act at this time? Why does the ANRC need the power of eminent domain when water corporations already have this power?

Mike Coogan
Little Rock


Michael:

The bond issue ballot question itself, does not have a reference to the eminent domain authority of ANRC. Act 631 of the 2007 Regular Legislative Session does have a reference to ANRC and their power of eminent domain. That part of the Act's authorizing language is not subject to a vote of the people. That authority exists because it was conveyed by the Legislature with the passage of Act 631. The only part of the act that is subject to a vote of the people is the question of debt. The state cannot issue general obligation bonds (authorize state debt) without approval of its citizens. The other authorizing language associated with Act 631 also exists independent of voter authorization of the bond issue.

I should add, this is not new authority for ANRC the language of the original act authorizing the bond issue in 1997 was almost identical to that of Act 631. The only substantive difference is a limit on the total amount of the bond authority that can be used for irrigation projects in the current question before voters. The 1997 question did not have a similar limit. ANRC has certain imminent domain authority outside of the scope of this act, because of its position as an agency of state government. I don't know why the Legislature found it necessary to include the language in either the original act of 1997 or Act 631. It may be as simple as "It's in there and it's working now, why take it out?"

To me, the most interesting language of both Act 631 and the previous authorizing act is that of using existing water courses for the transfer of water for beneficial purposes. That language seems to give the agency the authority to move defined quantities of water from storage locations to points of use within the natural drainage system of the state. The exercise of such authority would move us to a markedly different state of water rights allocation and authority. As a professional working in the policy issues area, I can't imagine a circumstance where state water policy will become less complicated or important.

Thanks for your interest and question. I hope this helps.

Tom
10/26/2008 9:47 PM >>>


Captain Aleve, alias Mike Coogan

[iYak]

This was in the SWTR in Fort Smith today.
Click here for the full story: http://www.swtimes.com/articles/2008/10 ... news03.txt" onclick="window.open(this.href);return false;

Activists Push Water Bond Issue
Tuesday, October 28, 2008 9:57 AM CDT
By Jason Wiest

Arkansas News Bureau • jwiest@arkansasnews.com

LITTLE ROCK — Arkansas needs more than $1 billion for water infrastructure projects, according to a recent survey, to fend off what one study called an approaching crisis.

Runoff from communities, agriculture and malfunctioning septic systems are increasingly causing water quality problems, according to a September study by the Winthrop Rockefeller Foundation.

Groundwater levels are dropping. Poorly planned development is contributing to flooding and inadequate water supply. Water infrastructure has fallen so far into disrepair that in some cases replacement is necessary.

“I don’t think it’s an exaggeration to say that this could dry somebody’s tap,” said Bill Vickery, a consultant for Arkansans for Clean Water.


The group’s solution to the doomsday scenario is the Referred Question No. 1, which will appear before voters on the general election ballot.

The measure would essentially extend a program approved by voters in 1998 that authorizes the Arkansas Natural Resources Commission to issue up to $300 million in water, waste disposal and pollution abatement financing bonds.

Opponents of the measure say it would give the commission too much authority over private land.

The state’s credit rating, the size of the bond issue and other factors mean the state would be able to offer money to local governments with water project needs at a lower interest rate than they would be able to obtain on their own, Vickery said.

With the credit markets drying up lately, it’s possible municipalities would not be able to obtain financing on their own, he said.

That’s one reason the Arkansas Municipal League supports the measure, according to executive director Don Zimmerman.

Click here for the full story: http://www.swtimes.com/articles/2008/10 ... news03.txt" onclick="window.open(this.href);return false;

[Roger]

Saw a little blurb on the AT's site that some of the major financial backers of this legislation are the companies that are drilling in the Fayetteville Shale play. They needs lots of H2O's for the business.

No other comment.

[Jody]

roger, wouldn't surprise me. LOTS of money spent moving water around in the Shale wells.

grant

[Roger]

Aww, Grant, nothing should surprise you being in the bidness! Been there! Got your new C-1?