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Arkansas counties crucial to process of levee overhaul

By Arik Cruz
AAC Law Clerk

Spring in Arkansas is generally seen as a season of rebirth. Days begin to last longer, vegetation begins to grow, and temperatures begin to rise. Perhaps even more noteworthy, however, are the plentiful rains that begin to fall, bringing with them hopes of a bountiful harvest in later months. But this year, these canonical April showers brought something far more perilous than May flowers.

Indeed, these springtime rains brought a devastating 500-year flood to the state that began in late May and persisted into mid-June, with its ramifications still felt many months later. This unprecedented flooding event shattered crest records on rivers across Arkansas. For example, the Arkansas River at Morrilton (Conway County) saw a record crest of 43.03 feet on June 6, 2019, exceeding the prior record set during the Great Flood of 1927 by roughly a foot. Dardanelle (Yell County) witnessed the river crest at 45.91 feet on May 30, 2019, exceeding by more than a foot and a half the record set in May of 1943. Record crests were also recorded in such locations as Van Buren (Crawford County), Toad Suck (Faulkner and Perry Counties), and Pendleton (Desha County), and the highest crests in recent years were seen in other towns and cities along the Arkansas River.

Declarations of Disaster

In all, the Flood of 2019 led Gov. Asa Hutchinson to declare 31 of Arkansas’ 75 counties to be disaster areas, a designation that allowed them to seek and receive state assistance immediately. Moreover, on June 08, 2019, the Federal Emergency Management Agency (FEMA) issued a Major Disaster Declaration, later approved by President Donald Trump. This declaration made 13 counties eligible to apply for individual assistance, with 12 of those counties eligible for public assistance as well.

Estimates indicate that the river flooding also caused approximately $20 million in economic loss across the state during each day of the weekslong event, a burden borne especially heavily by Arkansas’ agricultural, industrial, infrastructure, and transportation sectors.

Impacts on Levees

Additionally, the catastrophic flooding significantly impacted several levees across Arkansas, most conspicuously in the area of Dardanelle where a major breach occurred due to overtopping. Other levees along the river — such as one in Conway County — were diminished in efficacy as outdated infrastructure such as damaged drainage pipes could not handle the vast amounts of water, leading to significant leaks. Others still — not designed to hold back as much water as they were required to during the event — appeared perched precariously on the precipice of disaster, yet held nonetheless despite Mother Nature’s best efforts to do them in.

Arkansan Resilience

Indeed, while the flood was incredible in its breadth and destruction, even more incredible is the fact that human loss of life was limited to one individual. Association of Arkansas Counties (AAC) Executive Director Chris Villines echoed this sentiment, stating that it was “a miracle in the state of Arkansas that we lost only one life during that flooding.” This fortuitous outcome may well have been different without the gracious and courageous efforts of the people of Arkansas. From the National Guard to our first responders, from county officials to everyday citizens across the state, the cooperation shown during the Flood of 2019 ensured that help was always on its way. In the words of Gov. Hutchinson, “That’s how we do things in Arkansas. We take care of each other.”

Moving Forward

In the wake of the flood, having reviewed the extent of the devastation left in its path, the next step was determining how to move forward. Right off the bat, one thing was already clear to local, state, and federal officials: many of Arkansas’ levees were simply not prepared to handle an event of this magnitude. This realization led Gov. Hutchinson to take multiple remedial steps.

First, $350,000 in emergency funds were allocated to impacted counties and cities to assist with their most immediate needs. Next, the Governor requested and received legislative approval to designate $10 million in grant funding from the state’s Reserve Allocation Fund to pay for maintenance and repairs of levees. This funding was made available through the Arkansas Department of Emergency Management (ADEM), in consultation with the Arkansas Natural Resources Commission (ANRC). Importantly, this allowed levees that are not currently compliant with federal levee standards — thus ineligible to receive federal funds — to nevertheless apply for assistance from the state.

The Arkansas Levee Task Force

Finally, and most germane to this article, Gov. Hutchinson established the Arkansas Levee Task Force, a temporary entity created to study and analyze the current conditions of the state’s levees. More specifically, the Task Force was formed in order to: identify sources of funding and related requirements for the construction, repair, and maintenance of levees; study prospective monitoring and reporting systems for levee maintenance; and review the adequacy of the current laws and organizational structure of the levee system and levee district boards.

Findings resulting from this important undertaking are to be presented within a report to the Governor by Dec. 31, 2019, along with any additional reports and recommendations. The 25-member Task Force is comprised of leaders from various state agencies; elected officials on the state, county, and municipal level; and other individuals, such as engineers, levee board members, and at least one attorney.

The Task Force has been meeting regularly since July, both in full body meetings and in its subcommittees, which were divvied up to focus more intently on each of the objectives outlined by the Governor’s executive order. St. Francis Levee Board member Rob Rash has led a committee to study and analyze the current conditions of the levees. ANRC Director Bruce Holland has chaired a committee to identify sources and requirements for funding the construction, repair and maintenance of levees. Jackson County Judge Jeff Phillips has run a committee on studying prospective monitoring and reporting systems for the maintenance of levees. State Sen. Gary Stubblefield has overseen a committee reviewing the adequacy of the current laws and organizational structure of the levee system and levee district boards.

Investigating Arkansas’ Levees

In conducting a review of the conditions of our state’s levees, preliminary findings have not only recapitulated the need for improvements to prevent future disaster, but also have highlighted another issue: the difficulty of determining exactly how many levees actually exist in Arkansas. This task has proven quite onerous due to issues such as slight differences in the names used by districts from one database to the other or minor discrepancies in spelling when reporting to such databases, or failure by some districts to report altogether.

According to an analysis by the Arkansas Democrat-Gazette, there may be as many as 181 levee districts across the state. “Levee districts” are entities that typically operate and maintain levees themselves and, for the purposes of this article, may be read to include drainage districts, as well. A significant number of the state’s levees were organized through statutes that technically title districts formed under them “drainage districts,” but the primary purpose — to establish levees — is the same.

A statement issued by the state of Arkansas indicated that the state contains 92 levee districts. Both of these counts differ slightly from the number given by the U.S. Army Corps of Engineers’ (USACE) National Levee Database, which lists 114 separate levee systems. “Levee systems” refer to the entirety of a levee, which may be broken down into segments and managed by separate levee districts, despite being contiguous. Multiple districts may operate a single system, and in some cases a district may sponsor multiple levee systems. Ultimately, it is the hope of the Task Force to provide a more exact accounting in its final report.

According to the Corps, the average age of Arkansas’ levees is 69 years, making many, if not most, of them overdue for renovation and enhancement, whether physically or in regulation and oversight. The damage sustained during the Flood of 2019 has only compounded this need. Complete information on the current needs of our many levee systems will be found in the final report to Gov. Hutchinson in December.

What Has Led to these Conditions?

While merely determining how many levees there are and what deficiencies exist may be difficult enough, an even more complicated question is figuring out why conditions have deteriorated and how to remedy those problems. As mentioned above, levees in Arkansas are generally operated by levee or drainage improvement districts, which are governed by a board of directors and created in various ways under Arkansas law. In some cases — and for reasons economic, administrative, or both — a levee may simply go unattended, leading to considerable deterioration over time.

In the case of the breach near Dardanelle, while that levee did have an active board, it had not been sufficiently maintained such that it was compliant with Corps standards. Thus, that levee district was and is ineligible to receive federal funding for repairs. This is the case with the majority of Arkansas’ levees according to the Arkansas Democrat-Gazette. This noncompliance with Corps standards presents a serious impediment to improving the condition of those levees. Not only do districts fall into disrepair due to this lack of federal funding, they then have very little money with which to work in trying to become federally certified.

Thus, without assistance from the federal government, districts must rely primarily on assessments levied upon the betterments (i.e., benefits) received by the residents and/or entities within a district whose lands are protected by the levee(s). Often, these assessments do not raise enough money to pay for adequate levee maintenance. In Jackson County, for example, half of those protected by the levees were not on the assessment rolls and thus were not contributing to their upkeep. In many other counties, increasing assessment rates is rarely politically popular. Given that many districts have not undertaken reassessments of betterments in many years and that still other districts are hamstrung by assessment rates capped at untenable levels, levee districts are left with insufficient revenues to improve the conditions of their levee(s). While certain agencies such as the ANRC offer loans at relatively low interest rates, such funding must of course be paid back eventually, which is a difficult task when district finances were unsustainable in the first place. The only other option — grants from state or federal government agencies — are rarely available and highly competitive. Consequently, the Task Force is conducting research to determine exactly how much money it will take to bring all of Arkansas’ levee districts into compliance with Corps standards, as well as to identify best practices in obtaining such funding.

Remedial Legislation

Problems such as those discussed above have existed well before the Flood of 2019. A Summer 2017 County Lines article by former AAC law clerk Sarah Giammo detailed a wave of new legislation passed between 2009 and 2017 that was aimed at improving levee maintenance and levee district management.

Act 386 of 2009, sponsored by former State Sen. Robert Thompson, established reporting requirements for levee districts that mandated transmission to the county clerk certain integral details such as a district’s name and legal authority; a legal description and a map of the district and its parcels; and information regarding the district’s board of directors. Especially important with respect to district boards is whether any vacancies currently exist thereon.

Act 7 of the Third Extraordinary Session of 2016, sponsored by State Sen. Jason Rapert and State Rep. Rick Beck, followed up on these reporting requirements by mandating that such reports be forwarded by the county clerk to the ANRC.

Acts 386 and 7 each require that county clerks notify the board of directors, if any, of a district with board vacancies, as well as the county court. Moreover, the county clerk must also publish notice of the vacancy in a newspaper of regular circulation in the county or counties affected, as well as on a county-affiliated website, if one exists. If vacancies persist in multiple successive reports, a public hearing must be held by the county court for the purpose of filling the vacancy.

Act 210 of 2011, sponsored by State Sen. Jane English, then a state representative, and former State Sen. David Burnett, established another set of reporting requirements, this time focused more intently on the financial data of districts, requiring information such as any current contracts, indebtedness, total income, and total expenditures. This report, too, must be filed with the county clerk. Importantly, this act applied only to districts that use the county collector to collect assessments, though such is the case for the majority of levee districts. This act also made districts subject to the Freedom of Information Act (FOIA).

Act 623 of 2017, sponsored by State Rep. Lanny Fite and State Sen. Jimmy Hickey, Jr., provided another way for county judges to act upon finding that a district is defunct or otherwise operating in an improper way. Here, however, action is contingent upon the public in a district taking action. First, a member or members of the public must successfully make a FOIA request regarding a particular district. If what is yielded by such a request is substantially insufficient in that it does not provide adequate financial or operational information, then not less than 10 percent of the members of the district may petition the county court to direct that the district comply more substantially with the FOIA request. If within 30 days the district does not or cannot comply, the county judge may order an audit of the district on his or her own volition.

Act 623 also provided additional methods by which to fill board vacancies. In one method, a county judge may appoint a new board member upon petition of the district’s property owners. By the other method, a county judge may simply appoint replacement members on his or her own accord. Similarly, if a district’s board is entirely vacant and no property owners wish to serve on said board, a county judge must appoint an administrator to act as a substitute for the board until interested property owners come forth to take control.

Room for Improvement

While the foregoing legislation has laid a framework for allowing levee and drainage districts to reconstitute and become fiscally viable, there still is room for improvement. Indeed, some ideas considered by the Task Force include combining or streamlining the reporting requirements laid out by Acts 386, 7, and 210. Importantly, it is desirable that the financial data reports required by Act 210 should also be forwarded to the ANRC such that the agency has a more complete picture, not only of a district’s organizational structure and territory, but also its financial status. This knowledge could allow ANRC to prioritize funding opportunities in a more efficacious manner, especially if the agency were to attain higher levels of oversight regarding levee operation, as discussed below. Such an improvement could also be affected by amending the laws contained within Act 386, the reports from which are already forwarded to ANRC, to mandate financial reporting in addition to the information already required.

Notably, Act 708 of 2019, sponsored by State Rep. Jasen Kelly and State Sen. Jane English, was signed into law just prior to the Flood of 2019 and built upon Act 210 by establishing further requirements for levee districts. This act requires retention of all financial records, bank statements, and contracts relating to any evidence of indebtedness undertaken by a district during its existence and for five years following its dissolution. The Act further provides that these financial records are subject to FOIA. Moreover, under Act 708, any state agency or commission may choose to be excluded from any newly formed district for the purposes of assessments. Lastly, the act requires the Department of Health to promulgate rules establishing minimum standards for water and sewer improvements made by districts under the pertinent subchapter. While this legislation was not passed with extreme flooding in mind, it may nonetheless be seen as a step in the right direction with respect to determining the financial state of our districts and improving our districts in a safe and effective manner.

Moreover, the Task Force has discussed amending Arkansas law to give ANRC actual administrative authority over levee districts. Currently, the agency is prohibited from acting in such a supervisory role and does not have rulemaking power with respect to levee or drainage districts. Allowing ANRC to take on such a role could greatly assist in providing a more uniform and efficient way to operate the many levees across our state. Moreover, some level of ANRC authority might ensure greater compliance with best practices and safety standards going forward, ameliorating the risk of severe damage from future flooding events. The aim of the Task Force in its final report will be to make informative recommendations regarding these and other areas of concern, such that the Arkansas General Assembly might consider curative legislation going forward.

Another method by which to assist those levee districts that are underfunded, semi-operational, or defunct is through district consolidation or merger. At times, it may be the case that county leaders, boards of directors, or affected landowners wish to consolidate multiple contiguous levee districts into one, combining the territory and resources of the once separate districts such that operations will become more efficient, assessment revenue will increase due to a larger tax base, and future district viability will be enhanced. All of this could serve to allow once struggling districts to reorganize and operate as a whole for the better protection of the lands, individuals, and businesses in any given area.

Depending upon the facts of each scenario and the statutes under which any given districts were formed, the process of consolidation can be remarkably complex. For instance, while there is a statutory method for consolidating districts between two or more counties, there is no such provision explicitly providing a method for consolidating two or more districts within the same county. This issue, as with many matters involving levee districts, would benefit from legislative clarification and amendment. Indeed, the Task Force, in conjunction with AAC legal staff, has reviewed the legal methods for consolidation and found that the process needs to be made simpler, more widely applicable regardless of organizational statutes, and more clearly defined.

A Successful Case Study at the County Level

One example of a successful consolidation occurred in September 2019 in Conway and Pope counties. There, three contiguous but legally separate districts from within the same levee system were combined to form one district. According to Conway County Judge Jimmy Hart, “it [didn’t] make sense to have three levee districts on one levee system, because if one breaches in Conway County then it will affect Pope, and if it breaches in Pope then it will affect Conway.” Consequently, the boards of each levee district, as well as Judge Hart and Pope County Judge Ben Cross, agreed that consolidation was in the best interest of everyone involved, including area landowners. Each county court therefore issued orders establishing a single consolidated levee district in accordance with relevant Arkansas law. Prospectively, this process can be replicated elsewhere across the state on a case-by-case basis through cooperation between county officials and the AAC. Further legislation — informed by the Task Force’s final report, as well as experiences at the local level — may provide even more efficient ways to effect consolidation. In turn, the quality of Arkansas’ levees and the safety of Arkansans throughout the state will be significantly enhanced.

Final Observations

Above all, it is clear that while there have been quite a few improvements in the areas of levee law and levee operation, there remains considerable work to be done. Fortunately, we may expect the final report from the Arkansas Levee Task Force to be highly instructive with respect to how we can continue progressing forward on these issues for a safer Arkansas. What we know already, however, is that looking to the recommendations given and actions taken by officials at the county level thus far can teach us about the practical effects and difficulties of proposals in a real-world setting. Counties that wish to learn more about the process of levee district consolidation — or those that have other questions with respect to levees in general — are encouraged to contact the AAC for assistance. While there is no “one-size-fits-all” approach to levee law, cooperative efforts can go far in achieving the results desired by those parties interested.

Sources

2009 Ark. Acts 386.

2011 Ark. Acts 210.

2016 Ark. Acts 7.

2017 Ark. Acts 623.

2019 Ark. Acts 708.

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Clara Turnage, Levee Break Puts Dardanelle in Peril, Arkansas Democrat-Gazette, (June 01, 2019), available at https://www.arkansasonline.com/news/2019/jun/01/levee-break-puts-dardanelle-in-peril-20/.

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