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Mitigation litigation 

“Remember,” reads the slogan on the Bass Pro Shops’ Web site, “We all live downstream.” The photo behind that truism on the site’s conservation page resembles the stream in Dark Hollow – the “ditch,” as developers call it – that would be obliterated to build The Shoppes at North Hills, where a new Bass Pro megastore is planned. The stream is certainly not Eden. For starters, its course is unnaturally straight. It runs roughly parallel to I-40, which, from a canoe in the water, can be heard humming a few hundred feet to the north. Due north of this creek, across I-40, the two steeples of a huge church loom. But here, the feeling is almost primordial. The stream is two or three feet deep and about 20 feet wide. It has a clean gravel bottom. Dragonflies, some of them four inches across, dive into the water. Bird calls embroider the muffled sound of traffic, and between the insects, the birds, and an occasional muskrat, there’s a lot of activity on the water. But the sense of the place is quiet. It is the middle of June, but, for all the swamp-like atmosphere, we don’t see a single mosquito. The birds and dragonflies have seen to that. From the vantage of a canoe, this slow-moving stream in the middle of the state’s third-largest city and near the juncture of two interstate highways could be any remote Arkansas wetland – except for the volume of trash. The water here has come from as far north as Park Hill, draining that neighborhood and many others. As a result, there is pollution we can see: balls and plastic bottles. Heavier junk like tires has lodged in the roots of trees. A frog big as a six-pack squats on a slab of Styrofoam – his version of a lily pad. Ultimately, this water will flow out of Dark Hollow into a severe, concrete-lined channel. At Redwood Street, it will be sent underground, into an aged – and some say deteriorating – tunnel. The tunnel, which is big enough for a man to stand up in, empties into to the Arkansas River. Is this stream in Dark Hollow worth preserving? The Army Corps of Engineers was charged with evaluating the impact of placing a commercial development here. Clearly, jobs and other economic advantages could arise from a complex of stores. Less clear were what values might be lost by altering the natural hydrological functions at work on these 2,000 acres of lowland. Most of the environmental assessment conducted by the Corps focused on water issues, mainly flooding. This tree-filled, undeveloped area captures water during heavy rains, allowing it to overflow the stream, spread out and, essentially, wait, before filtering more gradually into its guided path into the tunnel. That process of slowing down floods is important. So, before a natural system like the one functioning here could be disrupted by development, federal laws require that plans be in place to compensate for all the lost functions. Critics objected on environmental grounds to several aspects of the developer’s plans. Belz-Burrow, the developer, responded with revisions, chiefly aimed at slowing flood water headed to the Arkansas River. The Corps reviewed the developer’s plans without a public hearing. In April, it issued a “Finding of No Significant Impact,” and granted the Belz-Burrow permit. The Arkansas Nature Alliance quickly challenged that decision in federal court. The group, headed by biologists Rob Fisher and Daniel De Vun, claimed that, in issuing the permit, the Corps had ignored requirements of the 1969 National Environmental Policy Act. “Urban wetlands serve an invaluable pur-pose to our communities,” Fisher said, “and we are losing them at an alarming rate.” Presumably, the question of whether the Corps met its responsibility to evaluate the Belz-Burrow plan will now be dealt with in court. That process could move as slowly as the stream that winds through Dark Hollow. Or, as occasionally happens, events could rush as in a flood. – Mara Leveritt
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