Buffalo River Watershed Alliance
Arkansas Democrat Gazette
October 31, 2024 at 9:48 p.m. | Updated November 1, 2024 at 9:36 a.m.
by Ainsley Platt
Environmental organizations, the city of Fayetteville and the Beaver Water District sounded the alarm on the removal of public notification requirements for liquid animal waste permits by the Arkansas Department of Agriculture -- the same requirements that were put in place after the C&H Hog Farms controversy -- without an official explanation for why they were being removed.
The outcry from both local government and environmental advocacy organizations such as the Ozark Society and the Buffalo River Watershed Alliance came as the Arkansas Democrat-Gazette learned, via an Arkansas Freedom of Information Act request, that two unnamed state lawmakers asked both the Department of Agriculture and the Department of Energy and Environment to request that the Arkansas Legislative Council suspend its rules to allow it to hear the changes to the Department of Energy and Environment’s Regulation 6 -- which will make the swine farm moratorium in the Buffalo River watershed permanent -- and to hear the agriculture department’s rule making on liquid animal waste permits, which also contain language relating to the moratorium.
A letter sent by both departments said that the sped-up timeline would be "beneficial" to facilities the permits apply to "because it would provide clarity on pending permitting matters."
The letter did not provide information about what those pending matters were.
A law passed in 2023 enabled the department to exclude notification requirements from the rule by striking language passed into state law in 2017 that required regulators to give notice within 120 days of its proposed actions when it received an application or modification for a liquid animal waste permit.
Act 824 of 2023, which transferred the authority over liquid animal waste permits from the Division of Environmental Quality to the Department of Agriculture, removed that language from state law.
The lead sponsor for the act was Rep. DeAnn Vaught, R-Horatio, who is a hog, dairy and chicken farmer and vice chair of the subcommittee that will consider whether to approve both the Regulation 6 and the liquid animal waste rule makings.
Liquid animal waste permits are required for swine farm operations such as the one that prompted the swine farm moratorium in the Buffalo River watershed, in dairy operations and other agricultural facilities involving animal waste, said Gordon Watkins, the president of the Buffalo River Watershed Alliance.
The Division of Environmental Quality, which previously regulated the liquid animal waste permits prior to the 2023 legislation, required that public notice for new permit applications or permit modifications be provided to local governments, and required permit applicants to "make a reasonable effort to notify all adjacent land owners" of the application at the time that the application was submitted to the division.
Those notice requirements were axed in the Department of Agriculture's version of the liquid animal waste rule. The only notice requirement in the Agriculture Department rule making was that the department must post notices somewhere on its website.
Meanwhile, another act that Vaught was the lead sponsor for in 2023 also made some of the documents required for those permits no longer subject to Arkansas' public records law.
The removal of the notification requirements was met with massive opposition during the public comment period, with hundreds of comments being submitted to the state's agriculture department -- but only after the time to comment was extended. According to Watkins and Thompson, their organizations didn't even know the rule making was in the public comment period until days before it was set to end.
"We didn't find out about it until four days before the end of the comment period," Thompson said.
The Department of Agriculture was well aware of the organizations' interest in the rule making, both presidents said, yet they were not told about the public comment period despite specifically asking to be informed, Watkins said.
"They knew of our interest," Watkins said. "They were not forthcoming with us, knowing that we were interested, knowing that and having told us that they would keep us informed on these. Both ADEQ and (the Arkansas Natural Resources Commission) told us multiple times that they would keep us in the loop and they would let us know if one of these regulations came up for rule making."
A public hearing held prior to the organizations being made aware of the public comment period was attended by agricultural interests such as the Arkansas Farm Bureau and the Arkansas Pork Producers Association, however, said Thompson.
"That tells you something right there," Thompson said. "They knew about it. We were not notified."
The Arkansas Farm Bureau did not respond to a request for comment.
The organizations were able to get the public comment period extended, and according to records obtained by the Democrat-Gazette, at least 570 public comments were ultimately received by the Department of Agriculture, both for and against the liquid animal waste rule.
While comments from the agricultural interests and right-to-farm supporters generally focused on opposition to language mirroring the swine farm moratorium in ADEE's Regulation 6, those in favor of the swine farm moratorium also came out in droves to oppose the removal of notification requirements.
Amongst those who submitted public comments were the mayor of Fayetteville and the Beaver Water District, both of which solely addressed the lack of notification requirements in their comments and conveyed deep concerns about the consequences of removing the notifications.
"One of our city council members, Teresa Turk, brought this to our attention," said Susan Norton, the mayor's chief of staff who was speaking on the city's behalf. "She pointed out to us that, in fact, in order to be made aware of the general permit then we would have to hunt ... on the Department of Agriculture website" rather than notice being distributed to local governments directly.
"That's why we made the comment that we did and we feel that is for the sake of general transparency and public notification," she said.
The "geological sensitivity" of the Northwest Arkansas region as a whole made it even more important that the city of Fayetteville is kept aware of those kind of permit developments, said Norton.
Meanwhile, James McCarty, the Beaver Water District's environmental quality manager, said that the removal of the notification requirements strikes at the heart of the ability for water utilities like it to engage with state regulators on actions that could potentially impact drinking water resources.
They were not aware of the public comment period for the rule making until the Ozark Society informed them, he said.
Despite several hundred comments expressing opposition to the removal of notification requirements, the department did not state why they had been removed in any of its responses, writing in its responses that "The notice process provided within the rule is sufficient."
The responses to comments concerning the notification requirement removal also said that "If it is determined that the operation may result in a discharge into the waters of the state, the operation must obtain" a Regulation 6 NPDES permit through the Division of Environmental Quality, which "includes the increased notice as requested in the comment."
The change to state law was not noted in responses to comments about notification requirements, although it did cite the change in state law regarding Freedom of Information Act applicability when commenters mentioned the public records changes.
A Department of Agriculture spokesperson was contacted with multiple questions regarding the rulemaking and the last-minute request to bring the rule making before the ALC in November. Shaelyn Sowers, the Department of Agriculture's spokesperson, said she would "check into this" in response to the emailed questions. She did not respond with answers to the Democrat-Gazette's questions.
The combination of the records exclusion from the Freedom of Information Act and the removal of public notifications was concerning to both Watkins and Thompson, they said, because of the potential for substantial environmental consequences in Northwest Arkansas specifically if more liquid animal waste facilities set up shop there. They said the region was especially vulnerable to the kinds of pollution liquid animal waste operations can create, regardless of if it discharges to surface water, due to the underlying geology.
While the proposed regulations would safeguard the Buffalo River watershed, Watkins said the state's other watersheds -- including the ones that provide drinking water -- aren't afforded the same protections. The lack of notifications would mean that those impacted may be none the wiser if liquid animal waste operations wanted to open up in their areas, they both said.
"Unless you are monitoring that website on a daily basis, to my knowledge there's no means for signing up for a notification list of any sort," Watkins said. "It really inhibits the public's ability to gain access to that information."
Removing the notification language is critical, Thompson and Watkins said, because if a landowner who would otherwise oppose a liquid animal waste facility near their property didn't submit a public comment, they would not have any "legal recourse," as submitting a comment is how legal standing is established, they said.
"The only way that you have public standing to object is if you comment," Thompson said.
Both agencies submitted letters to the Bureau of Legislative Research requesting the suspension of the rules on Oct. 17, according to records. That is despite changes to Regulation 6 not being adopted until Oct. 25. Neither Thompson nor Watkins were aware that Regulation 6 would potentially be heard in November instead of December.
The documents included in the record for the Regulation 6 adoption stated that the ALC hearing on the changes would take place in December. Michael McAlister, managing attorney for ADEE, who presented the regulation to the Pollution Control and Ecology Commission, did not say that the date on those documents was no longer accurate or had the potential to no longer be accurate.
When contacted with multiple questions regarding the timing of the ALC hearing, department spokesperson Carol Booth provided a copy of the letter sent to the Bureau of Legislative Research requesting the suspension of the rules. Answers to the questions were not provided.
The change to when lawmakers would consider approval for the rules, and the removal of the public notification requirements for liquid animal waste permits, was part of a larger issue with transparency, said Watkins and Thompson.
Both warned that there are large interests that want to expand hog farming in the northwest region -- and that they don't want the eyes of the public on them.
"They're going to let everything sit quietly for maybe three or four years and then all of a sudden we're gonna see these things start popping up (in Northwest Arkansas)," Thompson said. "Our feeling is that there are interests that want to greatly expand hog farming and the best way to do it is to avoid having to deal with the public."
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Arkansas Times
by Phillip PowellOctober 25, 2024 4:40 pm
State environmental regulators moved forward with a permanent ban on hog farms in the Buffalo River Watershed, but residents of Tontitown received no news on concerns over air pollution and a landfill that residents of the tiny Washington County town believe are making them sick.
During the Arkansas Department of Environmental Quality’s Pollution and Ecology Commission meeting Friday, the commissioners voted unanimously to update environmental regulations to include a ban on “concentrated animal feeding operations” in the Buffalo River Watershed. The matter will next go before the Arkansas Legislative Council’s administrative rules subcommittee.
Concentrated animal feeding operations, or CAFOs, are operations where animals are raised in confined areas. Waste from such operations can contaminate groundwater and nearby waterways, which is why organizations like The Ozark Society and the Buffalo River Watershed Alliance have opposed hog CAFOs close to the Buffalo River.
In 2019, Arkansas announced a deal to close a hog farm in the Buffalo River Watershed after widespread outcry over its proximity to the Buffalo, an increasingly popular tourist destination in the region. Former Gov. Asa Hutchinson also issued a moratorium to prevent large pig farms from operating near the river and protected watershed.
“I wanted to encourage the continuation of the moratorium, but there are a couple of things I would like to mention,” David Peterson, former president of The Ozark Society, said in his remarks to the commission. “The Buffalo River watershed is less than 2% of Arkansas land area, which means that 98% of the state is available for hog CAFOs if the conditions are right. That may be a problem for agriculture but it’s not because of the moratorium. The question is where does ADEQ draw the line if they don’t enforce the moratorium.”
Peterson and Gordon Watkins, who serves as the President of the Buffalo River Watershed Alliance, both attended the Friday meeting to encourage the commission to adopt the moratorium as a permanent change to Arkansas law.
The Arkansas Farm Bureau opposes the ban.
“The ‘right to farm’ is a foundational principle that supports the continuation of agricultural operations without unreasonable interference,” Farm Bureau said in public comments. “This rule not only affects swine producers but could also have a lasting impact on the broader farming community and future generations of farmers. The proposed moratorium sets a precedent that could potentially lead to further restrictions on various types of farming within the watershed and beyond.”
While the Pollution Control and Ecology Commission voted to include language banning CAFOs around the Buffalo River in regulation 6, Watkins noted that CAFOs have always been permitted in the state under regulation 5. And now regulatory authority for regulation 5 has been transferred to the Arkansas Department of Agriculture after a new law passed in 2023.
As the Arkansas Times previously reported, the Arkansas Department of Agriculture has never had this authority before. Environmentalists are concerned that the transfer of authority over CAFOs to the state’s agriculture department will lead to weak public notice requirements.
When ADEQ was in charge of permitting CAFOs under regulation 5, newspapers, local governments and neighbors would be notified of a new CAFO coming to their area. But under the Department of Agriculture’s proposed rule that they drafted after receiving authority to regulate CAFOs, new farms would not have to notify neighbors, local governments and newspapers of their permits.
Watkins said that while he “felt good” about the Pollution Control and Ecology Commission’s decision to propose a permanent moratorium in regulation 6, he knows that a larger fight lies ahead with the other regulation now under the jurisdiction of the Arkansas Department of Agriculture.
Both the changes to regulation 6 made by ADEQ and the Department of Agriculture’s new proposed rule for permitting CAFOs will eventually make their way to the Administrative Rules Subcommittee of the Legislative Council to be approved or denied by the state legislature.
The Administrative Rules Subcommittee considers changes to regulations by state government departments like ADEQ. Previously, the Arkansas Legislative Council threw out an effort to impose a permanent moratorium on hog farms in the Buffalo River Watershed, so Watkins and other environmentalists said they remain cautious a meaningful permanent ban will ever be put in place.
Both the Arkansas Department of Agriculture proposed rule and the new regulation 6 updates have the same language banning CAFOs in the Buffalo River Watershed. The Arkansas Legislative Council could consider both rules for final approval before the end of the year.
October 25, 2024 at 3:52 p.m.
The Pollution Control and Ecology Commission on Friday unanimously voted to adopt changes to a state regulation that would make an existing temporary moratorium on medium- and large swine farms in the Buffalo River watershed permanent.
The permanent moratorium is part of a group of changes to Regulation 6, which governs the state's administration of a federal Clean Water Act program. Those changes will go into effect if they are approved by the state Legislature in December.
Over 200 individuals and groups submitted public comments, both in favor and against the proposed changes. The comments were almost entirely addressing the moratorium.
Michael McAlister, the managing attorney for the Department of Energy and Environment's Office of Chief Counsel, told the commission that the permanent moratorium "does nothing to change the current status quo" which has been in place since the temporary moratorium went into effect.
He said the rest of the changes were necessary in order to comply with federal law and maintain the state's ability to administer federal environmental regulations.
Gordon Watkins, the president of the Buffalo River Watershed Alliance, reiterated concerns he made in his written public comment and in an interview with the Democrat-Gazette earlier this week when he stood to address the commission Friday morning.
The permanent moratorium, Watkins said, leaves a loophole for a Regulation 6 permit to still be granted to a medium or large swine farm if it has an existing liquid animal waste permit. There are four liquid animal waste permits granted to swine farms within the watershed, he said, although none of them remained active. He expressed concerns about what would happen should someone try to reactivate those permits, noting that C&H Hog Farms caused environmental damage to the watershed in the time it was in operation.
Charles Moulton, the administrative law judge for the commission, said that the moratorium's loophole would only apply to active permits based on his reading of it.
"I think what Mr. Watkins described was a bunch of inactive facilities," Moulton said. "That's going to be a little twist in terms of, if they do indeed, if the division (of Environmental Quality) does indeed get an application to restart those, how it's going to view that verbiage."
The Division of Environmental Quality's predecessor began the process of instituting a moratorium in 2014, in response to the controversy with the C&H Hog Farm in the watershed. That moratorium, however, was temporary, with language that it had to be made permanent in five years or deleted from the rule.
The Division of Environmental Quality, which proposed the rule amendment, tried to make the moratorium permanent in 2020 in accordance with the temporary moratorium's language. It made it through the administrative process but was ultimately shot down during legislative review in the face of opposition from agricultural interests and skepticism from lawmakers.
The division brought it back to the commission earlier this summer as part of a group of amendments to Regulation 6, which governs the state's administration of the federal National Pollutant Discharge Elimination System program.
According to the statement of basis for the changes, the division "initiated this rulemaking to Regulation 6 before the Arkansas Pollution Control and Ecology Commission to adopt federal revisions to the discharge elimination program, incorporate statutory revisions made by the Arkansas General Assembly, and make corrections and stylistic and formatting updates throughout the regulation."
The changes to Regulation 6 -- which will become Rule 6 if it makes it through the process -- now rest in the hands of the Arkansas Legislative Council's administrative rules subcommittee, which will take up the matter for final approval in December.
It is unclear whether the rule change will receive legislative approval this time around; lawmakers have already rejected a permanent prohibition in the watershed once before, and agricultural interests such as the Arkansas Farm Bureau Federation remain solidly in opposition to anything other than the full removal of the moratorium.
October 21, 2024 at 5:36 p.m.
The Arkansas Pollution Control and Ecology Commission will be giving final consideration to a rule amendment that would, amongst other things, make the swine farm moratorium in the Buffalo River watershed permanent at its regular October meeting this Friday, after over 200 groups and organizations submitted public comments.
If the commission votes in favor of the rule amendment, it will then go before the Arkansas Legislative Council's administrative rules subcommittee for legislative approval in December.
According to the statement of basis for the changes, DEQ "initiated this rulemaking to Regulation 6 before the Arkansas Pollution Control and Ecology Commission to adopt federal revisions to the NPDES program, incorporate statutory revisions made by the Arkansas General Assembly, and make corrections and stylistic and formatting updates throughout the regulation."
The commission approved the division's request to promulgate the rule and move forward with public comment. The public comment period was ultimately extended, and over 200 people and organizations submitted comments.
The Buffalo River Watershed Alliance, which has long fought against medium and large swine farms – officially known as swine concentrated animal feeding operations, or CAFOs – within the watershed, said in its public comments that CAFOs pose an unacceptable environmental risk to the Buffalo River.
"Quality of the river for recreational purposes, including primary contact, is dependent on the quality of the water in its tributaries," the alliance's president, Gordon Watkins, wrote alongside Kathy Downs and Beth Ardapple. "Due to the karst nature of the watershed, the river is particularly vulnerable to pollutants, such as liquid animal waste, which can penetrate the porous surface and emerge in springs which feed the river."
Dye studies "have verified this risk," Watkins continued. The alliance wrote that it "fully support(s)" the proposed permanent moratorium.
However, it also noted concerns regarding loopholes for existing swine farms permitted under liquid animal waste rules. It noted that there are four facilities with current permits under those rules, despite them appearing to no longer be in operation. The alliance said that if there was any way for these facilities to be "reactivated," then it could not support the language allowing for the issuance of permits for facilities that currently have a permit under Regulation 5.
The division did not substantially respond to this part of the alliance's comments, noting that Regulation 5 is "outside the scope of this rulemaking" while the authority to act on permits issued under Regulation 5 had been transferred to the Arkansas Department of Agriculture. However, the division did note that "An existing permit must be in good standing at the time of that transfer."
All of the swine farms that have made their way into the watershed in the past have caused "pretty serious environmental damage," Watkins said in an interview with the Arkansas Democrat-Gazette. Watkins said that the moratorium was necessary because even if swine farms wouldn't currently meet requirements to be issued a permit under current regulations, that didn't mean that the requirements for those permits would always stay the same. The moratorium, he said, provides some security that medium to large CAFOs won't be able to come into the watershed if permit requirements change.
Meanwhile, the Arkansas Farm Bureau Federation, which represents agricultural interests and was opposed to the original attempt to make the moratorium permanent, submitted comments in opposition to DEQ's second attempt, stating that the moratorium should be lifted in its entirety.
"Banning an agricultural activity, hog farming in this instance, from a watershed implies that activity is a significant threat," Evan Teague of the Arkansas Farm Bureau Federation wrote. "Previous scientific studies have refuted these assertions, and an ongoing yet to be published USGS study also suggests that agricultural production is not likely the cause of ongoing issues in the Buffalo River."
The bureau goes on to say that the proposed permanent moratorium could set a "precedent that could penitentially lead to further restrictions on various types of farming within the watershed and beyond." Meanwhile, it claimed, long-term monitoring and scientific studies in the watershed dating back decades did not support the need for a moratorium.
The division pushed back on this, noting that it "does not concur" with the federation's "conclusion regarding the history of swine farms in the Buffalo River Watershed."
"The potential impacts of swine farms, including farms large enough to be considered CAFOs, on the Buffalo River have been an ongoing concern in Arkansas, and the Division (or its predecessors) have taken action to mitigate the impacts of existing farms in that watershed," the division wrote in response.
The federation also said in its public comments that small swine farms – which were excluded from the temporary moratorium -- would be included in the permanent moratorium as well. In its public comments, the federation wrote that "This extension of the moratorium to small farms has been proposed without any scientific or regulatory justification. This further demonstrates the arbitrary nature of these proposed changes, which we believe lack sound reasoning or evidence-based support."
While the language of the permanent moratorium says that a new permit would not be issued pursuant to the rule "for a new swine CAFO" in the watershed and strikes language from the text of the regulation itself that references the size and number of swine that would make the moratorium apply, the stricken language was largely reworded and moved to the definitions section of the overarching rule.
In the definitions section of the rule, which provides regulatory definitions for relevant terms in a rule or regulation, the division defines a CAFO as an animal feeding operation, or AFO, "that is defined as a Large CAFO or as a Medium CAFO" in accordance with federal regulations.
Federal regulations define a medium CAFO as a facility that houses more than 750 swine that weigh over 55 pounds or more than 3,000 swine weighing less than 55 pounds, while a large CAFO is a facility that houses 2,500 or more swine weighing more than 55 pounds or 10,000 or more swine weighing less than 55 pounds.
In other words, unless a swine farm meets the federal definition of a medium or large CAFO or is designated as one in accordance with federal regulations, small swine farms still appear to be exempted from the moratorium according to the text of the proposed rule amendment.
The federation also questioned if the Environmental Protection Agency was requiring the division to make the moratorium permanent, citing the division's assertion that the rulemaking was necessary to comply with federal law and maintain the state's ability to administer federal environmental programs. The division denied this.
In addition to the permanent moratorium, the rulemaking is also making changes to comply with changes to federal environmental regulations, along with changes to state law.
When asked for comment on the proposed rulemaking, the federation said that their public comments were "inclusive" of its position and that they wouldn't have anything else to add on the matter as a result.
Meanwhile, Watkins of the Buffalo River Watershed Alliance said the decision before the commission this week merely sets up the real showdown which will occur in December.
"I think the real 'come to Jesus' moment is going to be before the Rules Committee," Watkins said. "This moratorium protects the Buffalo National River, the icon of this state."
Madison County Record - Sept 11th - Ellen Kreth, Publisher
FARM BUREAU SUPPORT LIFTING BUFFAO RIVER MORATORIUMS
Farm Bureau supports lifting Buffalo River moratoriums
Proposed regulation reduces public notice.
An Arkansas Department of Agriculture proposed regulation has opened the door to the possible lifting of a moratorium of liquid animal waste permits in the Buffalo National River Watershed and proposed less strict public notifications of those permits.
In 2019, as part of an agreement to close C&H Hog Farms in Mt. Judea, a large farm in the watershed, then-Gov. Asa Hutchinson issued a moratorium preventing large-scale swine farms from operating in the protected watershed.
C&H Farms had been in operation since 2012 on the banks of a tributary that feeds into the Buffalo National River.
During the Regular General Assembly in 2023, the Arkansas Legislature passed a bill that transferred the permitting process for liquid animal waste permits from the Arkansas Department of Environment Quality (ADEQ) to the Arkansas Department of Agriculture, which was tasked with reviewing and promulgating rules for liquid animal waste permits.
Liquid animal waste systems include those used for the collection, storage, or distribution of animal manure in liquid form generated by Concentrated Animal Feeding Operations, which is oftentimes referred to as COFAs.
That bill, along with a companion bill exempting information about nutrient management plans or poultry litter management plans exempt from the Arkansas Freedom of Information Act, were sponsored by DeAnn Vaught, R-Horatio. Vaught, who is a hog farmer, did not respond to The Record’s request for comments.
The department of agriculture is now tasked with issuing and modifying permits, approving design plans and site requirements, and promulgating rules for waste management systems.
The new law transferred to the Arkansas Department of Agriculture applications of new permits or modifications of existing ones filed with ADEQ that have not been reviewed for final decision and directed the department to rewrite Regulation 5.
Regulation 5 governs rules for liquid waste management for swine, poultry or dairy farms or other COFAs.
The proposed regulation includes proposing a moratorium for all new swine COFAs in Buffalo National River Watershed, not just large-scale farms, and it struck many public notice requirements regarding such permits.
Evan Teague, Arkansas Farm Bureau Federation Vice President of Environmental Issues, said the transfer of permitting power from ADEQ to the department of agriculture was in part due to the way C&H Farms was treated during its permitting process.
“We felt like the way that C&H Farms was treated through the agency process and review process was not fair,” he said. “A lot of trust was lost over the fact that staff there can administer agricultural related permits fairly and without prejudice.”
Teague said agriculture is the number one contributor to the state’s GDP and, “It just seems like a lot of folks through that process over the last decade have forgotten that.”
According to President of the Buffalo River Watershed Alliance Gordon Watkins, the department of agriculture is not properly equipped to enforce permit regulations, and it lacks the staffing to properly conduct inspections.
The alliance was formed in 2013 in response to C&H Farms permit. It has argued that the river is contaminated from the runoff of the farm contaminates and damages the river.
Many of the new components under proposed Regulation 5 are in response to the permitting process around C&H Farms.
In 2012, C&H Farms applied for a permit under ADEQ’s Regulation 6 for a large-scale hog farm near the Buffalo River. Though the farm complied with all regulations and published a legal notice in the Arkansas Democrat-Gazetteas well as having the permit posted on the ADEQ website, many people stated they didn’t know the farm was operating and expressed concerns that the waste from the farm would damage the Buffalo National River water quality.
Regulation 6 required the farm to reapply for a permit every five years.
Proposed Regulation 5 does not have a reapplication process, and unless the permit needs modifying, the permit is perpetual.
In 2017, C&H Farms began operating on an expired but extended permit, before the ADEQ denied a new operating permit in 2018, citing water quality issues and insufficient geological investigations of the farms’ rough karst terrain.
According to the National Park Service, karst terrain is a type of landscape where the dissolving of the bedrock creates sinkholes, sinking streams, caves, springs, and other characteristic features.
Teague said research has shown the farm waste was having no impact on the river.
In 2019, the state paid $6.2 million in a settlement agreement to close C&H Farms and give the Arkansas Natural Heritage Commission, a part of the Division of Arkansas Heritage, a conservation easement to the property, which is near Big Creek, 6.6 miles from where it flows into the Buffalo National River.
In addition, Hutchinson issued a moratorium banning large-scale swine operations in the watershed.
Even though the legislature never approved the moratorium, it remained in place.
Watkins said no one has applied for a permit since the moratorium was issued so a question remains what the outcome would have been if a permit had been submitted while the moratorium was on the books but not adopted by the General Assembly.
“Our opinion is this moratorium, honestly, never should have been put in place. And, to be honest, we’re not sure that the process that was used met standards and thresholds required by state law,” Teague said.
In response to the proposed Regulation 5, Teague told the Pollution Control and Ecology Commission in public comments, “The ‘right to farm’ is a foundational principal that supports the continuation of agricultural operations without unreasonable interference. This rule not only affects swine production but could also have a lasting impact on the broader farming community and future generation of farmers.
“The proposed moratorium sets a precedent that could potentially lead to further restrictions on various types of farming within the watershed and beyond.”
“Although Arkansas Farm Bureau has always been opposed to the moratorium, one thing that really caught our attention was that they removed the exemption for small farms,” in Regulation 5, Teague said.
That opened the door for the Farm Bureau to say it didn’t want the moratorium at all.
“There’s no need for a moratorium. There’s no need for the government to immediately say, ‘No,’ without some review of the science and the situation,” said Steve Eddington, a spokesperson for Farm Bureau. “So there’s no need to automatically say no before you ever look at any of the facts and that’s what a moratorium would do.”
Watkins supports the moratorium and submitted comments to the Arkansas Division of Livestock and Poultry stating, the “Quality of the river for recreational purposes, including primary contact, is dependent on the quality of the water in its tributaries.
“Due to the karst nature of the watershed, the river is particularly vulnerable to pollutants, such as liquid animal waste, which can penetrate the porous surface and emerge in springs that feed the river,” he said.
Watkins said studies have verified the risk.
“Because of the importance of the Buffalo River to the economy of Arkansas, and particularly to those communities within its watershed, it behooves the state to take appropriate steps,” such as the moratorium to preserve and protect the river.
Watkins also stated Regulation 5 allows the agricultural department to modify existing permits and that could affect permits for four facilities in the Buffalo National River Watershed that are “active” but not currently operational. He argues those permits should be voided.
Seeking clarification, he asked the agriculture department whether these four active permits could be reactivated under the proposed regulation if they are not voided.
Teague said he is aware of the four permits but said from his understanding none of them will be reactivated.
He said it’s not uncommon to have active permits but not have an operational farm.
“There are many farmers that used to raise hogs, and they keep their permits active in case they decide they want to try and get back in the business.
“But even if they were to try and do that, they’re going to have to update and upgrade those facilities and they would have to go back through public hearing and update their nutrient management plans,” Teague said.
Watkins disagrees and said the language in proposed Regulation 5 does not make it clear.
The proposed regulation states the department may issue a permit renewal or modification for COFAs in the watershed with an active permit.
“It raises questions about why these permits are still active in the watershed and could they actually be reactivated,” Watkins said.
“Nobody could answer these questions,” Watkins said.
Lessening Public Notice
Proposed Regulation No. 5 would also take public notices out of newspapers as well as doing away with the requirement of sending notices via certified mail to adjoining landowners, county judges, school superintendents and mayors.
The proposed regulation would require notices to only be posted on the Arkansas Department of Agriculture website. Public notice on draft permits will be accepted beginning the day of the notice is posted and will close 30 calendar days after the notice.
The lessening of public notice has drawn the ire of conservation groups.
“The point is we’re about to go from reasonable public notification to none at all. Not even newspapers,” according to Brian Thompson, president of The Ozark Society, a regional conservation organization formed in the 1960s to oppose dams on the Buffalo River.
“They’ve done a remarkable job of keeping this under the radar,” he said.
The proposed regulation is statewide and not just for potential operations near the Buffalo National River.
Changing notification requirements “when it has been routinely provided in the past, suggested a calculated lack of transparency with stakeholders who certainly deserve to be informed regarding an operation that may impact their community,” Thompson wrote in comments to the Livestock and Poultry Division.
“The proposed language is wholly inadequate in terms of transparency and public notice,” according to Watkins.
“I believe in transparency at all levels of government,” said John Tull, attorney for Quattlebaum Grooms and Tull and a FOIA expert and advocate.
Tull is also an attorney for the Madison County Record.
“When you take away specific requirements for public notice, you run the risk of people who should receive notice not actually receiving it,” he said, adding not requiring public notice is “bad government policy.”
When C&H was granted a permit under ADEQ’s Regulation 6, Watkins said in comments made to Cory Seats of the department of livestock and poultry, “The public, including Buffalo River Staff, were unaware of this permit until long after it was issued and the facility was completed and were thus unable to provide public comment when the permit was being reviewed, which presented standing to challenge the permit.”
After a public outcry regarding what people saw as a lack of proper notification regarding C&H Farms, public notification regulations were changed.
The permit for C&H was issued in August 2012, but it was not until late December that the “Park Service caught wind about it, and that one issues there, regardless of how you feel about hog farms, the legislature realized that that public notice requirement was a real problem.”
At a legislative committee hearing in 2014 regarding proposed changes that strengthened notification requirements, “No committee member asked any questions and the proposal was returned to the Ecology Commission for final adoption,” Thompson said.
“The point here is that legislative members clearly recognized that robust public and stakeholder notification was in the best interest of Arkansas citizens while serving to avoid future conflict over transparency,” Thompson said.
Teague said Farm Bureau has not been involved in the public notice section of proposed Regulation 5.
FOIA Exemption
Act 1707 also exempts information regarding nutrient management plans and poultry litter management plans from the Arkansas Freedom of Information Act which means the public will not be able to know if its water is being contaminated by somebody who is not managing their operations properly, Watkins said.
Information regarding the poultry industry has been exempt under FOIA for many years, but his new law expands that exemption to information regarding farm locations, how many animals are on the farm, the amount of litter being produced, and whether it’s being applied or transferred out.
“If we did not have access to that information for C&H, we never would have shut them down,” Watkins said.
Watkins said the public should have access to that information.
He said he has lived for 50 years in Newton County on the Buffalo National River and has his water tested and it’s always come back “fine.”
He said if someone put in a hog farm on the mountain above where he lives the chances are pretty good it’s going to impact his drinking water.
“So if I start getting sick and I check my drinking water and find it’s got elevated E. coli, then where do I go? You know, what’s the source of it?” Watkins said. “With the new FOIA exemption, “At this point, you wouldn’t be able to know.”
Watkins said if the public suspects a violation, they could “call it in” and request someone investigate.
“But you wouldn’t know that because you can’t have access to the (information) under that exemption under FOIA,” he said.
Public comments regarding Regulation 5 close on Sept. 16 at which time, the department must respond the comments submitted before making a determination regarding Regulation 5. That recommendation must then go before the Arkansas Legislative Council for approval.
Today at 2:55 a.m.
by Mike Masterson
The responsibility for permitting and acting as watchdog over large concentrated animal feeding operations (CAFOS) in Arkansas appears on the verge of significant changes in rules, making it more challenging for stakeholders to know when and where a CAFO is planned.
Brian Thompson, president of the environmental watchdog Ozark Society, reminded Arkansans of how the Arkansas Department of Agriculture assumed control over this critical responsibility.
"Those reading during the 2014 era will recall the enormous controversy over our state's former Arkansas Department of Environmental Quality (ADEQ) quietly permitting a private interest to establish a large concentrated animal feeding operation (CAFO) along a tributary of America's first national river, our popular Buffalo in north central Arkansas," he said.
"That issue was ultimately resolved by the state buying out the CAFO. Now the state's oversight for future CAFO proposals and proper operations statewide is transferred to the Arkansas Department of Agriculture (ADA), a friend rather than watchdog to CAFO owners."
With this change has come a new series of proposed regulation requirements about how those who propose CAFOs must let the public know of them well in advance so interested voices can then be heard.
Gone will be the Department of Environmental Quality's original rule that required publishing a notice of the CAFO proposal in the closest newspaper. Neither will there be the traditionally required letters to adjacent property owners, nor notification of the county judge, or school superintendent, or local mayors within 10 miles of the site. There won't even be a sign posted.
Reportedly, the only requirement will be that such a notice appear on the obscure Department of Agriculture website, which one would have to check regularly to have any hope of being fully informed about such requests. Fat chance. And forget legal action later if you didn't comment on the permit in that period.
The proposed rule will confer on the Agriculture Department the authority to issue and modify permits related to liquid animal-waste management systems and to approve design plans and site requirements or take any other action related to liquid animal-waste management systems. In other words, the whole enchilada.
If you have comments on this proposal, reactions are being received by mail until Sept. 16 at Arkansas Department of Agriculture, Attn: Corey Seats, 1 Natural Resources Drive, Little Rock, AR 72205, or emailed to rule.comments@agriculture.arkansas.gov.
Thompson has thoughts about it that match my own: "Whose idea was this? Those with vested interests in these enormous polluters of streams and rivers? I can't imagine anyone else would want to restrict public knowledge."
Good questions that deserve answers. Exactly which Arkansas group or agency with a specific vested interest in promoting industrial hog farming with thousands of tons of raw waste is behind or supporting this move to obstruct the widest possible transparency?
It has all the earmarks of a ham-handed effort to make it difficult for Arkansans to know when and where a CAFO is being proposed. So, I'm asking all who do learn of such an application (or even the Department of Agriculture) to email me and I'll gladly make that information public for everyone.
by Phillip PowellSeptember 6, 2024 7:12 pm
Arkansas environmental groups are sounding the alarm on a new rule proposed by the Arkansas Department of Agriculture that would make it harder for the public to learn about new permit applications for livestock and poultry farms that use liquid animal waste management systems.
Until recently, the Arkansas Department of Environmental Quality (ADEQ) was responsible for regulating liquid animal waste generated by livestock feeding operations. That changed with a law passed by the state Legislature last year that transferred regulatory authority to the Department of Agriculture instead.
Environmental advocates praised one part of the new Department of Agriculture rule, which would place a moratorium on permits for hog farms in the watershed of the Buffalo River. But they said it would also dramatically reduce public transparency surrounding the permitting process and make it more difficult to hold livestock farms accountable for pollution.
Gordon Watkins, president of the Buffalo River Watershed Alliance, told the Arkansas Times that ADEQ provided the public with detailed information permits under “regulation 5,” which governed liquid animal waste.
“At ADEQ, I could go online and look up every permit they ever issued under regulation 5, and I could read the permit application, the nutrient management plans, and the inspection reports,” Watkins said. “I could see annual reports, and all the information about that particular operation. It gave the public the opportunity to see if an operation was following the rules.”
In contrast, under the new proposed rule, the Department of Agriculture would only provide public notice of new permit applications for livestock and poultry farms on the agency’s website.
“There will be no notification of anyone except for a blurb on the website,” said Brian Thompson, president of the Ozark Society, a conservation group focused on protecting the Buffalo River. “So, why is the notification important? If you don’t put a comment in on a permit, you don’t have legal standing to challenge a permit.”
Liquid waste from hog farms can oversaturate land with phosphorus and nitrogen runoff, and can easily pollute waterways.
Environmental advocates aren’t the only ones unhappy about the rule. In public comments, a representative of the Arkansas Farm Bureau, a trade association for farmers, argued against the moratorium on hog farm permits in the Buffalo River watershed. “The right to farm is a foundational principle that supports the continuation of agricultural operations without unreasonable interference,” the Farm Bureau said.
The Farm Bureau’s comments did not mention concerns over public notification of permits.
Hog farms in the Buffalo River watershed have long been controversial. A large-scale operation in the area, C&H Hog Farm, was infamously granted a liquid animal waste permit over a decade ago, sparking environmental concerns and a pressure campaign from conservationists. Under Gov. Asa Hutchinson’s administration, the state eventually struck a deal to close the farm.
A Freedom of Information Act request to the Department of Agriculture revealed dozens of Arkansans supporting the permanent moratorium on permits for swine farms in the Buffalo River watershed.
Link to 214 comments here
In public comments, environmentalists largely advocated in favor of the proposed moratorium and greater transparency, now that regulation has moved to the Department of Agriculture. Farm advocates requested that small farms be exempted from the proposed moratorium in the watershed.
Thompson said that environmental groups were able to hold C&H Hog Farm accountable because of the public information and transparency around its pollution footprint.
As Thompson explained, when ADEQ was in charge of enforcing liquid animal waste regulations, all landowners near any newly proposed livestock farms would be notified by the applicant. A public notice of any proposed permits would be sent to the county judge, mayors of nearby municipalities, the superintendent of the nearby school district, and the local newspaper.
ADEQ also kept a public database available for people to look up permit violations, such as when a farm is disposing of more liquid waste than they are supposed to.
Watkins, of the Buffalo River Watershed Alliance, said the Department of Agriculture does not have a public-facing database that individuals can use to check whether farms in their area have committed permit violations.
Legislators have tried in years past to transfer permitting authority for liquid animal waste away from ADEQ. A bill in 2019 would have shifted regulatory oversight to the Arkansas Natural Resources Commission, but it was withdrawn at the time. The 2023 legislation that transferred authority from ADEQ to the Department of Agriculture was sponsored by Sen. Blake Johnson (R-Corning) and Rep. DeAnn Vaught (R-Horatio). Vaught and her husband own a dairy and a hog farm in Horatio, according to her campaign website.
All public comments on the new rule must be submitted by Sept. 16.
Phillip Powell writes about agriculture and the environment for Arkansas Times as a Report for America Corps Member.
BRWA comments and background on rule making for changes to Regulation 6.
Background
Regulation 6 of the Arkansas Pollution Control and Ecology Commission defines the rules for the Arkansas Division of Environmental Quality (ADEQ) to administer the National Pollutant Discharge Elimination System (NPDES), a program delegated to the state by the federal Environmental Protection Agency.
Reg 6 applies primarily to construction storm water permits, wastewater treatment plant permits, and pesticide applicator permits. Importantly, it also covers liquid animal waste permits, such as the one previously held by C&H Hog Farm, which was cancelled and closed by the State in 2019. C&H was the first and only such animal waste permit issued under Reg 6. (Others previously were and are currently permitted under Reg 5, a separate state permit program now administered by Arkansas Natural Resources Commission (ANRC)).
As part of the resolution of the C&H permit, then-Governor Asa Hutchinson directed ADEQ to take steps to establish a permanent moratorium against the issuance of any future swine permits within the watershed of the Buffalo National River to prevent the recurrence of such a threat to the river. The state legislature struck down a previous effort by ADEQ to comply with the Governor’s request.
Comments on Rule Making
This rule making primarily addresses changes necessary to comply with the federal NPDES program and includes such things as updates to federal and state law, clarifications and minor corrections. Of interest to BRWA and our supporters are the changes to Chapter 6, “Specific Watershed Requirements” which establishes a permanent moratorium, stating in part, “ The Director shall not issue a permit pursuant to this rule for a new swine CAFO in the Buffalo National River Watershed” We fully support this language.
However, 6.602(C) says, “This rule does not prohibit the Director from: issuing a new Rule 6 permit for a facility that holds an active Liquid Animal Waste Management Systems permit as of the effective date of this rule.” The section does allow for the issuance of new Reg 6 permits to holders of existing Reg 5 permits in the watershed but does not allow for any increase in the number of animals. BRWA has identified four facilities in the Buffalo River watershed with “Active” permits, although none are currently operational and most have been effectively closed for several years. Although they have not completed the required closure procedures, none have any animals and none have submitted annual reports since 2019 or earlier. We would like clarification from DEQ as to whether any of these facilities could be reactivated to either 1) restock animals and resume previous operations, or 2) accept waste from other facilities for field application, including industrial waste. If these facilities could be reactivated, or they can accept transferred waste, we do not support this language.
While BRWA generally supports this rulemaking we would like clarification regarding existing Reg 5 permits in the watershed and we remain concerned about similar language in Regulation 5 which is where current and future swine permits reside and we will be vigilant for future changes to Reg 5.
Ecology panel approves rule changes
The Pollution Control and Ecology Commission gave the Department of Energy and Environment the go-ahead to proceed on two proposed changes to its rules during its Friday meeting -- including one that would make the 2015 moratorium preventing issuance of new swine permits in the Buffalo River watershed permanent while also altering the language of the 2015 ban.
The rules -- the other of which is a change being done in tandem with changes to Arkansas Oil and Gas Commission rules -- will now go into the public comment period.
The first of the two rule changes, to Rule 1, will facilitate the transfer of authority over high-volume Class II disposal wells and their associated surface facilities and the surface facilities of Class II commercial disposal wells to the OGC.
The second of the changes, to Rule 6, is being done to comply with new federal regulations, interim Chief Administrator of the Environment Bailey Taylor told the commission. She pointed out that a failure to make state rules comply could affect the state's authority over the National Pollutant Discharge Elimination program, which is delegated from the federal government.
In addition to bringing the rule into line with federal regulations, it also makes modifications to maintain the "status quo" in the Buffalo River watershed, Taylor said, after the state purchased the controversial C&H Hog Farms facility and closed it in 2020.
The proposed rule, on paper, broadens the moratorium to apply to new concentrated animal feeding operations (CAFOs) in the watershed, with the proposed language reading "The Director shall not issue a permit pursuant to this rule for a new CAFO in the Buffalo National River Watershed." However, Taylor said in her remarks to the commission that the department wants to add the word "swine" in between "new" and "CAFO" in order to "maintain status quo with the moratorium," which would effectively limit it only to swine operations, though without the specific number and weight restrictions currently in place.
The proposed rules struck language specifying the number and weight of swine necessary to meet the moratorium requirements. Under the current rules, permits won't be issued for facilities with "(1) 750 or more swine weighing 55 pounds or more; or (2) 3,000 or more swine weighing less than 55 pounds."
The proposed changes, if ultimately adopted, would also make it so that the permitted number of swine can't be increased in a "new permit or subsequent permit renewals" issued pursuant to Rule 6.
In 2020, attempts to make a temporary moratorium on medium and large swine farms in the watershed was shot down by the Arkansas Legislative Council.
Despite a stipulation within the temporary moratorium, which went into effect in 2015 with a rule change, that said that the department would either need to lift the moratorium or make it permanent within five years, the department evidently allowed the moratorium to stay on the books after the defeat of its 2020 rule change. This is the first proposed change to Rule 6 since the 2020 attempts, according to the Division of Environmental Quality's website, and the paragraph making the moratorium temporary is struck in the proposed changes.
In addition to the watershed-specific changes, other changes within Rule 6 will streamline reporting by using an online platform.
"The use of the platform is expected to reduce costs as it is a more efficient permitting processing system," E&E spokesperson Carol Booth wrote in an emailed statement. "The Arkansas Department of Energy and Environment expects that Seek will also reduce the department's review timeline. This online process is expected to reduce costs incurred by applicants and reduce the applicant's time-related cost that can be caused by permit-related delays."
Other changes that were part of the proposal put before the commission were part of the department's efforts to bring Rule 6 in line with new state laws as well, and the department expects lower costs to permittees.
"The revised rule implements new statutory requirements for non-municipal domestic sewage treatment works permittees to make trust fund contributions in place of the previous statutory requirement for a financial assurance mechanism for the funds sufficient for a third party to operate the system for five (5) years," Booth wrote. "The required contribution to the trust fund is generally less than the previously required financial assurance mechanism."
Madison County Record
Posted Wednesday, March 6, 2024 9:45 am
By Ellen Kreth, For The Record
The Alliance for the Buffalo National River (ABNR) released results from a poll taken after a town hall meeting regarding re-designating the Buffalo National River as a national park or preserve.
The Oct. 26 meeting held at Jasper High School had more than 1400 in attendance and was organized after The Madison County Record published a story detailing efforts by Steuart and Tom Walton — brothers and grandsons of Sam and Helen Walton, founders of Walmart — to consider re-designating the river to a national park.
In 2022, the Waltons quietly approached U.S. Congressman Bruce Westerman, R-Ark., who represents Arkansas’ 4th Congressional District and chairs the Natural Resources Committee, about changing the river’s designation to a national park and preserve. In conjunction with their idea, and acting under the umbrella of The Runway Group, a holding company originated by them, the Waltons also paid for a national survey gauging whether the river should be re-designated.
The Runway Group hired Selzer & Company, who polled 412 voters in Baxter, Madison, Marion, Newton and Searcy counties and produced a flyer touting the results, with most of those survey responding favorably to the re-designation.
However, the results have been attacked by those living along the river as being unfair, many attending the meeting stating the survey’s questions were skewed by leading those polled to believe that changing the river’s designation would be a good thing for the area. They also complained about the number of voters who were surveyed and where they lived in proximity to the Buffalo National River.
Last fall, after the town meeting in Jasper, a grassroots survey was conducted by ABNR of people attending the meeting and those living near the Buffalo watershed.
“After reading The Runway Group’s survey questions and responses, and observing that Baxter County residents were the largest group surveyed by The Runway Group, ABNR wanted a clear set of questions for residents who live in the counties that would be affected by changes that might occur from any type of redesignation of the Buffalo National River,” Misty Langdon said in a statement issued on behalf of ABNR.
The group’s survey showed vastly different results from the one paid for by The Runway Group.
“The feedback we received was in stark contrast to that from The Runway Group’s survey. We also wanted to receive input from a greater number of respondents, as a pool of 400+ didn’t feel sufficient,” the ABNR statement said.
“Our results are from a group of 737 respondents from primarily Newton and Searcy counties. News outlets are still circulating and relying upon The Runway Group survey, despite the obvious flaws in its methodology.”
More than 700 responded to the ABNR survey, with 491 saying they lived in Newton County and 232 noting they lived in other counties, including Madison County.
“ABNR’s survey hopes to provide updated, clear, and concise responses to straightforward questions presented to locals in the counties most affected,” the statement said.
Of those respondents, 705 voted that river remain as it is. Nine people voted to have the land re-designated as a preserve, but not a park.
Twenty-three people or 3% of respondents said they were participating in both surveys, the grassroots one from the town hall meeting and the one paid for by The Runway Group.
The ABNR poll asked people what their biggest concerns were if the land were to be re-designated.
Their top concern — 83% — said they were concerned about government and corporate overreach. Other concerns included the government’s use of eminent domain (82%), park expansion (78%) and increased taxes (75%). People also responded they were concerned with being able to afford land (69%) if the land was re-designated and about gentrification (68%).
Respondents expressed concerns about activities becoming restricted or banned if the land was re-designated. Farming topped the list of concerns with 82% saying they were concerned that if the land changed to a national park or preserve farming would be restricted, 78% were worried that fishing and hunting would be restricted and 64% were concerned that canoeing, kayaking and rafting might be restricted.
Other concerns were having restrictions on horseback riding (54%), hiking (57%), rock climbing (39%), bike riding (36%).
After The Record’s coverage, the Waltons backed off the idea and Westerman said no legislation is currently being proposed to re-designate the land. Westerman told constituents during a live-streamed town hall people that the issue had been overblown and he visited Jasper last fall in an attempt to assure people that he was not currently considering introducing legislation re-designating the river.
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