Chicken farms hide in plain sight under Arkansas law
Recent court decision might engender more accountability
If you drive down the winding country roads west of Ponca, Arkansas, you might come across a stretch of land with three long structures — metal roofs, green siding. Just off the county highway, down a short clip of gravel road, you’d see a sign marking the chicken farm as a Cargill operation. It would give every indication of existing on this material plane — but for all intents and purposes, it doesn’t exist on paper in Arkansas. At least not according to the public record.
That’s because chicken houses — and all such industrial housing associated with the poultry industry — are exempt from the Arkansas Freedom of Information Act under a law passed by the Arkansas Legislature in 2003. This is of particular interest to people like Gordon Watkins, founder of the Buffalo River Watershed Alliance (BRWA), who are concerned about the effect that waste, or litter, produced by chicken operations is having on the Buffalo River’s watershed.
Although some public information is available about the litter, it’s mostly on a countywide, not site-specific basis, which makes tracking the flow of potentially damaging nutrients like phosphorus especially problematic.
That may be changing thanks to a recently decided federal court case — a decision that also highlights just how damaging industrial runoff can be.
On Jan. 18, 2023, U.S. District Judge Gregory K. Frizzell handed down a ruling for a case that had concluded nearly 14 years prior. The lawsuit had been brought by the state of Oklahoma against 11 Arkansas poultry producers. The federal judge ruled that the producers had violated Oklahoma trespass and public-nuisance laws by letting their contract growers use chicken and turkey waste as fertilizer within the Illinois River watershed.
One of the key findings of the 219-page ruling is this: In the years ahead, the major poultry integrators — like Cargill and Tyson — may be responsible for the waste coming out of the chicken houses.
“For decades, the poultry integrators [Tyson, Cargill, George’s, et al.] have said, ‘We don’t have any responsibility for the waste — that’s on the farmer. We provide the chickens and we provide the feed and then the farmer gets the shit. How they handle that is up to them to do it. So we’re not liable for any of that,’ ” the BRWA’s Watkins said. “Well, this lawsuit said no, that’s not the case. You’re ‘vicariously liable.’ That’s the language that the judge used. So now, if that stands, the integrators are responsible for that waste.”
‘Summary information’ only
The Buffalo River Watershed Alliance formed in 2013 after members realized a large-scale hog operation, C&H Hog Farms, had been approved near one of the Buffalo River’s major tributaries. Concerned that runoff might contaminate and irrevocably damage the river — the first National River in the U.S. and a tourism boon that drew $66.3 million to communities near the park in 2020 — the BRWA spent years petitioning the Arkansas government to close C&H, (the state eventually bought it out in June 2019).
In 2016, while still in the thick of things with C&H, Watkins and members of the BRWA began turning their attention to the footprint of industrial-scale animal farming on the Buffalo River.
When they started asking questions about the poultry industry, however, they hit a wall.
“So we wanted to get a big-picture view of what’s going on in the watershed because we couldn’t find that information,” Watkins said. “And so we went to the [Arkansas Natural Resources Commission], and we said, ‘Can you provide us information about chicken operations and watersheds?’ And they said, ‘Oh, no, there’s a statute that prohibits us from releasing any personal identifying information on poultry operations.’”
The Arkansas Natural Resources Commission (ANRC) told the Buffalo River group that it could provide annual countywide counts of how much poultry was being produced, how many chicken houses there were, and how much waste was being produced. But there wasn’t any public information available about where those chicken houses were located.
The reason: In 2003, the Arkansas Legislature passed Act 1059, which said, in part, that public records surrounding the poultry industry were off limits. The law, sponsored by Rep. Preston Scroggin and co-sponsored by Sen. Gilbert Baker, doesn’t mention the state FOIA, but one line of text buried on the fifth page reads:
“Any records collected by the commission in furtherance of this subchapter that contain information about a specific nutrient management plan or specific nutrient application shall not be made public record.”
Owing to an amendment made in the 2005 legislative session, the law didn’t take effect until Jan. 2, 2007. Where before there had been ample data provided to the public, now that data was secret. Some of that information, supplied by the Arkansas Highway and Transportation Department, is still available on the state’s GIS page — but new data has not been added since August 2006.
When asked about this, ANRC Director Chris Colclasure confirmed that while the ANRC requires operations with more 2,500 confined birds to register with the commission — providing their location, how many birds, how much litter is produced, and whether that’s applied or transferred out — that information isn’t public.
“We provide summary information, but we do not provide information on individual farms,” Colclasure said. “So we summarize by county, but we do not indicate individual farms. And the law’s actually specific to that.
‘Trying to get a handle’
Where others might have taken that for a loss, chalking it up to a casualty of an overzealous legislature and turning their attention elsewhere, Watkins and the BRWA opted to conduct some research of their own. Using a grant from the Patagonia Foundation, the BRWA hired GIS researchers to help them spot chicken operations in the Buffalo River watershed using satellite imagery.
“You can also tell from aerial views which [operations] are active and which are inactive with pretty high certainty,” Watkins said. “Roofs will be gone or there’ll be junk piled around the place or something like that, and you can pretty easily tell if they’re active or inactive.”
The result was a far better picture than the state was able to provide. By analyzing that satellite imagery, the Alliance was able to determine there were 79 chicken houses in the Buffalo River’s watershed. Another 65 were within two miles. Based on the amount of active estimated roof area of 1.64 million square feet, the group estimates there are roughly 11.8 million chickens and turkeys produced per year, creating 37,594,000 pounds of solid waste.
Some room for error needs to be accounted for with this picture. As Watkins notes, there’s a chance that some imagery might not be completely up to date, that some chicken houses that appear active might be inactive or vice versa, and so on. The group hoped to conduct some drive-bys to verify that information. But they’ve currently suspended the project owing to the fact that farmers are in the midst of an avian influenza outbreak.
“Poultry farms are walking on eggshells, so to speak … and we didn’t want to inflame that by them thinking that we’re snooping around, trying to contaminate their operations or something like that,” Watkins said.
Still, Watkins emphasizes that this isn’t so much a matter of pointing fingers as trying to understand the broader picture of the challenges the Buffalo River faces.
“We’re just trying to get a handle on the extent of the problem — or the extent of the industry, I guess you’d say — in the watershed,” he said. “And because it lacks so much transparency, this was the best way we can figure out how to do that.”
The BRWA took inspiration for its map from one in nearby Missouri: In 2019, the Missouri Coalition for the Environment published an interactive map showing not only protected watersheds, impaired waterways, and manure application rates, but also the locations of more than 500 poultry, hog, beef, and egg operations around the state. To make that map, the authors noted that they used data provided by the Missouri Department of Natural Resources.
‘Connect the dots’
One of the major hurdles Watkins and the BRWA came up against in their search for information came down to a question of whether the waste in question is “wet” versus “dry.” As it turns out, the difference is far from just semantic.
Hog waste is considered “liquid waste” and is therefore monitored by the Arkansas Department of Environmental Quality. As such, any hog farmer in the state is required to submit nutrient management plans. This means that they need to submit soil tests, declare how much waste is being applied to a given piece of land, and so forth. This information is also considered public.
Poultry litter, however — which is considered “dry waste” and is monitored by a different governing body, the ANRC — occupies far different territory. Chicken operations also have to submit similar information to the ANRC, but none of that information is public. What’s more, the state does not require these operators to submit a “Nutrient Management Plan” even if they apply litter, sewage sludge, or commercial fertilizer. Unless, that is, it’s within the “Nutrient Surplus Area.”
The shaded area on the map is designated a “nutrient surplus area,” meaning soil and water pollution from organic sources such as fertilizer or animal waste must be monitored and regulated. (Source: Arkansas GIS)
Act 1059 of 2003 established the parameters for the current “Nutrient Surplus Area,” a C-shaped area that cups much of the northwest corner of the state and extends as far as Polk County. This area, as defined by the Arkansas Department of Agriculture, is characterized by “such high concentrations of one or more nutrients that continued unrestricted application of the nutrient could negatively impact soil fertility and waters of the state.”
In layman’s terms, that means it’s been loaded so heavily with nutrients — read waste — that it requires careful scrutiny to avoid further damage to the environment.
Even though the use of a Nutrient Management Plan is strictly voluntary if an operator is outside the Nutrient Surplus Area, the ANRC says more than 700 such plans are written outside of the nutrient surplus area annually. They cannot, however, say how many of those plans are written for poultry operations.
Although a spokesperson with Tyson said they’re “still reviewing the [Illinois River] decision and have no comment at this time,” the judge noted that, for a time, Tyson had “required their contract growers to submit litter usage reports and maintained that information on a nutrient management spreadsheet. The practice was discontinued because ‘it was an overwhelming task for the live production managers.’”
When Nutrient Management Plans are used, it’s possible to get a better sense of where chicken litter is being carried. This is key because of the environmental ripple effects that chicken litter poses.
In the Illinois River case, the judge noted that, “as late as the 1960s, [the Illinois River’s] waters were crystal clear. But that is no longer the case. The river is polluted with phosphorus, with adverse consequences that include low dissolved oxygen; abundant filamentous green algae; blue-green algae in Lake Tenkiller near the river’s terminus; greatly decreased transparency; and significant detrimental impacts on the numbers and species of fish.”
He went on to note that “a significant cause of the excess phosphorus in the waters of the IRW is the land application of litter from defendants’ poultry.”
Although Watkins applauds the court’s judgment, he notes that individuals in the Buffalo River watershed, which is not directly affected by the findings, are still concerned about that area’s lack of regulation and transparency — primarily when it comes to where the waste from the nutrient surplus zone will go after it’s removed from the area
“If there was a big algae bloom on some section of the river that was filled by a spring,” Watkins said, “and you notice that that spring is downstream from a large poultry installation and you’re getting big hits of phosphorus out of that spring or nitrogen — it’s an alert that somebody needs to connect the dots and see what’s going on there.”