Arkansas Democrat Gazette

Rule change to make hog farm ban in Buffalo River watershed permanent to get hearing Friday

October 21, 2024 at 5:36 p.m.

by Ainsley Platt

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.

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, 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."

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