Democrat Gazette

Watershed moratorium stalls in legislative committee because of lack of a motion second

November 14, 2024 at 7:56 p.m.

by Ainsley Platt

A motion to suspend procedure so members of the Arkansas Legislative Council's rules subcommittee could make a decision on changes to a Pollution Control and Ecology Commission rule making a prohibition on swine farms in the Buffalo River watershed permanent failed to receive a second, preventing the subcommittee from taking action on it this month.

The lack of a second also meant that a rule regarding liquid animal waste from the Department of Agriculture, which also contained language making the moratorium permanent, couldn't be considered by subcommittee members. That rule generated separate oppositions from environmental advocates after certain public notice requirements that were formerly required in state law were removed, despite their support for other parts of the rule relating to the swine farm moratorium.

The suspension of procedure was required because rules proposed to be considered by the subcommittee have to be submitted by a specific deadline in order to make it on the agenda. The Arkansas Democrat-Gazette previously reported that the request to suspend procedure from both departments came after two still-unnamed legislators asked department staff to make the request, after the deadline for November's meeting had passed.

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.

The hearing room was full at the start of the subcommittee meeting, with many audience members having travelled long distances in order to make comment on both rules.

Sen. Missy Irvin made the motion to suspend procedure, but no one seconded it.

Since the motion failed to get a second, no vote was taken on the rules themselves, which means they can be taken up at next month's rules subcommittee meeting.

With the failed motion, there was a brief debate between legislators over whether members of the public could give comment on something that was, technically, not being considered by the subcommittee.

Ultimately, some ended up making their comments, while others stated that they would make their planned statements at December's rule subcommittee meeting.

One of the people who reserved their comments for next month was Gordon Watkins, the president of the Buffalo River Watershed Alliance, who had previously been vocal both in his support of the permanent moratorium and in his opposition to the removal of certain public notice requirements from the liquid animal waste rule.

He said in an interview afterward that the lack of a motion gives his organization more time to prepare the comments it will give before the subcommittee.

"We knew coming in that anything could happen," Watkins said. "I had hoped that they would (take the vote) just to keep it rolling, but it was a surprise to us that it was even on this month's agenda. ... We were scrambling to get prepared, so this gives us a little more time to prepare our comments."

Watkins said that while it was "disappointing" that the proposed rules weren't considered despite the large number of people who drove to give public comments, he believed there might be even more who show up for December's meeting.

David Peterson, who is a former president of the Ozark Society, expressed surprise.

"I'm mystified by the whole process of this legislature," Peterson said. "I was surprised that the suspension of (procedure) was missing."

Peterson said that the result was that it was "less likely that we'll have a full discussion of the issue."

The failure of the motion is the latest in a decade long saga that started with the opening of the C&H Hog Farms within the Buffalo River watershed, unbenownst to the farm's neighbors due to what many said was insufficient public notice. That started a years-long effort to both improve public notice requirements and shut down the farm, which advocates said posed a massive environmental risk to the watershed and groundwater.

After the public backlash to the farm, state environmental regulators adopted a temporary moratorium on medium- and large swine farms in the watershed. That temporary moratorium had language mandating that the moratorium be made permanent, or removed from Regulation 6 after five years.

Years of back-and-forth between the Department of Environmental Quality, now called the Division of Environmental Quality, and the farm ended with a state buyout of the farm in 2019, but the moratorium faced scrutiny by legislators when the division attempted to make the moratorium for the watershed permanent in 2020. The permanent moratorium was ultimately rejected, but a loophole in the language of the temporary moratorium kept it on the books.

The division introduced a rule change this past summer to once again try to make the moratorium permanent, this time alongside other, unrelated changes to Regulation 6 as a whole that staff said were required to comply with federal environmental regulations.

Meanwhile, the Department of Agriculture was working on its own version of liquid animal waste rules, which fell under the division's authority until a 2023 law change shifted the responsibility for those permits to the agriculture department.

That law 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, who is a hog, dairy and chicken farmer and vice chair of the rules subcommittee.

The Division of Environmental Quality, when it was in charge of liquid animal waste permitting, required that local governments receive notice and that permit applications make reasonable efforts to inform landowners adjacent to an area where the permit would be in effect of the application. Under the Department of Agriculture's rule, public notice would only be required to be posted on its website.

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