Buffalo River Watershed Alliance
Democrat Gazette
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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Arkansas Advocate
Arkansas lawmakers deferred action on two proposed rules regarding large livestock farms from Thursday to next month.
The Arkansas Legislative Council’s Administrative Rules subcommittee heard public comment from several individuals who criticized a state Department of Agriculture rule that would limit public notice of new permit applications for livestock and poultry farms to the department’s website.
The department promulgated the rule as part of the enactment of Act 824 of 2023, which gave the agency regulatory authority over large livestock farms, often known as concentrated animal feeding operations (CAFOs). The Arkansas Department of Environmental Quality (ADEQ) previously held this authority.
Environmental advocates told the Arkansas Times in September that ADEQ’s transparency policy regarding livestock farming permits included notifying local news outlets, elected officials and school districts.
This level of transparency is the “minimum” a community deserves if a business seeks to start a CAFO nearby, said Allan Mueller, a wildlife biologist who spoke to the Rules subcommittee on behalf of the Arkansas Audubon Society.
Rules subcommittee members did not second a motion to suspend its rules, which was necessary in order to take up the proposed rule because the Agriculture Department submitted it two days after the subcommittee’s Oct. 15 agenda deadline.
Rep. DeAnn Vaught, R-Horatio, said after the meeting that she could not predict whether the lack of action on the rule would lead to any changes before the December meeting. Vaught is a Southwest Arkansas livestock farmer, the House vice chair of the Rules subcommittee and a sponsor of Act 824.
The subcommittee also did not vote on a rule from the Department of Energy and Environment that would place a moratorium on CAFOs in North Arkansas’ Buffalo River watershed, a move that environmental advocates have praised.
The energy department’s rule is a response to Act 46 of 2023, which exempted property owners’ associations from certain permit actions related to water pollution.
Brian Thompson, president of the conservation group The Ozark Society, pointed out to the Rules subcommittee that the energy and environment department’s rule requires applicants for CAFO permits to notify property owners adjacent to the proposed farm site, as well as city and county leaders and school district superintendents. He said the agriculture department’s rule should have the same criteria.
“Everyone deserves the respect of appropriate public notification,” Thompson said, mentioning recent public outcry from Franklin County residents about the state’s $2.95 million purchase of 815 acres to build a new prison.
Mueller noted that CAFOs often cause pollution, odors and excessive noise.
“The technical requirements prepared by the Department of Agriculture address many of these issues, but they do not create confidence that these regulations by themselves are enough to avoid damages to surrounding communities and property values,” Mueller said.
Residents of an area where a CAFO is proposed can “identify characteristics and issues that otherwise would not be considered in the application process,” he added, and communication between locals, businesses and the state can “result in an operation that meets the needs of the agricultural community and local interests.”
People who want to be aware of the existence or progress of CAFO applications would have to check the Agriculture Department’s website every day and instead should rely on the department to contact them directly, Mueller said.
The third voice in opposition to the rule was Bill Rector, former publisher of the Daily Record, a Little Rock law and business news outlet that publishes public notices.
Gordon Watkins, president of the Buffalo River Watershed Alliance, said he would save his comments for the subcommittee’s Dec. 19 meeting. Thompson also said he would be back next month.
Thompson said after the meeting that he hoped the lack of a vote on the Agriculture Department’s rule meant it would be amended.
Arkansas Times
State legislative committee pushes decision on Buffalo River hog farming rules to December
by Phillip Powell November 14, 2024
A state legislative committee made no decision Thursday on controversial regulations that would impact the future of hog farming in the Buffalo National River watershed, instead punting a possible decision as an agenda item for its next meeting in December.
One rule, submitted by the state Department of Agriculture, would not require Arkansas farmers to notify nearby residents, businesses or schools about new concentrated animal feeding operations, or CAFOs, a type of commercial operation where livestock is raised in confined spaces, resulting in animal waste byproducts that are harmful to the environment.
The second rule, proposed by the Arkansas Department of Environmental Quality, would permanently ban hog farming in the Buffalo River watershed. (There is currently a temporary moratorium for pig farms in the protected Buffalo National River area.)
The Administrative Rules Subcommittee of the Arkansas Legislative Council did not consider the pair of regulations because the rules were given to the committee late.
“For members of the audience that are here, we are going to let you come to speak because we are recognizing the time you invested in coming here even though we are not going to take action on it today,” Sen. Kim Hammer (R-Benton), chair of the committee, said of the proposed rules. “And you are welcome to come back next month as well when we will take action, and the reason it is not being considered today is because we would’ve had to have a suspension of the rules. The rules did not get to us in the required time in order to be placed on the agenda like all the other items.”
About a dozen representatives from organizations opposed to pig farming on the Buffalo River as well as members of the public attended the meeting to express their support for the permanent hog farming ban and opposition to the Department of Agriculture’s rule that would make the permitting process for commercial livestock operations less transparent.
Hog farming in the Buffalo River watershed has long been a hot button issue after the opening of an industrial pig farm there in 2013 caused widespread public outrage. In 2020, the state closed a deal to buy the farm’s land while also placing a temporary moratorium on swine operations in the watershed.
“I’m president of the Ozark Society and I represent about 1,000 members,” Brian Thompson said. “My comments are in regard to the removal of public notification language in this rule. Everyone deserves the respect of appropriate public notification. And regarding this rule, there were 670 public comments, about 500 of which expressed concerns around these issues.”
Representatives from the Audubon Delta and the Buffalo River Watershed Alliance also attended.
All in all, the groups have submitted hundreds of comments in favor of a moratorium on hog farms in the Buffalo River watershed, but highly critical of Department of Agriculture efforts to curtail public notice of new hog farms.
A new state law, passed in 2023, transferred regulatory authority of liquid animal waste disposal systems from ADEQ to the Department of Agriculture. Concentrated animal feeding operations, or CAFOs, use those liquid animal waste systems to dispose of copious amounts of waste from hogs or dairy cows, and that waste can pollute waterways with excessive nitrogen and phosphorous runoff.
Now the Department of Agriculture with their new regulatory authority is proposing that farmers wishing to permit new CAFOs would not have to notify nearby neighbors, schools, governments, and newspapers of the permit. The department would also impose a permanent moratorium on hog farms in the Buffalo River Watershed, something environmental groups have long desired to prevent waste pollution in the river.
The Arkansas Department of Environmental Quality followed the Department of Agriculture in proposing a moratorium on hog farms in the Buffalo River Watershed in October. But the ADEQ rule is not used to permit new CAFOs.
According to data from the Environmental Protection Agency, Arkansas has 776 concentrated animal feeding operations permitted in the state. All of those CAFOs were not permitted under a federal permitting system that the Arkansas Department of Environmental Quality administers in the state. Rather, those permits were provided to those farming operations through the Rule 5 regulations on liquid animal waste that the Department of Agriculture now has authority over.
Sen. Greg Leding (D-Fayetteville) told the Arkansas Times after Thursday’s meeting that the Arkansas Legislative Council could not remove any language from the proposed rules. Either the council would accept and approve the rule, or send it back to the agency.
Thompson, the president of The Ozark Society, said that in its current state, he hopes the legislature will reject the new Department of Agriculture rule at the December hearing.
Arkansas Farm Bureau, as opposed to the environmental groups, has taken a strong stance against a moratorium on hog farms in the Buffalo River Watershed. And they have been silent on the weakened public notice requirements proposed by the Department of Agriculture.
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Arkansas Democrat Gazette
November 3, 2024 at 8:00 a.m.
by Bob Robinson
Editor's Note: This article is the first in a series commemorating the 40th anniversary of the signing of federal legislation to create nine new federal wilderness areas in Arkansas. The series will focus on the history of the legislation, as well as highlight the natural qualities of each area.
On Oct. 19, 1984, President Ronald Reagan signed Public Law 98-508, guaranteeing the protection of 91,100 acres in Arkansas' Ozark and Ouachita National Forests. This was the largest share of wilderness land Congress had approved for any state east of the Rockies.
The purpose of the act was to designate certain national forest lands as components of the National Wilderness Preservation System to promote, perpetuate and preserve the wilderness character of the land. In addition, it would protect watersheds and wildlife habitats, preserve scenic/historic resources and promote scientific research. It also provides recreation, solitude, physical/mental challenges and inspiration for the benefit of all Americans to a greater extent than is possible in the absence of wilderness designation.
The areas included in the legislation were:
◼️ 7,568 acres of the Ouachita National Forest, titled "Black Fork Mountain Wilderness"
◼️ 6,310 acres of the Ouachita National Forest, titled "Dry Creek Wilderness"
◼️ 10,884 acres of the Ouachita National Forest, titled "Poteau Mountain Wilderness"
◼️ 10,105 acres of the Ouachita National Forest, titled "Flatside Wilderness"
◼️ 1,504 acres of the Ozark-Saint Francis National Forest, titled "Upper Buffalo Wilderness"
◼️ 15,177 acres of the Ozark-Saint Francis National Forest, titled "Hurricane Creek Wilderness"
◼️ 11,822 acres of the Ozark-Saint Francis National Forest, titled "Richland Creek Wilderness"
◼️ 10,777 acres of the Ozark-Saint Francis National Forest, titled "East Fork Wilderness"
◼️ 16,956 acres of the Ozark-Saint Francis National Forest, titled "Leatherwood Wilderness."
These nine areas joined Caney Creek Wilderness, the main section of the Upper Buffalo Wilderness and Big Lake Wilderness, which were already protected under other legislation.
Saving the stories
For the bill to reach Reagan's desk and be signed, Arkansas legislators had to deal with pressures from business interests who opposed it. U.S. Sens. Dale Bumpers and David Pryor, both D-Ark., along with U.S. Rep. Beryl Anthony, D-Ark., U.S. Rep. Ed Bethune, R-Ark., and Texas Republican Sen. John Tower, worked together in a bipartisan manner to advance the bill for the president's approval.
Stewart Noland, former president of the Ozark Society, says the unknown heroes and everyday citizens who toiled with the grunt work and grassroots effort required to garner both political and public support for the bill, also played vital roles in the legislation's passage.
In 2023, on the eve of the 40th anniversary of the passing of the act, Noland was concerned that their stories had never been told. He realized that some of the players involved in the effort were no longer alive and worried that further delays could result in their chapters being lost.
He approached his longtime friend Scott Lunsford, who worked at the David and Barbara Pryor Center for Arkansas Oral and Visual History in Fayetteville, about preserving this valuable history for future posterity. The Pryor Center acknowledged the importance of this history and agreed to work on the project. It was an ideal joint venture, combining the Pryor Center's audio and office resources with the Ozark Society's historical knowledge.
Noland and Tom McClure set out to record the stories of 31 key players involved in preserving Arkansas' wilderness areas. These recordings, along with documentation contributed by many people related to the program, will be stored at the University of Arkansas Libraries Special Collections and made available to the public at a later date.
A coalition is formed
The preservation of Arkansas' wilderness areas has deep roots. It can be traced to 1948 when Congress first began exploring the concept of developing a Federal wilderness system. American environmental activist Howard Zahniser began formulating the Wilderness Act in 1956. After more than 60 drafts and eight years of work, President Lyndon B. Johnson signed Zahniser's final version into law on Sept. 3, 1964.
Zahniser's poetic definition of a wilderness guided him through the process, stating, "A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain."
This was followed in 1967 by the U.S. Forest Service's review of areas suitable for wilderness designation titled "Roadless Area Review and Evaluation" or "RARE I." The study's recommendations were abandoned after courts ruled the agency had not sufficiently complied with the regulations of the National Environmental Policy Act. A second roadless inventory, RARE II, was initiated in 1977.
From 1977 to 1979, the Forest Service, with public comment, inventoried the nation's lands for areas possessing wilderness potential and then submitted their recommendations to Congress.
An organization called the Arkansas Conservation Coalition, which included representatives from the Sierra Club, Ozark Society, Arkansas Audubon Society, Arkansas Wildlife Federation and other environmentalists, was directly involved in surveying and categorizing Arkansas' national forests during the early stages of RARE II. ACC member Bill Coleman, manager for environmental affairs for then-Arkansas Power & Light Co. (now Entergy Arkansas Inc.), volunteered to lead groups of scientists, naturalists and other experienced environmentalists into Arkansas' forests to inventory and advocate for wilderness areas in both the Ouachita and Ozark National Forests. ACC dispatched 11 teams on foot to survey 400,000 acres in the two forests possessing "wilderness" designation potential.
The coalition submitted about 200 pages summarizing its fieldwork and recommendations to the Forest Service to be included in the RARE II study. It represented over 7,000 man-hours of work by 40 to 50 individuals.
With this enormous commitment by the ACC members, their disappointment was understandable when the Forest Service designated only four of the 25 areas that had been inventoried to be slated for "instant wilderness." These results reinforced ACC's claims that having the Forest Service conduct the RARE II study was like having a corporation audit itself.
The coalition realized early in the process that the path to preserving Arkansas' natural areas would be a rocky one.
The Path to Preservation
ACC was acutely aware of the opposition present in the private sector. Wilderness designation opponents had circulated information that rural Arkansas wilderness designation would close the land to hunting and access to cemeteries within the area. Leaflets were distributed, claiming bordering lands would be condemned and appended to the wilderness areas.
ACC knew it would require a full-court press to combat this misinformation. Their efforts included talking to politicians, writing letters, taking potential supporters on forest outings to witness the natural grandeur, developing convincing data, testifying at public hearings, writing newspaper articles and doing anything else they could to solicit sponsorship for legislation to protect wilderness areas.
ACC members Lissa Thompon and Ed White prepared an 11-minute slide program that many speakers showed at meetings across the state. It addressed issues of concern for locals and reassured them the bill would not block people from using the land and would protect it for their children and future generations. It proved very effective.
These ACC volunteers often faced heated opposition when traveling to town hall gatherings to speak on behalf of the wilderness.
In his recorded interview, Sierra Club member Tom McKinney recounted a "lively" encounter at a town hall meeting in one small community. He explained the benefits of wilderness areas and attempted to dispel what he said were falsehoods being circulated about resulting restrictions. His claims were not well received.
En route to his vehicle after the meeting, he was confronted by a guy who threatened him. McKinney punched the man and promptly proceeded to his truck. As he pulled out of the parking lot, one of the men put a bullet through his fender.
This experience was more of an exception than the rule for most gatherings. ACC member Tom McClure shared stories of community meetings where locals discovered they shared a common objective.
When McClure questioned groups about their goals for forests, many responded they wanted to preserve them so their children and future generations could enjoy the same outdoor activities they had as children. They were tired of the timber industry's clear-cut policy.
McClure explained these were also the objectives of the Wilderness Act. He added that by including an area in the bill, forest preservation would be protected by law.
The political process
While groups like the Forest Service and Arkansas Conservation Coalition may make recommendations for wilderness proposals, only Congress can officially designate wilderness areas.
Bethune was an early supporter of the Wilderness Act. He stepped forward in a big way, suggesting various avenues on how to present a plan for legislation. He contacted Bumpers, asking the state's senior senator to join him. Bumpers agreed.
By this time, the actions to promote the bill had advanced from the forests of Arkansas to the halls of Washington. As luck would have it, Coleman was transferred to the nation's capital for an internship. While there, he provided a place to stay for Arkansans traveling to Washington to testify before Congress.
Bumpers and Pryor co-sponsored the Arkansas Wilderness Bill in the Senate, while Bethune and Anthony introduced the bill in the House. As they say, the rest is history.
With the passage of the act, future generations may now echo Aldo Leopold's sentiment, "I am glad I shall never be young without wild country to be young in."
October 31, 2024 at 9:48 p.m. | Updated November 1, 2024 at 9:36 a.m.
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.
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."
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.
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