Buffalo River Watershed Alliance
Arkansasonline
Judge cancels order to summon officials
Arkansas environmental regulators won't have to appear in court Wednesday as scheduled to argue why they shouldn't be held in contempt of a Newton County Circuit Court order.
Circuit Judge John Putman quashed his order for the Arkansas Department of Environmental Quality to "show cause" why it should not be held in contempt, stating that department Director Becky Keogh and Caleb Osborne, the associate director over the Office of Water Quality, were never served their court summons.
C&H Hog Farms is appealing an Arkansas Pollution Control and Ecology Commission decision that remanded the Environmental Quality Department's denial of a new permit for the farm back to the department.
Attorneys for C&H had asked Putman to order the department to show cause. They said the department knew about a stay that Putman had ordered on the commission's decision to remand the permit back to the department. The department was subsequently in contempt of court when it issued a second permit denial, the attorneys contended.
But C&H attorneys never served Keogh or Osborne with court summons or notice of court proceedings after Putman's order to show cause.
In his Wednesday order quashing the show-cause hearing, Putman said parties did not have adequate time to respond before next Wednesday's hearing. He wrote that attorneys could request another order "after the plaintiff determines and obtains the appropriate legal process regarding its motion to show cause."
Later that day, C&H attorneys filed affidavits of service that confirm the delivery of documents. In filings, C&H attorneys stated they would later serve Keogh and Osborne with court summons.
Critics: Arkansas Phosphorus Index faulty; it gauges fertilizer on fields but omits terrain factor, they say
by Emily Walkenhorst | January 6, 2019
The calculation used to determine how much fertilizer farmers can apply to their crops in Arkansas doesn't take into account the potential of the fertilizer leaching underground, meaning it doesn't adequately protect the state's waterways, critics say.
The Arkansas Phosphorus Index calculates the potential of phosphorous runoff during a rain. The index is largely used by farmers, but recently processing plants and municipal wastewater plants have been using it.
Where the Buffalo River is located, for example, the index doesn't take into account all of the ways phosphorus can get into waterways, critics say. The area is karst, which often features cracks, fissures and sinkholes that allow substances to trickle down and move underground.
But the variability of karst terrain means karst shouldn't be factored into the index, said Brian Haggard, director of the Arkansas Water Resources Center at the University of Arkansas, Fayetteville, College of Engineering.
The state's hog farms -- and neighboring fields where hog manure is used as fertilizer -- are often in karst areas in north and southwest Arkansas. More often than not, the soil on which the manure has been spread has phosphorous levels that are considered excessive for plant nutrition, according to an Arkansas Democrat-Gazettereview of the permits and soil analysis samples of about 100 Arkansas hog farms.
It's the raw soil samples, not the nutritional needs of crops, that pertain most to the index -- which is designed to address surface-runoff pollution.
The Arkansas Phosphorus Index assigns a phosphorous-runoff risk value to land upon which a farmer wants to spread animal waste. Manure can be applied only on land deemed to have a "low" or "medium" risk of runoff, according to the Arkansas Department of Environmental Quality.
The phosphorous index multiplies three things together: phosphorus source potential (based on soil tests and the phosphorous application rate), transport potential (how easily phosphorus might move, based on the slope of the land and other elements), and best management practices (such as ponds, fencing or buffers on the land).
Each of the three factors has its own factor that determines its value. Factors are assigned numeric values, even when they are not actual measurements, such as the values for how often an area of land floods (0 for "very rare," 0.2 for "rare," 0.5 for "occasional" and 2 for "frequent"). Soil samples help to recalculate the land's risk every year.
The index was put together by Andrew Sharpley, a professor in the Department of Crop, Soil and Environmental Sciences at the University of Arkansas, Fayetteville; Haggard; and others from the University of Arkansas System and employees of the Arkansas Natural Resources Commission and the U.S. Department of Agriculture.
Last fall, the Arkansas Department of Environmental Quality denied a new operating permit for C&H Hog Farms in Newton County in part because of concerns about karst, phosphorous levels and the impairment of the nearby Buffalo River.
The farm, located in the Buffalo River watershed, has become the focus of environmental groups that believe it is a threat to the national river. Phosphorus can contribute to algal growth in water.
Like many farms, C&H Hog Farms uses the manure its animals produce as fertilizer for its land. Often, farmers send the manure to other farmers who want to use the nutrient-rich material.
Farmers should factor in karst within devising their nutrient management plans, Haggard said. Such plans are required for poultry operations in 13 Northwest Arkansas counties (considered to have excessive nutrients) and hog farms. The plans can be more than 100 pages, and they describe how waste will be contained and disposed of.
Not every karst-susceptible area has karst, Haggard said. Farmers can look for visible signs of karst and determine what needs to be written into their plans, he said.
Manure cannot be applied within 50 feet of a hole, Sharpley said, as an example.
But karst areas, which have little topsoil, can often include cracks underground that don't appear on the surface, said Gordon Watkins, president of the Buffalo River Watershed Alliance. That means phosphorus could leach into the ground faster and end up falling through cracks and into waters, he said.
Watkins acknowledges that phosphorus is retained in soil better than are some other nutrients. But, he said, that "legacy phosphorus" can leach for decades underground or through surface runoff.
"Legacy phosphorus" has been cited as a continuing contributor of phosphorus in the Illinois River watershed, where land application of poultry litter is now limited.
Karst is formed when chemical weathering, such as acid rain, or natural dissolution breaks down limestone, dolostone marble or evaporite deposits -- types of geological formations, according to the Encyclopedia of Arkansas.
Karst terrain can have caves, springs, "disappearing streams" and sinkholes, among other features. "Disappearing streams" are waters that disappear from the surface, travel underground through fractures and show up at a surface level elsewhere.
Karst is widespread in the Ozark Plateaus. A portion of southwest Arkansas has limestone and several springs and caves, and the Boston Mountains region in north Arkansas has limestone and numerous caves and springs.
The Arkansas Geological Survey describes karst-susceptible land as running across north Arkansas, from Washington and Crawford counties in the west to Randolph and Lawrence counties in the east.
In comments submitted to the Arkansas Department of Environmental Quality on its new draft of impaired water bodies list, Jessie Green, executive director of the White River Waterkeeper, said the phosphorus index should account for subsurface leaching. It said the fact that it doesn't is "a considerable failing."
But the index was developed as a way to analyze surface runoff risks, not subsurface risks, Sharpley said.
"That is not what this is designed to do," he said.
C&H Hog Farms' permit application did not account for karst, which the Department of Environmental Quality decided was ultimately needed, among other things, in order to issue the permit.
The Department of Environmental Quality did not grant an interview request -- sought over the course of several weeks -- for this article.
In its denial of C&H's permit, the department noted that excess phosphorus not absorbed by crops is "vulnerable to removal by surface runoff or leaching." The statement of basis for permit denial also mentions that the phosphorus index "may still allow application of swine waste because of other factors."
After C&H's permit was denied, Watkins said the index is "only as good as what's factored into it."
The index should better account for local conditions, Sharpley said. He and others are updating the index, which was written in 2010, to factor in row-crop conditions of east Arkansas.
"That will probably look quite a bit different than the index for pastures, I would guess," Haggard said.
Metro on 01/06/2019
Judge orders Arkansas regulators to explain permit denial for hog farmby Emily Walkenhorst |
Arkansas environmental regulators must appear before a judge next month to argue why they should not be held in contempt of court for denying C&H Hog Farms a new operating permit, according to court records.
The Newton County Circuit Court order is the latest in C&H's two circuit court appeals, one commission appeal and one civil lawsuit regarding its permit denial this year.
C&H Hog Farms is near Mount Judea in Newton County, about a half mile from Big Creek, which is a tributary of the Buffalo National River.
The Arkansas Department of Environmental Quality, which denied the permit, is not a party in the appeals related to its permit denial. But Judge John Putman ordered department officials to appear in his court Jan. 9 to explain why they were not acting in contempt of court when they continued with the permitting process after Putman stayed a commission order to reopen the public comment period on the permit.
"C&H alleges, among other things, that on November 19, 2018, with knowledge of this court's October 17, 2018, order, ADEQ issued a permit decision regarding C&H's application for a Regulation No. 5 permit, which included a process to shut down C&H's operation," Putman wrote. "After examining C&H's motion and the exhibits attached to said motion, the court finds that the motion should be granted."
Putman stopped short of holding the department in contempt of court, instead ordering Department Director Becky Keogh and Associate Director in the Office of Water Quality Caleb Osborn, to appear Jan. 9 to "show cause" why they should not be held in contempt.
If found in contempt, the charge would be civil, not criminal, although both charges are punishable with jail time and fines, said Richard Mays, an attorney for intervening environmental groups.
Department spokesman Nate Olson said the matter is under review, and the agency could not comment.
After the stay, "any further action by ADEQ pending the appeal would be null and void, because ADEQ does not have jurisdiction to act after the notice of appeal," C&H's attorneys argued in their motion to order the department to show cause.
The lawsuit from which the order stems is C&H's appeal of the Arkansas Pollution Control and Ecology Commission's decision to remand the department's original permit denial back to the department for a draft denial and second round of public comments.
Because the department is not a party in the circuit court case, the order to show cause is "a very interesting issue," Mays said.
"ADEQ certainly has a relationship to the commission, but they are not the same," Mays said.
The commission is the department's appellate and rule-making body. People appeal department decisions to the commission, and people and the department petition the commission to change environmental regulations.
In August, the commission ordered the department to reissue its denial of C&H's permit as a draft decision open to public comment. The department had previously issued its denial as a final decision, reversing its proposed approval in 2017. The department received public comment on that proposal that spring.
C&H appealed the commission's order because it "remanded" but did not "reverse" the department's original permit denial. Putman issued the stay in October on the department's first permit denial and on the commission's decision to remand the permit issue.
In his order, Putman said the Newton County Circuit Court "obtained jurisdiction over C&H's application" when the farm appealed the commission's decision Sept. 6.
C&H's attorneys asked for the stay "to avoid potential confusion and preserve the status quo of C&H's operating authority pending completion of C&H's appeals to the Court and any other appellate courts to which this matter may be appealed."
The day after the department denied C&H's permit, Nov. 20, C&H's attorneys filed a motion to order the department to show cause why they should not be held in contempt. Attorneys attached documents that they said showed that the department knew about the stay order.
The Jan. 9 hearing is the only circuit court hearing scheduled among the three circuit court cases C&H has filed.
C&H also has appealed an Arkansas Pollution Control and Ecology Commission decision to uphold an order by the commission's administrative law judge denying motions made by C&H that argue that its original permit was indefinitely active until another type of permit was issued.
Putman is also overseeing that appeal.
C&H attorney Chuck Nestrud said Thursday that he believes the appeal has been fully briefed, but he requested that oral arguments in the case be added to the Jan. 9 court date.
A Jan. 4 preliminary hearing on C&H's appeal of its second permit denial is to be held via teleconference.
That appeal is before the Arkansas Pollution Control and Ecology Commission, which is the department's appellate body. An appeal of a commission decision would go to circuit court.
C&H's attorneys have requested a stay of the department's second permit denial and asked the commission Thursday to continue that hearing to a later date.
"We don't think that that appeal should proceed until the circuit court's appeals are resolved," Nestrud told the Arkansas Democrat-Gazette.
The Buffalo River Watershed Alliance, the Arkansas Canoe Club, the Ozark Society, Gordon Watkins, Marti Olesen, Alan Nye, Robert Cross and David Peterson -- all opponents of C&H's operating location in the Buffalo National River's watershed -- have filed a motion to intervene in the appeal. The parties have successfully intervened in the two circuit court appeals and successfully intervened in C&H's appeal of its first permit denial earlier this year.
C&H's third circuit court case is a lawsuit that says the department violated the Arkansas Freedom of Information Act when it did not provide records requested by C&H. The agency argued that the request was too broad.
The case has been moved from Newton County Circuit Court but has yet to be transferred in Pulaski County Circuit Court, where it was ordered to go Nov. 29, according to Nestrud and a Pulaski County Circuit Clerk records department employee.
Sunday on 12/30/2018
Just to delay process
It seems the hog factory farm's appeal of the denial of a permit that would allow C&H to spread 2.5 millions of gallons of untreated hog waste in the Buffalo River watershed is simply a maneuver to delay the entire process until the Arkansas Legislature convenes Jan. 14, 2019.
C&H and its industry allies apparently are hoping legislation will be introduced that will weaken the guidelines that led to the permit being twice denied. Factory livestock farmers seek weakened regulations that will allow for more factory farms. Such legislation is also designed to give industry farmers advantages over independent, small farmers.
Arkansans must call, write, and meet with their senators and representatives and urge them not to support any legislation that would undermine protecting the Buffalo National River watershed from hog factory farming.
DAVE KUHNE
Arkansas Times
Forty minutes and six seconds into my phone conversation with Gordon Watkins, president of the Buffalo River Watershed Alliance, his abiding reticence finally gave way. The low, steady baritone pitch of his voice lifted by a fraction, and an audible hint of a smile spread across his face. I'd asked him to name his favorite spot on the Buffalo River.
Watkins had plenty of spots to choose from; he's floated all the Buffalo you can float — in its entirety and in smaller stretches — hundreds of times. "In fact," he said, "if you include the Little Buffalo where I live," the number probably swells into quadruple digits. "We call it 'livin' behind the river.' We have to cross the river daily by a low water bridge, and it's frequent that it's too high to cross." Watkins' kids are grown now, but when they were young, he'd canoe them across that low water bridge to catch the school bus.
Watkins, who hails from Greenville, Miss., developed an eye for the Ozarks as a teenager, when the banality of his native "flatland, as far as the eye can see" left him wanting to explore topography with a little more flair. "It was about 1968 when I first found the Buffalo and first started floating it," Watkins recalled. "At that point, I was beginning to think about living in the woods, living in the country, building a house." Initially thinking he'd use his psychology degree (and his experience counseling troubled youth with Outward Bound) to pilot an intensive outdoor therapy program, Watkins and his wife, Susan, bought a patch of land in Newton County near Parthenon in 1973. That outdoor therapy program took a back seat, though, when the couple decided to start a family of their own — and when their garden outgrew its hobby parameters.
"We had one of the oldest certified organic farms in the state," he said, delivering blueberries twice a week to a then-small scale operation called Whole Foods. The Arkansas Farm Bureau named the Watkinses' Rivendell Farms as one of its Arkansas Farm Families of the Year in 1987. "We've grown vegetables, hogs, turkeys, the whole gamut," Watkins said. A few decades later, they've cut back the farming operation considerably, and opened up a rental cabin on the property for Buffalo-bound visitors. "I cut a little bit of hay," he said, "and I tell people kind of tongue-in-cheek I'm farming tourists these days."
Jokes aside, Watkins' longstanding connection to the soil of Newton County makes it difficult to paint him the way he and his fellow Buffalo River Watershed Alliance board members were painted so falsely by former gubernatorial candidate/right-wing rabble rouser/gun range owner Jan Morgan in a Feb. 1 Facebook video: as "elitist environmentalists from out of state," presumably ignorant of the ways in which farmers' hard work keeps the grocery shelves stocked. That video taps into a white-hot Newton County controversy over a national river and an adjacent hog farm, one that's sparked emotionally charged public hearings, cost loads in legal fees and divided once tight-knit rural communities.
It started in May 2012, when a construction permit was obtained for an operation to raise 6,500 hogs on Buffalo River tributary Big Creek in Mount Judea, about 6 miles from where Big Creek meets the Buffalo. The permit, Watkins said, was the first mistake. The National Park Service — responsible for protecting the Buffalo since 1972, when it was designated as the first national river — "had a gentlemen's agreement, if you will, with the state Department of Environmental Quality" that no swine facilities would be allowed in the watershed. "So they probably weren't paying as close attention as they should have. I know as an individual I wasn't paying enough attention to what the ADEQ was doing at that time. They were off my radar."
When the construction of the Buffalo-adjacent Concentrated Animal Feeding Operation did come to the attention of the National Park Service later that year, the NPS wrote a scathing letter to the Farm Services Agency, the organization guaranteeing a loan for C&H's construction and operation. A copy of that letter made its way to Watkins and alliance co-founder/Vice President Jack Stewart in early 2013.
"I remember it very clearly," Watkins said. "We sat down at the Low Gap Cafe and discussed 'what the heck is going on here, and how did this happen? And what can we do about it?' " They got their paperwork in order, and the alliance was formed in the spring of that year. As a nod to the conservation efforts by Neil Compton and others at the Ozark Society who'd saved the river from being dammed in the 1960s, a slogan was born: "Save the Buffalo River — Again." Seven board members, all of whom are unpaid, have been working since 2013 to do just that. Part of their work involves employing lawyers, a substantial expense for the BRWA, despite the fact that the alliance's attorneys are working "at about a third of their normal rates." Another part of the mission, Watkins said, involves educating people about the Buffalo River — what it is, why it's important, why the tourist dollars it generates are so vital to the local economy. "We don't think it's fair to risk the crown jewel of Arkansas," Watkins said. It's not only the chief economic engine in a poor county, he said, but "an icon. You look at every piece of tourism that the Department of Tourism puts out and most of them feature Hawksbill Crag or Roark Bluff at Steel Creek or other parts of the Buffalo."
The alliance also advocates for the relocation of C&H and seeks to make permanent the existing temporary moratorium on new CAFOs in the watershed. "Of all the places in Arkansas, why would the state decide to put this here?" Watkins asked. "We're not anti-farming. We're not even anti-CAFO. We're opposed to this one facility in this one particular location. That's what it boils down to."
The Regulation 6 program that allowed the ADEQ to first issue a permit C&H Hog Farm has expired. C&H subsequently applied for a Regulation 5 permit — the permit under which other Arkansas-based CAFOs operate — and was denied by ADEQ. That denial is on appeal. With an upcoming legislative session just around the corner, it's doubtful a tidy, swift resolution is in sight.
Perhaps worse, the two sides of the issue are being painted with the broad brush of political tribalism: as a battle between farmers vs. conservationists. But at the helm of the alliance is a man who's both.
Watkins doesn't blame the owners of C&H, but the slipshod government oversight that he says misled them. He does, however, express deep disappointment in the Arkansas Farm Bureau, the same organization that awarded him that Farm Family of the Year title in 1987. "They've taken this thing and couched it in terms of property rights and a right-to-farm issue, which it's not," Watkins said. "It's a unique, one-of-a-kind situation that has to do with its location, both next to the Buffalo National River and sitting on top of karst [porous limestone]. ... They're telling farmers all over the state that if they can shut this one facility down, you're next. No permit is safe. And we think that's probably disingenuous and misrepresents the issue, and does a disservice to farmers across the state."
"People need to understand," Watkins said, "that the Buffalo National River as a national park is not like Yosemite or Yellowstone or Glacier, which encompass tens of thousands of acres of land. The Buffalo comprises 11 percent of the watershed. It's like this thin blue ribbon that meanders through the bottom of the valley. Eighty-nine percent of the watershed that feeds it does not enjoy those same protections. So that makes it especially vulnerable to impacts from activities on those surrounding lands." And, when those "impacts" make up the largest source of nutrients and bacteria in the entire watershed — pardon the pun — shit can go downhill fast.
"We've got 6,500 hogs that produce an amount of waste equivalent to the town of Harrison," Watkins said. "It's untreated waste, and it's sprayed on fields alongside this little creek that flows directly into the Buffalo River a few miles downstream. And we're now seeing — in spite of alarm bells being rung that whole time — we're seeing degradation of the river. We're seeing algae blooms, we're seeing low dissolved oxygen, we're seeing nutrient levels that were not there before, all of which are indicators of contamination of the water."
After our conversation, Watkins said, he'd go down and clean his rental cabin for that night's round of guests. And, with the first killing frost in the forecast that night, he'd be doing a little winterizing and getting firewood to his tenants to enjoy.
And as for that favorite part of the Buffalo? The upper part, from Ponca to Steel Creek, down to Kyles. "The trails along that stretch are really spectacular," he said. "You've got those big overlooks over Roark Bluff," and "the open vistas that are kind of covered up by the foliage during the growing season are now open. ... It can be really beautiful in the wintertime. For 40 years, I've been canoeing the Buffalo year-round and sometimes those winter floats are the ones that stand out."
Find out more about the Buffalo River Watershed Alliance and donate at buffaloriveralliance.org.
Lawsuit targets USDA's waiver; it claims ‘factory farms’ given passby Nathan Owens | December 13, 2018
A group from Harrison is among the activists suing the U.S. Department of Agriculture over a 2016 exemption rule that allows "medium-sized" feedlots and poultry farms, which can hold tens of thousands of animals, to sidestep the risk analysis process required of "large" operations.
The rule, court documents show, exempts certain poultry, pork, beef and dairy operations that apply for taxpayer-subsidized loans or loan guarantees from the usual process of public notice, public comment and federal oversight and has allowed for the establishment of dozens of "factory farms."
At least 100 medium concentrated animal feeding operations were approved for Arkansas from 2016 to 2017, according to USDA records cited in the complaint. The complaint was filed in U.S. District Court for the District of Columbia on Dec. 5. The defendants include the USDA and its Farm Service Agency, Secretary of Agriculture Sonny Perdue and Administrator Richard Fordyce.
The plaintiffs -- eight U.S. agricultural and environmental advocacy groups -- allege that the Agriculture Department developed a rule "categorically excluding [Farm Service Agency] funding of medium-sized concentrated animal feeding operations from National Environmental Policy Act review."
Among the plaintiffs is the group White River Waterkeeper, a Harrison nonprofit that advocates for the northern Arkansas river and its watershed, informs the public of environmental issues and the effects of new feeding operations in the region, including the C&H hog farm in Newton County.
They argue the 2016 exemption for medium operations harms rural communities, affecting their land, water and air quality without federal regulation and oversight.
The exemption effectively eliminated environmental rules that safeguard rural communities for the benefit of large food companies, said Tara Heinzen, a staff attorney at Food and Water Watch, one of the listed plaintiffs.
Before 2016, the USDA's Farm Service Agency performed environmental analyses under an EPA act to assess the impact of government loans or loan guarantees on concentrated farm operations, before the loans or guarantees were approved. The farm agency would weigh the "negative externalities" of the operations on nearby communities and then notify neighbors, farmers and other interested parties of the planned facility or expansion and the risks involved, so they could raise concerns "before the federal government disbursed funds," the complaint said. Risk assessments were conducted if an operation held at least 50,000 chickens, 27,500 turkeys, 1,250 pigs, 500 cattle or 350 dairy cows.
Under the current rule, medium concentrated animal feeding operations are exempt from the rule-making procedure, fast-tracking them for approval of federal loans or loan guarantees. The plaintiffs claim the Agriculture Department is in violation of federal clean air and water acts by allowing the rule's exemption to stand.
Proponents argue the rule makes it easier for farmers to secure funding. Critics say the rule keeps residents in the dark until construction is underway. The plaintiffs contend that through the current rule the Farm Service Agency "now assumes these facilities have no environmental impact and exempts them entirely from analysis under [the National Environmental Policy Act]"
The difference between "large" and "medium" operations can be slim. According to government documents, medium operations can hold up to 124,999 chickens, 54,999 turkeys, 2,499 pigs, 999 cattle or 699 dairy cows. They are considered "large," and must undergo public scrutiny, if the operations exceed those limits by a single animal.
Under the Freedom of Information Act, the plaintiffs' attorneys requested USDA documents and found the medium operations that received loans through the 2016 rule exemption were clustered near processing plants. At least 100 were approved for Arkansas between Aug. 3, 2016 and December 2017 without undergoing the same processes required of "large" feeding operations, court records show. Specifically, the Farm Service Agency funded for the period six medium feeding operations in Benton County, nine in Washington County, seven in Madison County and three in Carroll County, the complaint said. Arkansas is one of the leading poultry producers in the nation with contract growers and processing plants clustered in the northwest corner of the state, where Simmons Foods, George's Inc. and Tyson Foods have headquarters.
Casey Dunigan, a resource conservationist for the Washington County Conservation District, a group that requires poultry farmers to create a waste-management plan for their operations, said the plaintiffs are likely trying to "put pressure on the [Farm Service Agency] to stop putting out loans."
Poultry loan guarantees funded through the Small Business Administration also have come under scrutiny this year. In a March report, the administration's inspector general viewed the business relationship between the contract grower and integrator as "affiliative," questioning whether poultry growers qualify for federal assistance.
Dunigan said the complaint's colorful definition of a traditional farm is wrong and misleading, but the rule's exemption likely has an influence in the number of medium feeding operations being approved. Farmers consider the necessary hurdles before deciding what operation they want to build or signing up for a loan, he said.
"But I'd rather have a bunch of mediums than large ones, personally."
Business on 12/13/2018
PRESS RELEASE
FOR IMMEDIATE RELEASE
10 December 2018
Contacts:
Jessie J. Green, 870.577.5071, jessie@whiteriverwaterkeeper.org
HARRISON - White River Waterkeeper (WRW) joined a coalition of eight groups representing family farmers, sustainable agriculture advocates and concerned citizens throughout the country in filing suit against the United States Department of Agriculture last week. The suit aims to stop a policy exempting industrial animal operations that receive federal loans from undergoing an environmental review or providing any notice of their planned operations to neighbors.
“Public comment opportunities provide a chance to review and give feedback on localized environmental and human health concerns that are often not considered by agency reviewers. Poor environmental review and insufficient public notice are how we ended up with a large hog CAFO in the Buffalo River watershed. We can all agree that the most appropriate time for environmental concerns to be raised is prior to CAFO installation, before loans are disbursed and before families risk their financial well-being to enter the low-reward corporate agriculture scheme,” said Jessie Green, WRW’s Director and Waterkeeper.
The USDA’s rule change, adopted in 2016 by its Farm Service Agency, grants exemptions from the usual process of notice, comment and oversight in cases where the government is providing taxpayer-subsidized loans to Concentrated Animal Feeding Operations (CAFOs) considered “medium-sized” by the USDA. Such facilities are authorized to hold nearly 125,000 chickens, 55,000 turkeys, 2,500 pigs, 1,000 beef cattle, or 700 dairy cows. Failing to review the financing for these facilities under the National Environmental Policy Act (NEPA), has helped cloak their planned operations in secrecy, preventing rural communities from obtaining information regarding the impact of these operations on local air and water quality. In so doing, the Administration promotes factory farms over family farms.
The lawsuit alleges that both the rulemaking process and the final rule violate NEPA and the Administrative Procedure Act by failing to provide adequate notice of the proposed rule change, and refusing to clarify why medium-sized CAFOs should be provided this special treatment and automatically exempt. Between the rule’s implementation in August 2016 and December 2017, the government allowed 40 such operations in four Arkansas counties alone with no public comment or environmental assessment. During the same time frame, eight such operations in Iowa, housing nearly 20,000 pigs and generating as much untreated sewage as a town of 200,000 residents, were also allowed to escape any assessment or comment period.
“CAFOs leave farmers and rural communities on the hook for many of industrial agriculture’s negative impacts and take wealth out of local economies. According to 2012 USDA poultry census data, contract farmers accounted for 48 percent of broiler farms but 96 percent of production. Although growers invest the most capital in the operation, and work long, laborious hours to raise the animals, their profit margins are small. When environmental impacts come to light, contract growers often aren't in the financial position to properly address concerns. Limiting environmental review and transparency on the front-end places farmers in a position to be blindsided by concerns after they are trapped with debt and unable to negotiate better contracts which would allow them to upgrade environmental controls. We don’t need more loopholes for corporations; we need a system that promotes independent farming and wealth for rural communities,” added Green.
“Responsible agricultural operations that are committed to being both good neighbors and good stewards of the communities in which they operate have nothing to fear from notice to the community and an assessment of their operations,” the coalition of groups in the lawsuit said. “This irresponsible change in the rules that have helped protect rural and small communities for decades is, instead, designed to protect polluters and undermine transparency. Small, family farms and their neighbors are disadvantaged while huge corporations are given a government green light to operate with impunity. That’s not only morally wrong; it’s clearly illegal, too. Though we represent a broad and diverse coalition of citizens and advocates from across the country, we are all alarmed at the impact of this change and share a common goal of ensuring USDA looks out for family farms and rural communities, and not just the interests of giant corporations.”
The groups bringing the suit are Animal Legal Defense Fund, Association of Irritated Residents (Cal.), Citizens Action Coalition (Ind.), Dakota Rural Action (S.D.), Food & Water Watch, Iowa Citizens for Community Improvement, the Institute for Agriculture and Trade Policy, and White River Waterkeeper (Ark.).*
###
Harrison Daily Times
By JAMES L. WHITE jamesw@harrisondaily.com
MOUNTAIN HOME — With the potential forced closing of C&H Hog Farm near Mt. Judea, Newton County Circuit Judge John Putman told parties in a lawsuit Tuesday that he would rule as soon as possible on a motion to dismiss the suit.
C&H had applied for renewal of its permit to operate a liquid animal waste management system for a concentrated animal feeding operation at Mt. Judea. Manure from the hogs is collected in ponds before being spread on approved pasture land.
The PCE remanded the denial back to ADEQ because there had been no public notice. In September, C&H appealed PCE’s decision that just remanded the permit back to ADEQ instead of reversing and remanding the decision for denial.
Judge Putman issued a stay of ADEQ Jan. 10 denial, saying his court gained jurisdiction when C&H appealed. The order said there could be no further action in the case until he issued further rulings.
In the meantime, ADEQ issued public notice of intent to deny the permit and held two public hearings, then issued another denial Nov. 19, ordering closure of the hog farm a month later.
C&H filed a motion to hold ADEQ in contempt of court for issuing that denial even though Putman had issued the stay in September.
The Tuesday hearing was scheduled to be heard in Mountain Home where Putman was already holding court because it was the only date upon which attorneys involved could agree.
PCE was represented by deputy attorneys general Dara Hall and Sarah Tacker.
Hall began arguments by saying that PCE protected C&H’s right to due process by remanding ADEQ’s decision back to the agency to follow state law by making public notice, then PCE closed its docket.
Hall said that after ADEQ followed orders to provide public notice, then accepted public comments and issued the Nov. 19 denial the Jan. 10 denial was moot.
Hall said the circuit court can only hear appeals of final decisions, but the decision hadn’t been finalized until Nov. 19. As such, the circuit court couldn’t provide any relief for C&H.
Judge Putman asked Hall about the decision to remand without reversing ADEQ’s decision. Hall said the ultimate consequence was the same and the court could only hear an appeal after C&H has exhausted all other administrative appeals of a final decision.
That would include an appeal to PCE of ADEQ’s November denial. PCE moved for dismissal of C&H’s current appeal.
The Buffalo River Watershed Alliance, Inc., Arkansas Canoe Club, Gordon Watkins and Marti Olesen filed a motion to intervene in the suit.
Little Rock lawyer Richard Mays, representing the watershed and canoe club, said the administrative law judge in the appeal to PCE of the Jan. 10 decision did not include reversal of ADEQ’s decision for fear that doing so would indicate the remand was done on the merits of the permit denial rather than just the procedure ADEQ failed to follow.
Mays told Putman that no one is opposed to the hog farm other than its location so near Big Creek, a tributary of the Buffalo National River. His clients and other environmentalists fear manure from the farm will eventually pollute the Buffalo.
C&H was represented by Little Rock lawyers Bill Waddell and Chuck Nestrud.
Waddell said the Dec. 19 closure date set by ADEQ was key to the decision. The deputy attorneys general were using arguments the PCE hadn’t even approved, he said.
Nestrud said PCE didn’t give ADEQ any instructions regarding the reprimand, so ADEQ was able to issue the Nov. 19 denial prior to the Tuesday hearing, which had been scheduled since late October, and give the PCE the argument that the Jan. 10 denial was moot.
Putman asked the lawyers who would be held in contempt of court should he rule on that motion. Waddell said that party would be ADEQ because it not only ignored the stay Putman had ordered in September, it also ordered the Dec. 19 closure date.
Hall also told Putman that PCE filed a new supplemental motion in the case Monday. Putman hadn’t seen that motion, nor the answer C&H filed later that same day.
Putman said he had hoped to rule on the motion to dismiss from the bench Tuesday, but the additional motions meant he would have to review them before making a ruling.
However, with the Dec. 19 closure date looming, Putman said he would make a ruling on the motion to dismiss as soon as possible.
Staff Report news@harrisondaily.com
JASPER — Newton County Circuit Judge John Putman on Friday denied the state Pollution Control and Ecology Commission’s (PCE) motion to dismiss C&H Hog Farm’s appeal of denial of its permit to operate and that stays issued in October are still in place.
C&H had applied for renewal of its permit to operate a liquid animal waste management system for a concentrated animal feeding operation at Mt. Judea near Big Creek, a tributary of the Buffalo Nation River.
In January, the Arkansas Department of Environmental Quality denied the permit. C&H appealed that decision to PCE because there had been no public notice of the denial as is required by law.
The Buffalo River Watershed Alliance, Inc., Arkansas Canoe Club, Gordon Watkins and Marti Olesen filed a motion to intervene in the suit and supported PCE’s motion to dismiss.
C&H contends PCE was wrong:
• By failing to reverse ADEQ’s Jan. 10 decision when it remanded the permit to ADEQ.
• By not including appropriate instructions to ensure the remand was conducted properly.
PCE moved to dismiss the appeal because:
• C&H didn’t state facts upon which relief can be granted.
• The circuit court lacks jurisdiction.
• PCE’s order to remand wasn’t a final order, or, in the alternative, that C&H can’t appeal a case it won.
• Closure of the PCE docket wasn’t tantamount to considering PCE’s order as final.
• No party is prejudiced by dismissing the appeal.
The intervenors support PCE’s motion to dismiss because:
• The court has no jurisdiction due to PCE order not being ripe for appeal.
• C&H’s statement of facts are actually a mixture of facts and legal theories.
Putman ruled Friday that the commission’s own administrative procedures say the commission’s vote to affirm the administrative law judge’s recommendation to remand “shall constitute final commission action for purposes of appeal.” Thus, PCE’s order is appealable.
Putman’s ruling states that C&H did not win the case before PCE because it did not prevail on the issues it appealed to circuit court, and that the hog farm did indeed state facts upon which relief can be granted.
Finally, Putman wrote that ADEQ’s Nov. 19 denial of the permit does not affect C&H’s appeal because his court gained jurisdiction over the matter when the hog farm filed the appeal and he issued a stay.
That order issues two stays, one on the ADEQ's January permit denial that would prompt the closure of C&H, and the other on PCE’s decision to send the permit application back to the department to be reopened under a new draft decision. Those stays allowed C&H to operate until final orders from the court.
Arkansas Democrat Gazette
[Excerpt]
FRENCH HILL: Gauntlet thrown
Committed to aiding environment by French Hill Special to the Democrat-Gazette
We agree on the fact that America's first national river, the Buffalo National River, is the ultimate icon of the Natural State. Protecting this watershed is vital for the ability of Arkansans and visitors to enjoy this beautiful free-flowing resource. As a paddler and hiker, I have enjoyed its peace and majesty for over 50 years. So naturally I object to the permitting of the large-scale hog farm in the Buffalo watershed. In my view, the ball was dropped in that permitting process by the state and federal governments. I was delighted to read recently that the Arkansas Department of Environmental Quality denied an operating permit for the hog farm. I hope an equitable solution can be found for both the landowners and the watershed.
As to the future, I am pleased to see Gov. Asa Hutchinson act to focus on comprehensive state, federal, and private efforts to consider the Buffalo River watershed as a whole. Know that on Sept. 27, 2018, Congressman Womack and I sent a letter to the National Park Service to gain understanding of what water quality challenges it faces across the entire watershed and understand what data it has or requires supporting policy direction. You can locate this letter on my website
And you're right, "Of all things in this state that should be nonpartisan, the Buffalo National River should top any list." I couldn't agree more.
As an avid outdoorsman and conservationist, I will always fight to protect our state and nation's prized natural resources for future generations to enjoy. And I hope that you don't "bite nails," but continue to advocate for common-sense environmental policies.
------------v------------
U.S. Rep. French Hill represents Arkansas' 2nd District.
Buffalo River Watershed Alliance is a non profit 501(c)(3) organization
Copyright @ 2019
Contact Us