Buffalo River Watershed Alliance
Arkansas Times
ADEQ issues notice of final permit denial to C&H Hog Farm; appeal looms
Posted By David Ramsey on Tue, Nov 20, 2018 at 10:31 AM
PERMIT DENIED: Hog feeding operation near Buffalo River will likely appeal.
The latest in the fight over the 3,000-hog feeding operation near the Buffalo River watershed:
The Arkansas Department of Environmental Quality yesterday issued notice of its final decision in denying a permit to C&H Hog Farm. No surprise here, making official the proposed denial issued by state officials in October. The decision is sure to be appealed. For now, C&H will likely continue to operate, pending appeal, thanks to a recent reprieve from Newton County Circuit Court.
ADEQ denied the permit for disposal of liquid hog waste based upon its review of evidence of environmental risk — due to the underlying karst geology, which can allow waste to seep through and contaminate groundwater, as well as the impacts of land-applied waste washing into the nearby Big Creek, a tribute of the Buffalo River, and eventually into the Buffalo itself.
The Farm Bureau, which has tried to flex its considerable lobbying muscle to protect C&H, disputes this evidence. They'll presumably continue to be an active player as the fight drags on.
C&H has generated controversy since it was first awarded an ADEQ permit in 2012. Several years back I went to Newton County for a deep-dive report on C&H and its impact on the community.
The original permit that C&H was awarded was discontinued altogether by the state, but C&H continued to operate for years on an expired permit. Then came the bureaucratic maze: C&H had already been denied a different type of permit in January before applying for this new type of permit, which was officially denied yesterday. The game here is to bog down the regulatory system in enough paperwork and processes to continue to operate despite no longer having an approved permit to do so.
Next up is the appeal process, which will likely drag on for months more as the shit seeps in to the water.
The Arkansas Department of Environmental Quality has denied C&H Hog Farms a new operating permit.
The department issued its final ruling following a public comment period, citing water quality issues and insufficient geological investigations of the rough karst terrain on which the farm is located.
The decision means the farm must close, but the decision can be appealed.
The farmers appealed the department’s January denial of their permit, which a commission in August remanded back to the department for re-issue. The department issued a draft denial in September and the final denial Monday.
The farmers also appealed the commission’s decision to remand the permit back to the department. That case has not been settled, but a judge issued a stay on the remand in October.
C&H Hog Farms sits on Big Creek, about 6 miles from where it meets the Buffalo National River, and is permitted to house 6,503 hogs. The farm is the only federally classified medium or large hog farm in the area.
Conservation groups have opposed the operation of the hog farm within the river’s watershed, asserting that land application of hog manure on the rough karst terrain of the watershed poses a risk that the river and its tributaries can become more easily polluted.
Thank you for contacting me to express your concerns regarding the operation of a hog farm near the Buffalo National River. It is good to hear from you.
I strongly support the Buffalo National River and I enjoy visiting and floating the river with my family and friends. I support providing the resources the Park Service needs to protect the river and maintain the park as a beautiful destination enjoyed by countless Arkansans and citizens from across our country.
Also, I was pleased to be a leading supporter of federal funding for a water project that will protect the Buffalo River by providing the resources to use Bull Shoals Lake as an alternative water source for municipal and rural community water systems in the region, instead of forcing these communities to use water from Buffalo River tributaries.
We are working hard to make sure all procedures and processes are followed when project reviews occur. In the case of the farm you mentioned, the USDA Farm Service Agency facilitated a loan. When federal funding, such as an agricultural loan, is involved and multiple federal and state agencies are required to review a project for legal compliance, it is very important that the agencies work together to do their job in a thorough and timely manner. The public notification process is very important to make sure that impacted stakeholders have a voice. This particular matter is subject to litigation. As a member of the legislative branch, I do not interfere with ongoing judicial proceedings. As a general rule, the agencies should provide a fair and transparent process for farmers while promoting conservation and providing commonsense environmental protection. Please know that I will keep your thoughts in mind and will continue to support both the Buffalo River and our farmers.
Again, thank you for contacting me on this very important issue. Please be sure to sign up for our e-newsletter to stay informed on what we're doing on behalf of Arkansans. I look forward to your continued correspondence.
Sincerely,John Boozman U.S. Senator
Sincerely,
Eureka Springs Independent
November 14, 2018
Recently I attended yet another public hearing in the cafetorium of the Jasper High School in Newton County. This time it appears, at least for now, that the tide is turning. ADEQ denied C&H Hog Farms a new Reg. 5 permit to replace the Reg. 6 permit which enabled them to evade public notice and rush to get their facility built before anyone could question the placement along a major tributary to the Buffalo National River.
It seems that in their hurry, they failed to do some things that might have qualified them for the Reg. 5 permit. Waste lagoons were not properly constructed, as revealed in depositions now public. We already knew the environmental assessments were cursory and inadequate because a judge who reviewed them found them so.
The critical issue of the presence of karst, the geologic formation that creates lovely bluffs, springs and caves along the Buffalo, is the same stuff that makes our area vulnerable. What we do on the land impacts water quality everywhere, but in areas of karst, transmission into and through the ground can be almost as rapid as runoff, and far more insidious. Water running through crevices and crannies below the surface can’t be seen. The ground feels so solid that it’s easy to ignore evidence that it often acts more like a sieve.
Since C&H began growing hogs, they have spread 14 million gallons of liquid waste onto fields in the Buffalo watershed. Most of the initial fields already tested at above optimum before they began using them, and came with the recommendation that 0 additional phosphorus be applied, so it’s not surprising that the operators quickly needed more land to dispose of the waste. They call it fertilizer, and it is, until application exceeds the agronomic needs of the fields.
What happens when more is applied than the grasses can take up? It binds with the soil, and either trickles through the ground during rainfall (like a leak in your roof), or washes off into tributaries during heavier rain.
Due to an error in calculations, experts estimate that perhaps as much as 10 times more phosphorus was applied to the spray fields than could be used as fertilizer. That’s a lot of loose nutrients that have to go somewhere. Eventually they end up in the largest waterway, the Buffalo River.
It didn’t happen overnight. The first couple years saw little change. In 2016 the first areas of unusual algal blooms were noted. They were larger in 2017, and this year more than 70 miles of waterway filled will algae floating on the surface and wafting in the current below. Most is ugly but harmless, but some is bacterial and can produce toxins.
While two sides argued about a confined animal feeding operation (CAFO) in the watershed, the river was making it clear to all who looked that something was out of balance and getting worse.
Residents from around Newton County came to the public hearing to express their views, and some claimed there had always been algae in the river in late summer. Algal growth is a natural process, it’s true. But this year we saw it growing in the spring, and by mid-summer it was covering large areas below Carver and increasing all the way down river.
Data collected by Big Creek Research and Extension Team, our tax-funded research study, was indicating problems although team members kept saying they needed more data and appeared to avoid analyzing data they didn’t like. Scientists evaluated the raw data themselves and it revealed clear trends.
USGS monitoring, meanwhile, showed oxygen in Big Creek falling below standards for a healthy waterway, over several seasons, enough to be officially designated as impaired. E. coli counts exceeded safe levels for contact recreation along the same stretches of the Buffalo where dye tests had indicated a direct subsurface connection to the hills surrounding C&H and its spray fields.
If testing had been allowed on C&H property, would the results have been different? It’s unlikely, but the owners refused permission.
Many residents continued to contend there is no real proof that the hog CAFO was causing the problems. The representative of the Arkansas Pork Producers loudly proclaimed this to be the case, and that, further “something had shifted in Little Rock” that caused ADEQ to change their minds about issuing a new permit.
What changed was that the science began to back up what geologists, environmentalists and supporters of the river said all along; this sensitive area was exactly the worst place for such a facility to be sited. Six thousand hogs in one place, with tons of feed trucked in and tons of waste hitting the hillsides is putting the ecosystem out of balance. It can’t go on.
The Farm Bureau is fear mongering, telling farmers they will be next. But since when have “farmers” needed permits? Industries need permits to operate industrial facilities. The meat industry uses contract growers to create the façade of a “family farm” while environmental safeguards require that large amounts of sewage, whether from animals or humans, must be regulated to avoid impacting the environment. That is why C& H has to have a permit.
Cargill came into the region with the aim of taking one of our state’s more vulnerable areas and making it a foothold for many more hog CAFOs. Being an astute private conglomerate, they have seen rising public awareness of the toll massive hog operations are having on the resources and rural communities in other states. They sold out to JBS, a Brazilian multi-national corporation with a dismal track record of compliance.
When the concept of industrial scale animal production began, right here in Arkansas, farmers had to be re-educated to see animals as “widgets,” not living creatures deserving of consideration. It was especially hard for hog farmers, who know how intelligent pigs are and appreciate them.
As animals were recast as things, farmers were also remade, turned into contract growers in a system where they would own the farm and buildings, but not the animals they raised. From being independent producers they’ve been reduced to cogs in the industrial agri-machine now controlling most food production and distribution.
Farmers and environmentalists have a lot in common. Both groups recognize the value of clean water and healthy ecosystems.
Lin Wellford
NWAonline
Discharge rules get reaction Some see wastewater nutrient trading as premature
by Emily Walkenhorst November 13, 2018
Establishing a program to trade nitrogen and phosphorous credits among wastewater dischargers is premature without numbers stating what the limits are for those nutrients in Arkansas waters, commenters on a proposed state regulation said.
The complaint -- and many others -- is the same as six months ago, when people first had an opportunity to comment on an earlier draft of the same proposed regulation. Two dozen people or organizations submitted feedback the second time.
Four cities in Northwest Arkansas -- Bentonville, Fayetteville, Rogers and Springdale -- are petitioning environmental regulators to establish a program that allows entities with wastewater discharge permits to avoid exceeding their permit limits by trading with other entities for more wiggle room.
"Nutrient trading," as it's called, allows someone who is below his permit limits for phosphorus and nitrogen to trade the excess allowance permitted to someone else who is above his permit limits or concerned about being above them. Under the proposal, the trades must result in a net reduction of those nutrients being discharged or "loaded" into the water.
In Northwest Arkansas, discharge limits related to a nutrient crackdown in the Illinois River watershed have caused five wastewater treatment plants' permits to be placed on indefinite hold while the utilities find a way to comply. The utilities' permits remain active, despite expiring years ago, under Arkansas Department of Environmental Quality administrative continuances.
Phosphorous concentrations in the Illinois River remain higher than Oklahoma's numeric phosphorous standard for the river downstream.
The cities will respond to each comment and make any modifications they deem necessary before they proceed with the rest of the rule-making process, which requires legislative approval. Gov. Asa Hutchinson approved the first draft of the rule-making in January.
The cities amended their first draft to incorporate suggestions and address common concerns. Most of the concerns are repeats of previous comments or concerns about changes from the first draft to the second draft.
Numerous commenters contended that the new regulation was premature because Arkansas doesn't have numeric nutrient standards for its waters. Arkansas has narrative nutrient standards, which describe the ideal conditions of water bodies.
Arkansas Department of Environmental Quality officials have expressed an interest in establishing numeric standards and have begun evaluating regions of the state but have described the task as arduous.
Arkansas should establish a numeric nutrient baseline measurement where trades are proposed to occur, the Buffalo River Watershed Alliance wrote.
Not having numeric criteria, or even an implementation plan for the state's water anti-degradation policy, means the state can't ensure that a trade will result in a reduction of nutrient loading in a watershed, or protect and maintain high-quality waters, the White River Waterkeeper wrote.
"This lack of numeric nutrient criteria in Arkansas is a fundamental flaw in being able to track and measure the effectiveness of this proposed trading program," wrote Ellen Carpenter, a retired department water division chief.
The cities, and their attorney Allan Gates, have argued for less specificity in the regulation, which would encourage more trades to take place. In their draft response to the last round of comments, they contended that gathering, measuring, establishing and documenting in-stream water quality conditions would be a Herculean effort and "trade prohibitive."
Under the proposed regulation, trades will be conducted using numeric nutrient limits in discharge permits, which may be based on narrative nutrient standards in Arkansas waters or another state's numeric nutrient standards downstream of an Arkansas water body.
The regulation calls those "water quality-based permit limits."
The Beaver Water District disagrees with referring to most total phosphorous permit limits as "water-quality based" because of the lack of numeric criteria, forcing most limits to be "derived from some sort of Best Professional Judgment/technology-related analysis," the district's comment reads.
Commenters also expressed concern about who would inspect a trade.
The Arkansas Department of Environmental Quality director would approve a trade, but who would be responsible for ensuring that the trade is working as planned is unclear, commenters said. Several said the department should have the authority to monitor them if it had the authority to approve the trades and write them into water discharge permits.
The Arkansas Farm Bureau argued that the Arkansas Natural Resources Commission was the better agency of the two to conduct inspections that involved "non-point" sources of discharge, meaning the discharge doesn't come through pipes that empty directly into a water body. Commission staffers already have expertise with non-point sources, which are often farms and ranches, wrote John Bailey, Farm Bureau director of environmental and regulatory affairs.
As a part of their everyday work, the commission handles non-point source best management practices, and the department regulates point sources, Bailey wrote. Bailey asked that language in the first draft giving the commission the responsibility to investigate non-point source trades be re-inserted.
"The proposed language would eliminate regulatory confusion," Bailey wrote.
Bailey asked the Arkansas Pollution Control and Ecology Commission in September to re-insert the language into the second draft of the regulation before it approved the new rule-making process, but the commission declined. Some commissioners expressed concern that two agencies having investigative authority could cause confusion.
The Arkansas Natural Resources Commission submitted a comment in October supporting the old language and stating that staffers were willing and able to inspect trades involving non-point sources.
Other comments conveyed worries that the proposed regulation doesn't account for geographic differences across the state or include sufficiently specific directions on evaluating trades or how the approval of a trade may be appealed.
The Natural Resources Commission and other commenters also argued that any revision of the proposed regulation must go back to the statewide Nutrient Trading Advisory Panel for approval before initiating a rule-making process on it, citing Act 335 of 2015, which authorized the creation of a nutrient trading program.
Metro on 11/13/2018
By Mike Masterson
Posted: November 6, 2018 at 4:30 a.m
Those who appreciate swine factories mislocated in karst-riddled national river watersheds should applaud attorneys for C&H Hog Farms for dotting every legal "i" to keep that facility operating despite an expired permit, allowing it to continue spreading raw swine waste along a major tributary of our already impaired river.
You may recall our state's Department of Environmental Quality (cough) in January denied the factory's request for a new permit under different regulatory requirements after the agency dropped its initial regulatory designation issued in 2012.
No need to squeal, though, since the massive facility with 6,500 swine has continued to function as usual on its lapsed permit while lawyers chip away at that denial.
Ongoing legal maneuvers in my view look like this: After five years the Department of Environmental Quality finally imposed stringent environmental protective requirements in refusing C&H's new application for a Regulation 5 permit, which the department should have insisted upon before ever granting the original Regulation 6 anything-goes general permit in this geologically fragile location.
Meanwhile, knowledgeable folks I know and trust say C&H continues to do everything possible to confuse the legal status and delay. They initially filed the appeal of the permit denial in Newton County Circuit Court. The denial was issued by Administrative Law Judge Charles Moulton's Order No. 1 and the Arkansas Pollution Control and Ecology Commission, which determined coverage of C&H's 2012 Regulation 6 General Permit terminated when the agency chose to deny C&H's Regulation 5 application.
Basically, C&H had argued that denying its Regulation 5 permit didn't matter. The factory was entitled, as a matter of right, to a Regulation 6 permit even though the state had dropped that regulation altogether, citing a non-applicable federal regulation to support their claim. Moulton and the commission weren't buying that. So, of course, C&H appealed. That legal matter remains unresolved.
A month after the commission ruled in the Regulation 6 decision, it was presented with Judge Moulton's recommended decision. That ruling remanded the denial of a Regulation 5 permit to the Department of Environmental Quality because the department failed to issue a notice of intent to deny the application and seek public comment, as C&H argued was required. In other words, insisting upon initial public comment on both the approval and following the denial.
Although factory attorneys got what they wanted, C&H appealed nonetheless because the case was "remanded" instead of being "reversed and remanded." Seems C&H wanted the word "reversed" in the order, without articulating why. The reason, I suspect, is C&H wanted to argue if the decision to deny the permit had also been "reversed," the state could not again deny C&H the permit.
A second matter in the porker appeal marathon remains active. At an Oct. 17 hearing, 14th District Circuit Judge John Putman granted a continued stay pending another hearing on other issues not discussed in the first hearing. It is possible he will find that he doesn't have jurisdiction to hear the appeal for a variety of reasons raised by the commission and others. Should Putman rule in the Department of Environmental Quality's favor, that would eliminate the second case altogether, but leave the first one to be decided.
Still haven't read enough? C&H also filed a Freedom of Information Act case in Newton County against the Department of Environmental Quality for allegedly failing to provide documents pursuant to their FOIA request. At question is whether the agency was justified in telling C&H its request was too broad to be answered.
If nothing else, C&H can stall in the courts long enough for the Legislature to reconvene in January where it might be counted on to somehow bail C&H out of its denied permit.
Still expanding
A nicer aspect for me of living in the Ozarks is nearby Silver Dollar City and Johnny Morris' Wonders of Wildlife National Museum and Aquarium in Springfield, Mo., only 40 minutes up U.S. 65 from the Arkansas border.
As if USA Today hadn't already named this astonishing place the nation's No. 1 new attraction for 2018, the master innovator of all things conservation is adding what promises to be an inspirational exhibit of "Nature's Best Photography." That's thanks to a $15 million donation from FedEx founder Fred Smith in tribute to his late daughter, Windland Smith Rice, a truly accomplished nature photographer.
Windland, who died in 2005, was known for her conservation efforts and skills behind a camera lens when it came to capturing wondrous moments in nature. The exhibit will be moved from the walls of the Smithsonian in Washington, D.C., to Wonders of Wildlife in 2019.
If this addition is anything like Morris has previously achieved from his Bass Pro Shops that began in a small rear section of his father's Brown Derby Liquor Store to his spectacular Top of the Rock golf course and attraction, I expect it too will be completed under his creative and watchful eye.
------------v------------
Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.
Editorial on 11/06/2018
By NWA Democrat-Gazette
Posted: November 2, 2018 at 1 a.m.
What’s the point?
Until dependable science declares it impossible for a hog farm to pollute the Buffalo River, the state’s stance should favor the river.
The easy answer is to save the Buffalo River at all costs.
Whether that answer gets to the heart of the matter depends entirely on what question is being asked.
The Buffalo River, at least since C&H Hog Farms was permitted near one of its tributaries, has become Arkansas' version of global warming: Whether a massive hog farm operation can co-exist near the nation's first national river is to be answered in science, but people on opposite sides of the discussion can't agree on the fundamental point of whether the river needs to be saved .
Before anyone's head explodes, there is no one suggesting that the Buffalo River should be harmed. Nobody we've heard suggests polluting its flowing waters is a desired accomplishment. There is no one campaigning for the right to lay waste the land and waters visionary Arkansans and others managed to preserve with a federal designation in 1972.
But there are huge difference of opinion about what it takes -- and about what government should do -- to protect the river and its surroundings.
Whether it's the Buffalo River or Beaver Lake, it's possible to find people still ruffled by what they view as the encroachment of the federal government. Don't forget that any formation of a federal lake or nationally protected river requires the taking of property -- with compensation -- from those whose ownership stands in the way of the governmental purpose. Arkansas remains a strong property rights state, and it should be. Generally speaking, property ownership must convey strong rights of use, or what's the point?
The fate of the Buffalo River, however, can hardly be considered "generally speaking." It is a very specific instance of a natural resource -- the natural resource -- deserving of environmental protection, no less deserving than the Grand Canyon or Yosemite. Letting harm come to the Buffalo River is no less an affront to Arkansans than, say, suggesting the mascot of the University of Arkansas be changed out of respect for hog producers.
The Arkansas Hillbillies? The Arkansas Travelers (we think that's taken)? The Arkansas Mockingbirds? No, no and no. The people of Arkansas wouldn't stand for it. Nor should they stand for any equivocation on the subject of the Buffalo River.
That no doubt was on the minds of people who raised the subject the other day in one of candidate/Gov. Asa Hutchinson's town hall meetings. This one was in Bentonville, where plenty in the audience wanted to hear more about state action involving the 6,500-hog operation in the Buffalo River's watershed. The hog farm received its first permit to operate in 2012, but the secrecy in which that happened has drawn severe criticism.
In 2015, the state put a five-year ban on new medium or large hog operations within the river's watershed, a move that gave people concerned about pollution some breathing room. But C&H has continued to operate and has asked for a new permit. It's future is tied up in legal wrangling involving the application process and how the state has handled it.
Critics and backers of the hog farm believe they have science on their sides. Findings of pollutants and the development of algae growth in the waters closest to the farm raise serious questions, but both sides end up questioning the others' science.
Hutchinson provided no real comfort in his town hall meeting. He, and any governor, has to walk that line between protecting the river and appreciating property rights, a major issue in the farming culture of rural Arkansas. No reasonable person wants to do harm to agriculture in Arkansas either. There's a lot of farmland in Arkansas, you know.
But there's only one Buffalo River, and Arkansas needs to get its house in order when it comes to protecting it. In our minds, the benefit of the doubt goes to the river.
At a minimum, that means taking the necessary steps to ensure harmful agricultural practices are steered clear of its watershed. But look at that: we let ourselves off the hook by including the word "harmful," right? What is harmful? If C&H isn't harmful, what to do?
Science is where the answer must be found, but protecting the river until that science provides clear answers is a necessity.
Commentary on 11/02/2018
By Doug Thompson
BENTONVILLE -- Gov. Asa Hutchinson received little objection in principle to his plan to reorganize executive departments but heard specific concerns about whether the environment, workforce education and health care would be fully protected during a town hall meeting Tuesday.
The governor's plan to consolidate 42 state agencies into 15 will require legislative approval to fully implement. If re-elected, the governor would put that plan before the legislators when they convene in January. Tuesday's 5:30 p.m. meeting at Northwest Arkansas Community College was Hutchinson's second such public forum to discuss his proposal that day. His previous one was in Fort Smith.
"I've been in town halls all over Arkansas and the civility we have is a model for our nation," Hutchinson told the crowd at the end of Tuesday night's event.
Concerns about merging environmental agencies into a consolidated Department of Energy and Environment drew questions about whether environmental agencies such as the current Department of Environmental Quality could maintain independence.
Some of the 30 or so attendees also wanted specific answers on the state's decision to not renew the permit for a 6,503-hog operation in the Buffalo National River's watershed. Those who attended the town hall such as Ellen Corley of Newton County wanted to know if a moratorium on any permits for such large, concentrated hog farms in the river's watershed could be made permanent.
Hutchinson isn't sure he can legally impose a moratorium lasting beyond his own term as governor, he replied to Corley. The governor said he expects C&H Hog Farms, which received its first permit to operate in 2013, to take the state's refusal to renew to court. Asked if the state might buy out the farm, Hutchinson said if the decision against renewing the permit stands he wouldn't be surprised if the owners of the farm attempted to make a claim for compensation from the state.
Hutchinson was director of the federal Drug Enforcement Administration in 2001 when picked to help reorganize that agency and others into the Department of Homeland Security. He said that experience will be helpful in setting up the state organization with no added personnel and no added costs to taxpayers.
Besides the environment, town hall attendees including former state Rep. Debbie Hobbs of Rogers expressed concern about putting career education into one Department of Education along with public schools and higher education. The same concern was expressed by others for plans to put the pre-kindergarten program, the Arkansas Better Chance Program, in the same department. Hutchinson assured the audience the change would improve coordination with other branches of the education system and not lead to those specialties being sacrificed.
NW News on 10/31/2018
No words minced
Malcolm Cleaveland of Fayetteville holds bachelor's and master's degrees in forestry from Clemson University, and a Ph.D in geosciences from the University of Arizona, with a concentration in watershed management. He's spent his academic career teaching in the environmental sciences, and is an emeritus professor and associate of the members of the UA's Geosciences Department who are closely involved with watershed management professionals.
Cleaveland wrote recently to offer his scientifically informed and unabashed opinion about C&H Hog Farms, with some 6,500 swine, being misplaced in the watershed of our Buffalo National River. I'll share portions of Cleaveland's comments edited for space.
"The decision to put a CAFO in the Buffalo watershed on karst terrain was criminal, quite literally. The original plan did not call for impermeable liners for the waste ponds, but specified that there would be a certain amount of leakage from the holding ponds. Spraying waste on a few fields is inadequate. It guarantees continuing pollution of groundwater. So this CAFO has been polluting the watershed from day one. How do you explain the decision to allow that? Perhaps it was a product of corruption?
"It will take a long time for the pollution already introduced into the groundwater to clear, even if the pollution were stopped today. But it is continuing. What is the first maxim of policymaking? 'When you are in a hole stop digging.' Wastes should be trucked out of the watershed, beginning immediately, and the CAFO should be shut down. That would require the state to make the owners whole, but since it was the state that blundered in permitting the operation in the first place, the state should do the right thing. The continuing losses from impaired recreation in the national river when the [National Park Service] has to shut down access to the river because of contaminant loads will cost the state far more than getting rid of this CAFO.
"I urge the [Department of Environmental Quality] to contact the attorney general to start an investigation of the way the permitting process was conducted. I strongly suspect that there was collusion between private interests, [agency] personnel and federal employees to sneak the initial permit in under the radar."
Editorial on 10/23/2018
By Emily Walkenhorst
Posted: October 19, 2018 at 4:30 a.m.
A circuit judge has paused a state commission's order that had reopened a permit application process for a large-scale hog farm within the Buffalo River watershed.
Newton County Circuit Judge John Putman's order means environmental regulators can't take action on the application for the time being, an attorney for the hog farm said.
C&H Hog Farms, which is permitted to house up to 6,503 hogs on Big Creek, had requested the stay after first petitioning the commission to reopen the permit application. The commission granted the request, but C&H then appealed that decision to Newton County Circuit Court, arguing that the commission did not completely support everything C&H had asked for in the petition.
An attorney for intervening environmental groups called C&H's actions a tactic to delay the process until the Arkansas Legislature or someone else can help the owners keep their farm open.
The appeal and a motion from the state to dismiss the appeal are pending in court.
A spokesman for the Arkansas Department of Environmental Quality, which had issued a draft decision denying the permit application, said the department was not a party to the case and noted that the public comment period on the draft decision has been extended to 4:30 p.m. Wednesday.
The Arkansas Pollution Control and Ecology Commission ruled Aug. 24 that the Department of Environmental Quality erred in issuing a final decision denying C&H Hog Farms' new operating permit, rather than issuing a preliminary decision.
The ruling required environmental regulators to issue a tentative denial of the permit Sept. 17, and the department has been accepting public comments on the proposal before issuing a final decision.
Putman ordered the stay Wednesday, about a month and a half after C&H first requested it. C&H asked for the stay Sept. 6 and appealed the commission's decision because it did not reverse the department's permit denial issued in January.
In February, the commission ordered a stay on the department's denial, allowing C&H to continue operating under its expired permit. On Wednesday, Putman also ordered that stay to continue.
Chuck Nestrud, one of C&H's attorneys, said Putman's decision means the commission's order has "effectively not been issued."
Otherwise, Nestrud said, it doesn't mean much. Stays are common when an issue is in two courts, he said. In this case, the permit was being discussed in circuit court and was subject to a commission order in another legal jurisdiction, he said. "I don't know that there's any legal significance to what's going on," he said.
Richard Mays, an attorney for intervenors opposed to C&H, said the stay represents another delay in resolving the permit issue. C&H had been the ones to ask the commission to reopen the matter and send the permit back to the department in the first place, he said.
"They got 99 percent of what they wanted," Mays said.
The farm's location in rocky karst terrain means it doesn't meet the state's technical requirements for a hog farm site, he said.
"It's an unsuitable location for a hog farm, so they're trying their best to obfuscate and delay and hope that somebody will come to their rescue," Mays said.
The order issues two stays: One on the department's January permit denial that would prompt the closure of C&H; and one on the commission's decision to send the permit application back to the department to be reopened under a new draft decision.
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 argued in their request for a stay that one was needed "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 C&H farmers are concerned that the department "will not seriously engage in the regular application process," which would include an opportunity for the department to decide whether modifications proposed by the farmers would be adequate before the farmers spend money making the modifications, the stay request reads.
In September, Arkansas Attorney General Leslie Rutledge's office, on behalf of the commission, contended that the commission's review process is complete, ending the stay that the commission had approved in February to allow C&H to keep operating.
Further, the attorney general's office argued, C&H received "the very relief" it had asked for twice.
"It is hard to conceive of any rationale for their current request to prevent ADEQ from complying with the law and doing the very thing that the Appellant asserted was required of ADEQ under the law," the attorney general's office wrote.
C&H will get a chance to address the merits of the permit denial under the new public comment period, which may raise different issues than the first public comment period on the farm's permit application did, the attorney general's filing reads.
Additionally, the department is not a party to the appeal and can't be bound by the circuit court's judgment, the filing says.
The department denied C&H's permit application in January after first giving it preliminary approval the previous year. Public comments were accepted then under the premise that the department planned to issue the permit.
In January, the department changed course and issued a final permit denial, citing a lack of a geological investigation to determine whether the hog farm's site was appropriate and a lack of an emergency action plan.
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