Buffalo River Watershed Alliance
Panel rejects banning hog farms on BuffaloLawmakers cite fears of future effects
by Joseph Flaherty
A panel of Arkansas lawmakers on Wednesday rejected proposed rules that would permanently ban medium- and large-scale hog farms from the Buffalo River watershed, dealing a setback to conservationists who have pushed for the measure.
Members of the Legislative Council's Administrative Rules Subcommittee voted not to approve the proposed revisions to Rules Five and Six presented to lawmakers by the Arkansas Division of Environmental Quality.
Lawmakers expressed concerns that the moratorium would create what Sen. Terry Rice, R-Waldron, called "a chilling effect" on agriculture in Arkansas, and raised the idea that similar measures could be enacted to encompass other watersheds within the state.
"It's not that we don't want the clean water. It's just the outcome of this is going to be detrimental to the next generation," Rice said. "And they're already under such a strain right now, you're going to have some young farmers throw up their hands and go do something else."
From his perspective, Rice said, there is concern among members of the public about a lack of due process with regard to the permanent moratorium.
In her opening remarks before lawmakers, made by videoconference, Becky Keogh, the Department of Energy and Environment secretary, stressed that the proposed permanent ban maintains protections for the Buffalo River and allows current farming opportunities to continue.
Conservationists in Arkansas fought for years to close C&H Hog Farms, an operation near the Buffalo River, over fears of possible water contamination there. The hog farm was finally shuttered in January.
C&H Hog Farms first obtained a permit under the administration of former Gov. Mike Beebe to house up to 6,503 hogs on Big Creek, a tributary of the Buffalo River.
Environmental advocates said the farming operation posed a threat to water quality in the Buffalo River watershed because of hog feces applied to fields as manure and additional hog waste held in lagoons.
A popular tourist destination and natural heritage site for Arkansas, 135 miles of the Buffalo River became a national park when Congress designated the waterway as the nation's first "national river" in 1972.
In 2014, the Arkansas Pollution Control and Ecology Commission placed a temporary ban on new medium- and large-scale hog farms within the watershed after an outcry from environmentalists because of C&H Hog Farms. The temporary moratorium was extended repeatedly, including a five-year extension granted in 2015.
C&H Hog Farms closed in January after the state under Gov. Asa Hutchinson negotiated a multimillion-dollar buyout deal last year to obtain the hog farm's land as a conservation easement.
The proposed permanent moratorium had the backing of Hutchinson, who said he was directing Keogh and environmental regulators to make the moratorium permanent when he announced the buyout deal with C&H Hog Farms last summer.
"The permanent moratorium for large and medium sized confined animal feeding operations in the Buffalo River Watershed is designed to protect for generations to come one of our most important national resources, " Hutchinson said Wednesday in an emailed statement to the Arkansas Democrat-Gazette.
"The rule presented by the Pollution, Control & Ecology Commission was adopted after public comment and multiple hearings and reviews," the statement continued. "It is my hope that the General Assembly will reconsider its initial decision and approve the rule."
During Wednesday's meeting, Sen. Missy Irvin, R-Mountain View, highlighted what she described as a lack of infrastructure at the Buffalo River, such as poorly maintained, unpaved roads for the booming tourism. She said the state is "reaping the consequences."
Although Irvin acknowledged the hog farm's permit never should never have been granted, she said there is other work to be done to fix the situation at the Buffalo National River.
"This is not the problem," she said.
"If I believed in my heart that this was the mitigating factor, then I would absolutely vote for this, but I don't believe that because I've experienced it, I've lived it, I know it, and I see what's happening," she continued.
In some ways, the decision on whether to make the moratorium permanent is about the future of the watershed instead of any existing hog farm. There are no medium- or large-scale hog farms with permits to operate in the watershed at the moment, a fact Shane Khoury, chief counsel for the Department of Energy and Environment, explained to legislators.
The moratorium would prohibit confined animal-feeding operations with 750 or more swine weighing 55 pounds or more, or operations with 3,000 or more swine weighing less than 55 pounds.
Environmental advocates with the Buffalo River Watershed Alliance and the Ozark Society had pushed for the permanent ban.
"I have to say, I was really disappointed that that committee can't see how the Buffalo River is unique in this state," said Gordon Watkins, president of the Buffalo River Watershed Alliance, in an interview Wednesday afternoon after the meeting.
Lawmakers want to argue the "slippery slope," Watkins said. "'What river is going to be next? Pretty soon it's going to be every river in the state.' And that's just not the case."
The Arkansas Farm Bureau has consistently opposed the permanent moratorium, often with objections similar to what legislators expressed Wednesday and with an eye on the potential broad impact on agriculture around the state.
"Although a lot of the conversation was on C&H Hog [Farms], it really wasn't about C&H, it was about this moratorium in the watershed," Jeff Pitchford, director of state affairs for the Farm Bureau, said in an interview Wednesday after lawmakers voted.
"Our concern from our members and farmers across the state is, 'Well then, which watershed is next?'" Pitchford said.
When asked about the extent of the Farm Bureau's outreach to legislators urging them to vote no, Pitchford said members reached out, but noted that subcommittee members seemed to have made up their minds.
Lawmakers "agreed with our viewpoint, and really some common sense on what this would mean for agriculture across the state," Pitchford said. "The need for a moratorium in the Buffalo River is just not there, and I think you saw that with today's committee meeting."
In a sign that lawmakers were uncomfortable with the permanent ban on hog farms, members of the House and Senate Public Health, Welfare and Labor committees declined to review the measures comprising the ban during meetings last week. The Pollution Control and Ecology Commission had approved the permanent ban during a May 28 meeting.
While Wednesday's decision is a blow to conservationists, there are limited avenues whereby the permanent ban could gain legislative approval.
According to Marty Garrity, director of the Bureau of Legislative Research, the Legislative Council could vote to overturn the recommendation of the subcommittee. The full Legislative Council is scheduled to meet Friday, and lawmakers could adopt recommendations from the Rules Subcommittee, including the recommendation to deny the permanent ban.
Another question is whether lawmakers will be confronted with a decision on the same proposed hog-farm moratorium again in the near future.
During Wednesday's meeting, officials from the Department of Energy and Environment acknowledged that if the permanent moratorium is not approved, the moratorium may have to go through the rule-making process again in the fall because of the parameters of the temporary five-year ban.
When the Pollution Control and Ecology Commission in 2015 enacted the five-year moratorium, at the end of that period, the director of the Environmental Quality Department was required to either move to make the moratorium permanent or lift it by September 2020.
Keogh said Wednesday that her intent was to leave the moratorium in place, not delete it.
"We don't enjoy the opportunity to bring it back in September," Keogh told lawmakers. "If it's required, I will do that."
In a nod to lawmakers' concerns, Keogh said she understands rule-making can have unintended consequences.
Nevertheless, regulators are trying "to strike that balance and keep it very targeted to Arkansas as a result of this particularly exceptional watershed and river that we are fortunate to have in Arkansas, but also obligated to protect," Keogh said.
Watkins said advocates want the moratorium memorialized in regulations so that as years go by and administrations change, the Buffalo River will continue to be protected.
"They thought in 1972 that the Buffalo River was protected and that it was a done deal, and we turned around and all of a sudden we got a hog farm in the backyard," Watkins said.
Information for this article was contributed by Michael R. Wickline of the Arkansas Democrat-Gazette.
by Joseph Flaherty | June 14, 2020 at 1:00 a.m.
A joint gathering of the state's House and Senate Interim Public Health, Welfare and Labor committees passed on reviewing a ban on medium- and large-scale hog farms in the Buffalo River watershed during a Monday-Tuesday meeting.
Without discussion, legislators approved motions from Reps. John Payton, R-Wilburn, and Mary Bentley, R-Perryville, to skip review of revisions to the rules that comprise the moratorium.
The co-chairman of the joint committee, Rep. Jack Ladyman, R-Jonesboro, said in an interview Friday that he understood the "do not review" option to be legislators' tacit disapproval of the Buffalo River hog farm moratorium.
The moratorium, which has the support of Gov. Asa Hutchinson, as well as conservation groups, now moves to the Administrative Rules Subcommittee of the Arkansas Legislative Council. The Arkansas Farm Bureau opposes the moratorium.
Despite the "do not review" vote, the Rules Subcommittee can still review the measure, which is on the agenda for its Wednesday meeting, said Michael McAlister, the deputy chief counsel for the state's Department of Energy and Environment.
The moratorium is the product of years of wrangling by conservationists to close the C&H Hog Farms on Big Creek, a tributary of the Buffalo River. The hog farm, which obtained a permit to operate in the watershed with a maximum capacity of 6,500 hogs, closed in January as a result of a buyout deal with the state.
In his announcement of the buyout deal last summer, Hutchinson endorsed a permanent moratorium on confined animal feeding operations in the watershed and directed the Arkansas Division of Environment Quality to carry out the rule-making process.
The Arkansas Pollution Control and Ecology Commission approved the hog farm ban May 28.
Ladyman said he could not predict what the "do not review" vote in the committee last week augurs for the future or if Legislative Council will even take up the moratorium.
"In that group, there seemed to be a lot of people that did not agree with making the moratorium permanent," Ladyman said of the joint meeting. "That's really all I can say."
Hog-farm ban moves into lap of legislators
by Joseph Flaherty |
Efforts to make permanent a moratorium on medium- and large-scale hog farms in the Buffalo River watershed advanced Thursday with the approval of the state's environmental regulatory commission, but the measure still must clear the Arkansas General Assembly.
The next hurdle is a hearing in a joint committee meeting scheduled for June 8.
The proposed ban on medium- and large-scale animal feeding operations is the result of a protracted battle by conservationists to close a hog farm operating since 2012 on Big Creek, a tributary of the Buffalo River.
C&H Hog Farms -- the only federally classified medium or large hog farm operating in the watershed, with a permit to house up to 6,503 hogs -- was closed in January after a buyout deal negotiated by Gov. Asa Hutchinson.
Last year, Hutchinson voiced support for making the moratorium on hog farms permanent. And while the proposal easily cleared the Pollution Control and Ecology Commission last week, it's unclear whether lawmakers will be as receptive.
"It's a very emotional issue for a lot of people, both sides," said Rep. Jack Ladyman, R-Jonesboro, chairman of the House Public Health, Welfare and Labor Committee.
A joint meeting of the House and Senate Public Health, Welfare and Labor committees is now set to discuss the proposal. The committees were supposed to review the issue this month, but it was pulled from the agenda before the May 4 meeting.
If approved, the ban will receive consideration from the Rules Committee and Legislative Council.
During two committee meetings held near the river in northern Arkansas, Ladyman recalled, he heard from conservationists and people in the recreational industry who support the ban. On the opposite side were farmers and other locals concerned about excessive regulation.
Ladyman said Thursday that he has not made up his mind how he will vote. He is waiting to hear any new information brought up at the coming meeting, he said.
"I'm not sure where this is going to go," Ladyman said. "I know there are a lot of members of the committee that have talked to me that are opposed to it for a number of reasons."
On Thursday, with little discussion, the pollution commission approved revisions to Rules Five and Six, which compose the ban on confined animal operations in the watershed.
Nearly everyone on the commission voted yes. Commissioner Delia Haak recused herself during the vote on Rule Five, and Commissioner Robert Reynolds recused himself for the vote on Rule Six.
The pollution commission originally imposed a moratorium on the issuance of new permits for medium and large hog farms in April 2014, with repeated extensions.
When he announced the buyout deal with C&H Hog Farms last summer, Hutchinson said the moratorium should become permanent and delegated the rule-making process to the Arkansas Division of Environmental Quality and Director Becky Keogh.
The ban would prohibit animal feeding operations with 750 or more swine weighing 55 pounds or more, or operations with 3,000 or more swine weighing less than 55 pounds.
The Arkansas Farm Bureau has consistently opposed the moratorium, pitting it against the governor as well as environmental groups such as the Buffalo River Watershed Alliance and the Ozark Society.
In a letter of opposition to state environmental regulators in January, the Farm Bureau argued that scientific evidence has not demonstrated harm to the Buffalo River from C&H Hog Farms and that the moratorium denies landowners in the watershed the right to farm.
Jeff Pitchford, the bureau's director of state affairs, public affairs and government relations, said that while the organization will "continue to answer questions of legislators," bureau officials have not met with lawmakers in advance of the June 8 hearing.
Lawmakers know their position on the issue, Pitchford said Thursday.
"I don't think there's anything new," he said.
When asked if the bureau intends to file a lawsuit if the ban receives final approval, Farm Bureau director of environmental and regulatory affairs John Bailey said he is unaware of any plans. However, he acknowledged a legal challenge is "a possibility" if farmers believe the action infringes on their rights.
"I think that everything would be looked at," Bailey said.
Gordon Watkins, president of the Buffalo River alliance, said he hopes legislators defer to the technical expertise of the members of the pollution commission. He suggested that lawmakers are unlikely to "outright deny" the rulemaking process behind the moratorium.
"I am hopeful, but like I say, every time they try to predict what the Legislature's going to do, we get surprised, so I'm hesitant to make a prediction," Watkins said.
SundayMonday on 05/31/2020
State groups weigh effects of water ruleU.S. agencies to roll back wetland, stream regulations
by Joseph Flaherty |
Conservationists in Arkansas are looking at the Trump administration's new definition of federally protected waterways to predict how the regulatory rollback will affect the state's wetlands and groundwater.
The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers last month published a rewrite of Barack Obama-era federal regulations under the Clean Water Act.
Farming and industry groups welcome the repeal of the EPA's current, broader definition of waterways protected under the Clean Water Act. The change has been one of President Donald Trump's priorities since taking office in 2017.
The new regulations, which will take effect June 22, replace the 2015 rule defining federally protected waterways, known as the "Waters of the United States," with the Trump administration's definition, the so-called "Navigable Waters Protection Rule."
The new, narrower definition removes federal protections for groundwater, ephemeral streams that only flow in response to precipitation, and wetlands that are not directly adjacent to a federally protected waterway.
Environmental groups including the Charlottesville, Va.-based Southern Environmental Law Center and the Natural Resources Defense Council have filed suit in federal court to block the new rule.
The primary effect in Arkansas may be a reduction in the acres of protected wetlands subject to a Clean Water Act permitting program, according to Walter Wright, an environmental lawyer at the Little Rock firm Mitchell, Williams, Selig, Gates and Woodyard.
Developers or construction crews that want to deposit dredged or fill material into a wetland must first receive approval from the Corps of Engineers under the Clean Water Act's Section 404 permitting program. Under the Trump administration's new rule, the number of wetlands that require such prior approval could be greatly reduced.
"From some Arkansans' standpoint, I think there's going to be concern that you're going to have areas developed that should've gone through permitting," Wright said. "On the other hand, you're going to have a set of people that believe that those are not the type of features that should have to go through permitting."
"So depending on your view, it's going to have a significant effect either way," Wright added.
Arkansas could see more rapid development taking place near wetlands where there is an economic incentive for growth, Wright said, noting legal uncertainty over the long-term status of the Trump administration's rule change, which the courts might strike down.
"They favor this much more narrow definition, and therefore I think there's going to be interest and pressure in taking advantage of this definition," he said.
PRAISE FOR NEW RULE
An internal slideshow prepared by the EPA and the Army Corps of Engineers in 2017, which was obtained by E&E News, estimated that as much as 51% of the nation's wetlands and 18% of ephemeral streams would no longer receive federal protection under the new rule.
Industry and agricultural groups opposed the Obama-era rule. The president of the Arkansas Farm Bureau praised the Trump administration last September when the administration announced the rollback.
"No regulation is perfect, and no rule can accommodate every concern, but the 2015 rule was especially egregious," then-Arkansas Farm Bureau President Randy Veach said in a statement at the time. "We are relieved to put it behind us."
John Bailey, the Farm Bureau's director of environmental and regulatory affairs, said the new rule "provides clear and concise rules for farmers."
"Under the new rule Farmers are now able to look out over [their] own land and determine what is waters of the US without hiring costly consultants or engineers to do the work. In addition, we believe the new rules closely resemble what law makers had intended when the Clean Water Act was created back in 1972," Bailey said in an emailed statement Friday.
The 2015 rule was only in place in 22 states and was blocked in 28 others, including Arkansas, because of court rulings. Arkansas Attorney General Leslie Rutledge joined other states in challenging the Obama-era water rule and applauded its demise under the new administration.
"President Trump listened to our concerns and has kept his promise to replace the Obama-era definition of 'waters of the United States' and has given the power back to Arkansans to determine how best to protect our environment and promote economic growth," Rutledge said in a statement in January, after the Navigable Waters Protection Rule was finalized.
In an interview with The Washington Post last year, EPA Administrator Andrew Wheeler said the Obama-era regulations resulted in a "patchwork across the country."
"We need to have a uniform regulatory approach," Wheeler told the Post.
Nicole Hardiman, the executive director of the Cave Springs-based Illinois River Watershed Partnership, said one concern from her organization is the new rule's deregulation of groundwater. There are often connections between groundwater and surface-water quality, Hardiman said. Businesses and individuals around the state rely on groundwater for drinking or to irrigate crops.
Additionally, deregulating streams that only flow because of precipitation "will encompass a lot of headwaters," Hardiman said, not just in the Illinois River watershed but across Arkansas.
"Any water body that flows only due to precipitation is still ultimately collected in a regulated waterway, for the most part," Hardiman said. For example, pollution deposited in these rain-fed headwaters could eventually end up in the Illinois River, she said.
The EPA's own Science Advisory Board has raised similar concerns in a review of the agency's new water rule. The board is made of up independent scientists, many of them appointed by the Trump administration.
In commentary submitted to Wheeler on Feb. 27, the advisory board chairman said the new rule "decreases protection for our Nation's waters and does not provide a scientific basis" to support its consistency with the objectives of the Clean Water Act.
In particular, the board criticized the rule's exclusion of groundwater and nonadjacent wetlands from federally protected bodies of water. If the government includes spring-fed creeks as protected waterways, there is "no scientific justification" for excluding connected groundwater, board Chairman Michael Honeycutt wrote.
Contamination of groundwater may lead to contamination of connected surface water, Honeycutt added, and shallow groundwater can also connect wetlands that only occasionally flow into larger bodies of water.
Regardless of the definition of a federally protected waterway, Hardiman said that in Arkansas, many state regulatory agencies don't have the capacity -- either financially or in terms of human capital -- to be able to address either definition and enforce the Clean Water Act through monitoring and regulatory action.
She acknowledged that oversight can be burdensome.
"But the key is: Are changes to the Clean Water Act and the Clean Water Rule made in the spirit of the making the process more efficient, or is it made in the spirit of undermining the intent of the law?" Hardiman said.
When asked which one is the case with the administration's water rule, Hardiman paused.
"Perhaps both," she said.
Ross Noland, an attorney in Little Rock who specializes in environmental law, said that, assuming the rule goes into effect as planned, Arkansas could see individuals bulldozing smaller streams on or bordering private property that are not connected to a navigable waterway. Likewise, wetlands that do not share a surface connection with a larger body of water might get filled in, Noland said.
Mountain streams in the Ozark and Ouachita mountains "will probably be the ones that are most at risk," Noland said in an interview.
State environmental regulators like the Arkansas Division of Environmental Quality, which issues permits governing pollutant discharges to water in lieu of the EPA enforcing the regulations directly, will have to decide if they will require a permit for discharges to smaller wetlands as a way to fill the gap created by the federal rollback, Noland said.
Gordon Watkins, the president of the Buffalo River Watershed Alliance, said the organization is less involved with advocacy regarding the federal rule change than with protecting the Buffalo National River locally.
But like the Illinois River Watershed Partnership, Watkins said Buffalo River advocates are concerned about potential pollution to groundwater and about contaminants moving through groundwater to emerge in springs. The issue came up during his organization's lengthy battle against the operators of a hog farm located near the Buffalo River.
Watkins described a sense of unease over the weakening of the Clean Water Act regulations, calling it "a bad omen for other water-related issues that might come up in the future."
"Just in general terms, it's a negative move that could come back to have impact on the Buffalo River," Watkins said.
Metro on 05/11/2020
by Bill Bowden | May 5, 2020
Visitors will soon be floating the Buffalo National River and hiking trails in the park.
Beginning May 15, the national park will resume day-use-only access to the river and all trails within the park, except for Lost Valley Trail, according to a news release.
The national park in north Arkansas has been closed since April 2 because of covid-19.
All established campgrounds in the park will remain closed for now, along with gravel bar and backcountry camping within park boundaries, according to the news release.
The park’s headquarters in Harrison will remain closed, as will the visitor centers and contact stations at Tyler Bend, Steel Creek and Buffalo Point.
Buffalo River panel told of $5M in federal funding to aid water quality
by Joseph Flaherty | April 30, 2020 at 3:25 a.m.
"Just because of the coronavirus and its impact across the board on putting a lot of things on hold, we just wanted to reassure everybody that we would continue to move forward with the efforts," Ward said.
Meeting by way of a conference call, officials on the committee discussed the potential for improvements to unpaved roads and wastewater systems near the Buffalo River.
Hutchinson created the committee in September after a drawn-out fight between conservationists and the owners of a hog farm in the watershed. C&H Hog Farms ultimately closed in January in a buyout deal with the state.
Ward described two recent federal grants related to improving the watershed that have been announced since the Buffalo River committee's last meeting in February.
In late February, federal agencies said they will work to improve water quality in Northwest Arkansas and southeast Oklahoma using $2.37 million in funding to the Ozark-Ouachita region during fiscal year 2020.
The planned work relating to fishing, tourism and wildfire mitigation will take place in six regional watersheds as part of the U.S. Department of Agriculture's Joint Chiefs' Landscape Restoration Partnership.
On April 16, the USDA announced that the Buffalo River Watershed Enhancement Project, led by the department's Natural Resources Conservation Service and the Nature Conservancy, will receive close to $2.7 million.
The project aims to collaborate with landowners in the watershed on conservation practices to improve water quality.
Ward called them "two very positive announcements" and emphasized that the federal programs are voluntary for landowners.
"Nothing's being forced on anybody," he said.
Brent Clark, an official with the USDA's Natural Resources Conservation Service, said Buffalo River communities in Searcy and Newton counties will have "exciting" opportunities on the horizon because of the funding. Information on how to sign up and how funding will be distributed is expected shortly, Clark said.
Other officials described where their work stands regarding unpaved roads and wastewater in the Buffalo River watershed.
Tony Ramick, an Agriculture Department division manager for nonpoint source management and unpaved road programs, said he was in the Buffalo River watershed Wednesday meeting with officials to view unpaved road sites in Searcy and Newton counties.
Ramick said they are exploring cost estimates, which the hope can be presented to the committee in the coming weeks.
Unpaved roads can contribute to reduced water quality because of sediment runoff, as well as airborne dust in rural communities, according to the Agriculture Department.
Debby Dickson, program fiscal manager at the Agriculture Department's Natural Resources Division, told the committee that they expect to receive funding applications from two communities in the watershed related to wastewater improvement.
She said the state already has received a funding application from Marble Falls and she expects to receive another by the end of the week from Jasper.
Dickson added there is ongoing discussion about a septic tank remediation pilot program that might be available in the watershed as well.
Some 1 million to 2 million people visit the Buffalo National River annually, but for now the river is closed for recreational purposes because of the coronavirus pandemic.
Caleb Osborne, chief of staff at the state Department of Parks, Heritage and Tourism, told committee members that the department has been "kind of overwhelmed" because of the coronavirus outbreak, but he said the virus has "reiterated just how important tourism is to the state and how important it is to our communities."
The National Park Service closed the river to all visitors except residential and through traffic on April 2 because of the outbreak. The park was closed one day after Hutchinson expressed concern about out-of-state visitors going to the scenic waterway from areas where the coronavirus is more widespread.
During Wednesday's meeting, Becky Keogh, the secretary of the state Department of Energy and Environment, said the department is considering U.S. Department of Energy opportunities or other federal funds that could support farmers with the deployment of solar energy or similar low-cost options.
However, a potential grant request has not been finalized, Keogh said.
She said Arkansas' federal partners are interested in the Buffalo River efforts happening at the state level.
"They like the leadership the state's taken," Keogh said.
Federal officials are trying to defer their regulatory authority and "let the state work through these solutions, because they're more effective generally anyway," she added.
Metro on 04/30/2020
BY JOHN KRUZEL - 04/23/20
The Supreme Court on Thursday sided with environmentalists by giving a broad reading to the types of water-borne pollution covered by the Clean Water Act.
In a 6-3 decision, the justices held that a permit is required for either a direct discharge of pollutants into federally regulated rivers and oceans or its “functional equivalent.”
“Suppose, for example, that a sewage treatment plant discharges polluted water into the ground where it mixes with groundwater, which, in turn, flows into a navigable river, or perhaps the ocean,” Justice Stephen Breyer wrote for the majority."
“Must the plant’s owner seek an EPA permit before emitting the pollutant?” he continued, referring to the Environmental Protection Agency. “We conclude that [a permit is required] if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”
At issue in the case was whether Maui County in Hawaii violated the Clean Water Act, the landmark 1972 environmental law, by injecting wastewater underground without a permit that then seeped into the Pacific Ocean.
In siding with environmental groups, Breyer was joined by his fellow liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, as well as more conservative Justice Brett Kavanaugh and Chief Justice John Roberts.
The decision returns the case, County of Maui, Hawaii v. Hawaii Wildlife Fund, to the 9th Circuit Court of Appeals to apply the new “functional equivalent” test.
David Henkin, an attorney with Earthjustice who argued the case on behalf of environmental groups, celebrated the win.
“This decision is a huge victory for clean water,” he said in a statement. “The Supreme Court has rejected the Trump administration’s effort to blow a big hole in the Clean Water Act’s protections for rivers, lakes, and oceans.”
Justice Clarence Thomas wrote a dissent that was joined by Justice Neil Gorsuch, and Justice Samuel Alito wrote a separate dissenting opinion that accused the majority of going beyond the text of the Clean Water Act.
"If the Court is going to devise its own legal rules, instead of interpreting those enacted by Congress, it might at least adopt rules that can be applied with a modicum of consistency,” Alito wrote. “Here, however, the Court makes up a rule that provides no clear guidance and invites arbitrary and inconsistent application.”
Michael Kimberly, an attorney at McDermott Will & Emery who co-authored an amicus brief in support of the Maui County, criticized the majority opinion as setting an “amorphous” new environmental standard.
“Not only is the decision vague, but it leaves countless responsible landowners potentially liable for discharges from ‘point sources’ to ‘navigable waters’ that aren’t actually anything of the sort,” he said.
The case arose in the spring of 2012, when four Hawaii environmental groups sued Maui County to stop a municipal water treatment plant from pouring millions of gallons of wastewater each day into wells running hundreds of feet deep, where the treated sewage combined with groundwater.
A study showed some of the wastewater later surfaced at popular beach areas, and the environmental groups said pollutants contained in the discharge had interfered with nearby coral reef and triggered invasive algae to bloom. They argued the county was operating in this way without a federal permit, in violation of the Clean Water Act.
The 9th Circuit Court of Appeals eventually sided with the environmental groups, prompting an appeal to the Supreme Court.
By Caitlin Sinett |
Posted: Tue 3:05 PM, Apr 14, 2020 |
Updated: Tue 4:48 PM, Apr 14, 2020
BUFFALO NATIONAL RIVER, Ark. -- With its 95,000 acres of land, 100 miles of trails, and a 135-mile river, the Buffalo National River seems like the perfect place to avoid people.
"It is public land that's here for everybody," said Cassie Branstetter,
the Buffalo National River's branch chief of interpretation.
Apparently, too many people felt that way.
"We all have to do our part to slow the spread of the virus," Branstetter said.
The park closed more than a week ago after videos showed a long line of cars parked near the river while people were supposed to be social distancing.
Still not everyone is following the rules now, rangers reported that some people were still coming into the park a few days ago. Since the park closed, rangers have given out 16 verbal warnings and eight written warnings. About half of those went to people in Arkansas, the others were from out of state.
"It's just hard for everyone to understand or even to get that information who have been coming for years to the Buffalo National River," Branstetter said.
She said if a ranger finds someone in the park, they make sure to educate them first.
"In some instances, very very rare instances, if there are repeated folks who are attempting to not abide by the closure that's in time, there have been a few tickets that have been written," Branstetter said.
About eight citations have been given out, five to people from Arkansas and three out of state.
And even though turkey hunting season just kicked off, that's not allowed on park lands either.
Branstetter said it's up to the state and federal government as to when the park will reopen.
"We haven't heard any changes from those entities as of now, but whenever we hear that of course our goal is to open as soon as possible based on those health guidelines," she said.
It doesn't beat the real thing, but The Buffalo National River also has information and posts you can check out online if you're missing the park at home. Its website is www.nps.gov/buff/index.htm
A day after Arkansas Governor Asa Hutchinson called for its closure, the Buffalo National River superintendent announced the river would close to the public.
“It breaks my heart to have to close this incredible public park." Mark Foust, Buffalo National River superintendent said in a statement. "It is, however, the right thing to do to protect the people that work here, live here, visit here, and love this place."
This closure comes a day after the state announced new rules regarding state-run parks. Starting Friday, April 3 at 8:00 a.m. all Arkansas State Parks will move to day use only in an effort to cut down on out-of-state visitors at the parks.
According to a news release, State highways and county roads that run through Buffalo National River will remain accessible to through or residential traffic. Roads that enter and terminate within the park, are closed to all but residential traffic.
The National Park Service will announce on its website when the river will open.
by Bill Bowden, Andy Davis
Gov. Asa Hutchinson said Wednesday that he had asked the federal government to close the Buffalo National River out of a concern that visitors from outside the state are spreading the coronavirus.
He also announced the virus had claimed the lives of two more Arkansans, raising the death toll in the state from the pandemic to 10. By Wednesday evening, the number of cases in the state had risen by 60 from a day earlier to 624.
Fifty-five of the state's 75 counties had cases, including the first ones reported in Carroll and Lee counties.
Hutchinson's announcement about the northern Arkansas river, designated as a national park, came a day after the Arkansas Democrat-Gazette reported that the river's largest resort had closed for a month out of concerns about crowds.
At least four Arkansas lawmakers and the mayor of Jasper sent letters to Interior Secretary David Bernhard asking for the park's closure.
"The trail heads are overrun with vehicles from every state in the country, including states with hot spots of covid-19," Republican Sens. Missy Irvin of Mountain View, Scott Flippo of Mountain Home, and Breanne Davis of Russellville said in their letter, dated Tuesday.
[Read two of the letters here]
"This has caused a tremendous strain on our local citizens, law enforcement, grocery stores and restaurants who are trying to follow the president's directives and prevent the virus from spreading in their communities," the senators said in the letter.
Hutchinson also expressed concern Tuesday about visitors to the park from states with larger coronavirus outbreaks than Arkansas' and said he would consult with the National Park Service on the issue.
On Wednesday, he said 60% of the park's visitors the previous day were from outside the state.
"You think about that in terms of hot spots across the country, the fact that other parks have closed, it certainly points to the need that if we're going to try to limit out-of-state visitors and the spread of covid-19 that we need to take this step, and I made that recommendation," Hutchinson said.
The Department of the Interior and the Park Service didn't return a message seeking comment on Hutchinson's request Wednesday.
The National Park Service has closed some parks because of crowds including Yosemite, Yellowstone, Canyonlands, Arches and Joshua Tree.
n Arkansas, all campgrounds in the Buffalo National River have already been closed to overnight camping as well as the Gulpha Gorge campground in Hot Springs National Park.
Pavilions and visitor centers at the Buffalo National River have been closed.
In his letter to the Interior secretary, state Rep. Keith Slape, R-Compton, said closing the river "will deliver a powerful message to all Americans of the severity of the situation and the importance of the simple yet effective tactic of just staying home."
"I don't think we were overrun in Jasper, but the people out in the county were very upset," Mayor Jan Larson said said.
"We're in the middle of a pandemic and there was a total disregard for any rules and regulations. We depend on tourism, but it's got to be managed."
Newton County Sheriff Glenn Wheeler said he's been in close contact with park Superintendent Mark Foust and County Judge Warren Campbell about the issue.
"I also spoke with Rep. Slape about it and reached out to Arkansas Tourism asking them to stop the campaign encouraging folks to get outdoors in the remote parts of the state," Wheeler said in a text message. "It overwhelmed our resources this past weekend, not to mention the influx of people from coronavirus hot spots and their interaction with our local folks, straining our grocery supplies, etc."
But Health Department Secretary Nate Smith reiterated Wednesday that ultraviolet rays from the sun tend to "degrade most viruses," decreasing the risk of transmission.
"That's why I've encouraged being outside," while keeping a safe distance from other people, he said.
In another moved aimed at discouraging visitors from other states, Stacy Hurst, secretary of the Department of Parks, Heritage and Tourism, said the state's parks will be closed to overnight visitors starting Friday, a move that she said is "consistent with 28 other states."
She said the state also will close certain "trails that are problematic," including Cedar Falls Trail and Cedar Falls overlook at Petit Jean State Park near Morrilton and the East and West Summit trails at Pinnacle Mountain near Little Rock.
Hurst said where possible, state parks will close their gates to visitors when their parking lots are full and ticket cars parked in unauthorized areas.
Park rangers also will disperse gatherings, and rangers at less popular parks will be reassigned to busier ones to help manage crowds. Other park workers will educate visitors on keeping a safe distance from each other, she said.
"If these measures aren't enough to address issues of overcrowding and inadequate social distancing, we'll pivot and make new recommendations to the governor," Hurst said.
In a news release later Wednesday, Hurst's department said other areas that will be closed include the day-use area on Arkansas 300 at Pinnacle Mountain State Park and the Fossil Flats Mountain Bike and Woody Plants trails at Devil's Den State Park near Winslow.
The state had already closed park lodges, museums and exhibits and limited camping to self-contained recreational vehicles.
To limit the spread of the virus, Arkansas has closed public schools through at least April 17, limited restaurants to takeout, drive-thru and delivery, indefinitely closed fitness clubs, hair salons and other businesses, and limited indoor social gatherings to 10 or fewer people.
Hutchinson said that, during a phone call Wednesday, Vice President Mike Pence and Deborah Birx, the White House coronavirus response coordinator, didn't bring up the need for a broader order telling residents to stay at home.
According to a count by The New York Times, statewide orders have been issued in 37 states, with Florida, Georgia, Mississippi and Nevada joining the list Wednesday. Orders are in place in parts of seven other states.
Birx "was delighted with what we we've done with our social distancing, with our restrictions that we have in place, and also with the success that we're having in terms of reducing the arc and flattening that curve," Hutchinson said.
He added that such orders seem to be mostly symbolic.
"Most governors simply broaden the definition of essential services so everything's an essential service," Hutchinson said.
"We can do that, and we might have to do that because there is some public messaging that if you're not doing something important, you need to to stay home.
"I think we've conveyed that. I think we've conveyed that from everything we're doing."
Hutchinson said the state has asked Birx's help in forecasting the spread of the virus in the state and will be sharing data with the White House.
Although members of the White House coronavirus task force unveiled projections showing that, even with restrictions on movement in place, the virus is expected to kill 100,000 to 200,000 Americans, Smith said the Trump administration hasn't provided projections on Arkansas deaths.
"For Arkansas, we really don't know," Smith said. "It really depends a lot on what we do today.
"So far our epidemic curve has been flatter than most places, and a lot of this has to do with not just the number of cases that you have but who's getting sick."
For instance, he said, protecting nursing-home residents has been a top priority.
Although one of the state's deaths was of a nursing home resident, Smith said covid-19 is known to spread quickly in nursing homes, and "we're very happy that we've not seen that kind of explosive spread in nursing homes where we've had positive cases."
He said the state is also trying to slow the rate of infections to avoid a surge in hospitalizations "that overwhelms our system."
"If we can have our peak later than other states, then there'll be more resources, particularly ventilators, available and less need to make difficult decisions," he said.
Arkansas officials said they had placed an order for 500 ventilators from an overseas manufacturer but ended up losing it after New York put in a much larger order at a higher price.
Hutchinson said Pence on Wednesday "gave us the confidence that, when we need ventilators we're going to have ventilators."
"That doesn't stop us from planning and working and trying to acquire what we're trying to acquire, but certainly the vice president and the president understand the future needs that a state like Arkansas has, and they're committed to work with us in meeting those needs," Hutchinson said.
President Donald Trump said at a briefing Tuesday that the federal government has 10,000 ventilators that it has been "holding back" so it can move them to places they're needed the most.
Smith said one of the people who died most recently was a central Arkansas resident, and that he did not have "complete information" on where the other one lived. At least one of the two people had underlying health conditions, he said.
According to the Pulaski County coroner, Virgil Finkey, 63, of North Little Rock, died from covid-19 at 5:37 p.m. Tuesday at Baptist Health Medical Center-North Little Rock.
The identity of the other person who died wasn't known Wednesday.
The state's eighth death, announced Tuesday, was of a 73 -year-old woman from Cleburne County, according to the Independence County coroner.
She died Monday at White River Medical Center in Batesville. The hospital did not provide the woman's name to the coroner.
All the state's other deaths have been of people age 65 or older except for Tanisha Cotton, 42, of Little Rock, who died Saturday morning at Saline Memorial Hospital in Benton.
The virus emerged late last year in Wuhan, China, and spreads through respiratory droplets emitted when people sneeze or cough. Symptoms -- fever, cough and shortness of breath -- have been mild for many people. Studies have indicated that the virus can live for days on surfaces.
The elderly and people with chronic health conditions are considered most at risk of severe illness, including pneumonia.
Smith said 56 of the state's coronavirus patients were hospitalized Wednesday, down from 64 a day earlier, and 25 were on ventilators, up from 23 a day earlier.
The new cases included four nursing home residents: two at The Waters at White Hall nursing home and two at The Villages of General Baptist West in Pine Bluff.
That brought the total number of nursing home residents with infections who have tested positive to 51, including four at the Pine Bluff facility and eight at the White Hall home, where at least one worker also has tested positive.
Five of those who recently tested positive were health care workers, bringing the total number of such workers who have been diagnosed with covid-19 to 84.
The total number of cases increased by 10 in Pulaski County, to 113, and by nine in Jefferson County, to 49.
The number went up by two each in Cleburne, Benton and Garland counties, bringing the number to 63 in Cleburne County, 40 in Benton County and 33 in Garland County.
Faulkner County had 36, with no new cases reported.
Out of all those who had tested positive as of Wednesday afternoon, 18 were children or teenagers 18 or younger, 170 were 65 or older and 396 were 18-64, Smith said.
Within the past day, Hutchinson said, the Health Department's lab had tested 147 people, the most it has tested in a single day.
The University of Arkansas for Medical Sciences had tested 65 people, and 691 results came in from commercial labs, Hutchinson said.
Hutchinson added that Walmart is working with New Jersey-based Quest Diagnostics to start drive-thru testing for covid-19 next week in Bentonville.
Like Walmart's two pilot testing sites in Chicago, this one will serve only health care workers and first-responders showing symptoms of the virus, a Walmart spokeswoman said in an emailed statement.
This third pilot site also will let the Bentonville-based retailer test a new site layout and operational needs, the spokeswoman said. She did not say why Bentonville was selected for the site or where in the city it will be located.
"In coming weeks, we anticipate supporting additional drive-thru testing sites in areas where state and local officials have identified a need and requested support," the spokeswoman said.
Quest Diagnostics has a network of labs around the world, including one in Bentonville.
Information for this article was contributed by Serenah McKay and Eric Besson of the Arkansas Democrat-Gazette.
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