Buffalo River Watershed Alliance
Northwest Arkansas Democrat Gazette
By Emily Walkenhorst
Posted: July 27, 2018 at 4:30 a.m.
The country's first national river is impaired, according to Arkansas environmental regulators.
The Buffalo National River and Big Creek, a nearly 19-mile tributary of the river, are categorized as impaired in part because of pathogens, or disease-causing bacteria, according to the Arkansas Department of Environmental Quality's draft list of impaired water bodies, or waters not meeting state water quality standards, released Thursday.
Only a 14.3-mile segment toward the middle of the 150-mile river is impaired, meaning the amount of pathogens exceeds water-quality standards. The rest of the river is not listed as impaired.
About 15 miles of Big Creek is also categorized as impaired, again because of pathogens, and the final 3.7 miles of the creek before it flows into the Buffalo is listed as impaired because of abnormally low dissolved oxygen levels but not for the presence of pathogens.
The source of the pathogens is unknown, according to the department's report.
In 2017, nearly 1.5 million people visited the Buffalo National River and spent $62.6 million supporting 911 jobs, according to the National Park Service.
The department released its biannual list of impaired waters, also known as the 303(d) list for the section of the federal Clean Water Act that requires it, as a draft Thursday. The agency is accepting public comments through Sept. 10, after which revisions will be considered before it is submitted to the U.S. Environmental Protection Agency for approval.
In 2016, conservationists and the National Park Service requested that Mill Creek, Bear Creek and Big Creek all be included on the list because of data collected in 2015. That data showed Mill Creek had elevated E. coli levels and Bear Creek, like Big Creek, had low dissolved oxygen.
The department said at the time that the data did not fit into the two-year "period of record" that ends March 31 of the year before submission to be included on the list.
The Arkansas Democrat-Gazette asked the department Thursday why Mill Creek and Bear Creek were not included on the 2018 list.
The department did not grant an interview request but said the newspaper could find answers to questions sent to the department about Buffalo River tributaries and other aspects of the impaired-water-bodies list in the more than 100 pages of documents published on its website. The newspaper was unable to locate information in those pages on deadline about the other tributaries and did not receive a response from the department after stating so.
The department and the U.S. Geological Survey are performing studies -- separate from the 303(d) requirements -- on E. coli in Mill Creek and nutrients and bacteria in the creek's watershed.
A declaration of impairment often means more study and eventually prescriptive actions to improve the stream or lake. Those measures might include pollutant limits, determined by a Total Maximum Daily Load calculation, imposed on farming or other activities believed to be contributing to the impairment.
In the Buffalo's and Big Creek's case, they were placed in the 4b category, meaning they are considered impaired but do not require prescriptive measures because of work already underway. According to the department, that work is the Beautiful Buffalo River Action Committee and the Buffalo River Watershed Management Plan. The latter is a voluntary guide of recommended measures that would benefit the river and its watershed. The committee meets a couple of times a year to discuss work and issues in the watershed.
On Thursday, some disagreed about what might be behind the impairments to Big Creek and the Buffalo National River.
Environmental groups have long been concerned that C&H Hog Farms -- the watershed's only federally classified large hog farm -- which is on Big Creek 6 miles from where it meets the Buffalo, could pollute the Buffalo River. Many have argued that it already has, based on ongoing studies of the creek.
Agricultural groups have looked at the same studies and argued that they show the farm has not been polluting the watershed.
"While some will no doubt use this declaration to unnecessarily cast a black mark against C&H Hog Farms, it is worth noting the state-sponsored science conducted by the Big Creek Research and Extension Team has never indicated C&H as a source of any environmental problems," Steve Eddington, a spokesman for the Arkansas Farm Bureau wrote in an email to the newspaper. Eddington contended that C&H has employed measures, such as controlling the timing and volume of manure application to its property, to reduce runoff of nutrients like nitrogen and phosphorus
Gordon Watkins, president of the Buffalo River Watershed Alliance, expressed frustration Thursday with Big Creek and the Buffalo River not being listed as Category 5 impaired bodies, which would have required Total Maximum Daily Load studies and limits set for them.
"The watershed management plan is all voluntary," he said.
The plan, announced in 2016 by Gov. Asa Hutchinson and completed earlier this year, also did not address C&H Hog Farms, as Watkins and others wanted, because officials with the Arkansas Natural Resources Commission said regulated entities are outside of the scope of such plans.
The watershed management plan did not list Big Creek as a priority stream, which means applications for voluntary watershed management funding on the creek are not prioritized compared with six other streams in the watershed.
Instead of treating Big Creek and the Buffalo like other Category 5 waters, Watkins said, the department is shifting responsibilities for the waters to other government agencies and "small organizations like us."
The 2018 list added hundreds of miles of several waterways, including portions of the Saline River, Ouachita River, Smackover Creek and Little Cornie Creek. It removed fewer waters but well over 100 miles worth of streams and a 1,338-acre portion of Beaver Lake, a recreational and drinking water source for Northwest Arkansas.
Last week, Save the Illinois River Inc. sent a letter to the Environmental Protection Agency objecting to its approval of the department's 2016 303(d) list, arguing that no change in total phosphorus had been shown to be used to justify the removal of Osage Creek and Spring Creek in the Illinois River's watershed from the Category 5 list.
The EPA argued in its approval of the 2016 list last year that those creeks could be Category 4b because of existing efforts to improve the Illinois River.
Those creeks were not listed as 4b in the 2018 draft, and questions about the creeks and recent steps taken to improve the Illinois River were not answered by the Arkansas Department of Environmental Quality on Thursday.
Metro on 07/27/2018
Arkansas Times
New Pollution Control commissioner ignores conflict and votes for hog farm Posted By Max Brantley on Fri, Jul 27, 2018 at 3:35 PM The news from the Buffalo River continues to be bad, between increasing algae and pollution problems and Governor Hutchinson's overt corporate politicking in government agencies. The Farm Bureau now effectively has a designated seat on the Pollution Control and Ecology Commission in the person of Mike Freeze and his first outing wasn't environmentally inspiring for protectors of the Buffalo. The issue today was the convoluted permit situation for C & H, the factory hog farm in the Buffalo River watershed at Mount Judea. The good news is that the Commission rejected an argument by a lawyer paid by the Farm Bureau that C & H was entitled to a perpetual permit for its waste disposal. No, a hearing officer has determined. The commission has now affirmed that one permit has expired and a second type of permit has been denied. The appeal on the second permit continues so the farm may continue to operate. But this was the interesting news today. Hutchinson recently appointed Farm Bureau leader Mike Freeze, a Keo fish farmer, to the commission. The governor has bragged about that appointment and a commitment to putting the state agriculture secretary on the commission. Well and good, since polluting interests have tended to control the commission anyway. But today's news is an egregious conflict of interest. Freeze had written in favor of the permit for C & H before he was appointed. He was asked by environmentalists to recuse from today's vote on the administrative law judge's finding, given the evidence that he was biased in favor of C & H. He refused to recuse and then he voted (in the minority) for C & H in today's permit discussion. Richard Mays, representing the Buffalo River Watershed Alliance, in making his case that Freeze should recuse, read a couple of emails Freeze sent ADEQ during a public comment last year, before his appointment, on the individual permit sought by C & H. Freeze's first comment, in February, expressed favor for granting C & H the permit. Freeze was moved to make a second comment in March: I am writing you in support of C & H Hog farms being issued their ADEQ permit. Enough is enough! This farm has complied with every restriction asked of them and are good stewards of the environment. I urge ADEQ to use science in issuing the C & H Hog farm permit and not to allow emotional appeals from various people to sway ADEQ from doing what is right. Mays and Sam Ledbetter, who represents the Sierra Club, said they weren't questioning Freeze's personal integrity, but that it was important to their clients — who aren't hysterical, Mays noted later, despite the reference to emotional people — and the public that the commission avoid the appearance of bias. Mays said his clients, too, have asked the commission to make its permit decisions on science. Freeze, in response, said, "I am an environmentalist also." He said he could "compartmentalize" his previous opinions and his decisions as a commissioner that would be based on more information than he had when he wrote the comments. "I can be fair and honest," Freeze said. When you behold the algae-clogged Buffalo, think about Mike Freeze. You might also remember Judge Wendell Griffen. I bet Sen. Trent Garner and similar won't be calling for the removal of Freeze, a putative neutral fact-finder, from his new position of influence over the pollution of Arkansas air and water. The other bad Buffalo River news is the enormous growth of algae in the scenic river. It includes discovery of a harmful bacteria that has prompted cautions about swimming and wading and drinking water from the river, as detailed in the link from the National Park Service. The Buffalo and Big Creek, on which C and H sits, also appear on a list of many Arkansaas waterways designated as having impaired water quality, a situation reported this morning in the Arkansas Democrat-Gazette. Watch closely those appointed to protect them and how they vote.
Posted By Max Brantley on Fri, Jul 27, 2018 at 3:35 PM The news from the Buffalo River continues to be bad, between increasing algae and pollution problems and Governor Hutchinson's overt corporate politicking in government agencies. The Farm Bureau now effectively has a designated seat on the Pollution Control and Ecology Commission in the person of Mike Freeze and his first outing wasn't environmentally inspiring for protectors of the Buffalo. The issue today was the convoluted permit situation for C & H, the factory hog farm in the Buffalo River watershed at Mount Judea. The good news is that the Commission rejected an argument by a lawyer paid by the Farm Bureau that C & H was entitled to a perpetual permit for its waste disposal. No, a hearing officer has determined. The commission has now affirmed that one permit has expired and a second type of permit has been denied. The appeal on the second permit continues so the farm may continue to operate. But this was the interesting news today. Hutchinson recently appointed Farm Bureau leader Mike Freeze, a Keo fish farmer, to the commission. The governor has bragged about that appointment and a commitment to putting the state agriculture secretary on the commission. Well and good, since polluting interests have tended to control the commission anyway. But today's news is an egregious conflict of interest. Freeze had written in favor of the permit for C & H before he was appointed. He was asked by environmentalists to recuse from today's vote on the administrative law judge's finding, given the evidence that he was biased in favor of C & H. He refused to recuse and then he voted (in the minority) for C & H in today's permit discussion. Richard Mays, representing the Buffalo River Watershed Alliance, in making his case that Freeze should recuse, read a couple of emails Freeze sent ADEQ during a public comment last year, before his appointment, on the individual permit sought by C & H. Freeze's first comment, in February, expressed favor for granting C & H the permit. Freeze was moved to make a second comment in March: I am writing you in support of C & H Hog farms being issued their ADEQ permit. Enough is enough! This farm has complied with every restriction asked of them and are good stewards of the environment. I urge ADEQ to use science in issuing the C & H Hog farm permit and not to allow emotional appeals from various people to sway ADEQ from doing what is right. Mays and Sam Ledbetter, who represents the Sierra Club, said they weren't questioning Freeze's personal integrity, but that it was important to their clients — who aren't hysterical, Mays noted later, despite the reference to emotional people — and the public that the commission avoid the appearance of bias. Mays said his clients, too, have asked the commission to make its permit decisions on science. Freeze, in response, said, "I am an environmentalist also." He said he could "compartmentalize" his previous opinions and his decisions as a commissioner that would be based on more information than he had when he wrote the comments. "I can be fair and honest," Freeze said. When you behold the algae-clogged Buffalo, think about Mike Freeze. You might also remember Judge Wendell Griffen. I bet Sen. Trent Garner and similar won't be calling for the removal of Freeze, a putative neutral fact-finder, from his new position of influence over the pollution of Arkansas air and water. The other bad Buffalo River news is the enormous growth of algae in the scenic river. It includes discovery of a harmful bacteria that has prompted cautions about swimming and wading and drinking water from the river, as detailed in the link from the National Park Service. The Buffalo and Big Creek, on which C and H sits, also appear on a list of many Arkansaas waterways designated as having impaired water quality, a situation reported this morning in the Arkansas Democrat-Gazette. Watch closely those appointed to protect them and how they vote.
The news from the Buffalo River continues to be bad, between increasing algae and pollution problems and Governor Hutchinson's overt corporate politicking in government agencies. The Farm Bureau now effectively has a designated seat on the Pollution Control and Ecology Commission in the person of Mike Freeze and his first outing wasn't environmentally inspiring for protectors of the Buffalo. The issue today was the convoluted permit situation for C & H, the factory hog farm in the Buffalo River watershed at Mount Judea. The good news is that the Commission rejected an argument by a lawyer paid by the Farm Bureau that C & H was entitled to a perpetual permit for its waste disposal. No, a hearing officer has determined. The commission has now affirmed that one permit has expired and a second type of permit has been denied. The appeal on the second permit continues so the farm may continue to operate. But this was the interesting news today. Hutchinson recently appointed Farm Bureau leader Mike Freeze, a Keo fish farmer, to the commission. The governor has bragged about that appointment and a commitment to putting the state agriculture secretary on the commission. Well and good, since polluting interests have tended to control the commission anyway. But today's news is an egregious conflict of interest. Freeze had written in favor of the permit for C & H before he was appointed. He was asked by environmentalists to recuse from today's vote on the administrative law judge's finding, given the evidence that he was biased in favor of C & H. He refused to recuse and then he voted (in the minority) for C & H in today's permit discussion. Richard Mays, representing the Buffalo River Watershed Alliance, in making his case that Freeze should recuse, read a couple of emails Freeze sent ADEQ during a public comment last year, before his appointment, on the individual permit sought by C & H. Freeze's first comment, in February, expressed favor for granting C & H the permit. Freeze was moved to make a second comment in March: I am writing you in support of C & H Hog farms being issued their ADEQ permit. Enough is enough! This farm has complied with every restriction asked of them and are good stewards of the environment. I urge ADEQ to use science in issuing the C & H Hog farm permit and not to allow emotional appeals from various people to sway ADEQ from doing what is right. Mays and Sam Ledbetter, who represents the Sierra Club, said they weren't questioning Freeze's personal integrity, but that it was important to their clients — who aren't hysterical, Mays noted later, despite the reference to emotional people — and the public that the commission avoid the appearance of bias. Mays said his clients, too, have asked the commission to make its permit decisions on science. Freeze, in response, said, "I am an environmentalist also." He said he could "compartmentalize" his previous opinions and his decisions as a commissioner that would be based on more information than he had when he wrote the comments. "I can be fair and honest," Freeze said. When you behold the algae-clogged Buffalo, think about Mike Freeze. You might also remember Judge Wendell Griffen. I bet Sen. Trent Garner and similar won't be calling for the removal of Freeze, a putative neutral fact-finder, from his new position of influence over the pollution of Arkansas air and water. The other bad Buffalo River news is the enormous growth of algae in the scenic river. It includes discovery of a harmful bacteria that has prompted cautions about swimming and wading and drinking water from the river, as detailed in the link from the National Park Service. The Buffalo and Big Creek, on which C and H sits, also appear on a list of many Arkansaas waterways designated as having impaired water quality, a situation reported this morning in the Arkansas Democrat-Gazette. Watch closely those appointed to protect them and how they vote.
The news from the Buffalo River continues to be bad, between increasing algae and pollution problems and Governor Hutchinson's overt corporate politicking in government agencies. The Farm Bureau now effectively has a designated seat on the Pollution Control and Ecology Commission in the person of Mike Freeze and his first outing wasn't environmentally inspiring for protectors of the Buffalo. The issue today was the convoluted permit situation for C & H, the factory hog farm in the Buffalo River watershed at Mount Judea. The good news is that the Commission rejected an argument by a lawyer paid by the Farm Bureau that C & H was entitled to a perpetual permit for its waste disposal. No, a hearing officer has determined. The commission has now affirmed that one permit has expired and a second type of permit has been denied. The appeal on the second permit continues so the farm may continue to operate. But this was the interesting news today. Hutchinson recently appointed Farm Bureau leader Mike Freeze, a Keo fish farmer, to the commission. The governor has bragged about that appointment and a commitment to putting the state agriculture secretary on the commission. Well and good, since polluting interests have tended to control the commission anyway. But today's news is an egregious conflict of interest. Freeze had written in favor of the permit for C & H before he was appointed. He was asked by environmentalists to recuse from today's vote on the administrative law judge's finding, given the evidence that he was biased in favor of C & H. He refused to recuse and then he voted (in the minority) for C & H in today's permit discussion. Richard Mays, representing the Buffalo River Watershed Alliance, in making his case that Freeze should recuse, read a couple of emails Freeze sent ADEQ during a public comment last year, before his appointment, on the individual permit sought by C & H. Freeze's first comment, in February, expressed favor for granting C & H the permit. Freeze was moved to make a second comment in March:
I am writing you in support of C & H Hog farms being issued their ADEQ permit. Enough is enough! This farm has complied with every restriction asked of them and are good stewards of the environment. I urge ADEQ to use science in issuing the C & H Hog farm permit and not to allow emotional appeals from various people to sway ADEQ from doing what is right.
KATV
ADEQ report lists Arkansas waterways as "impaired", including portions of Buffalo River
LITTLE ROCK (KATV) — It's a list the Arkansas Department of Environmental Quality is mandated to submit to the EPA every two years, in accordance with the federal Clean Waters Act - a list that compiles water quality data on all of Arkansas's rivers, lakes and streams.
"They're waters in the state that are not meeting water quality standards and that would fall in a category that might need a regulatory mechanism to be put in place," said Caleb Osborne, associate director of ADEQ's water quality division.
The biannual report is known as the 303d List, and the 2018 draft list released on Thursday lists hundreds of segments, comprising thousands of miles of Arkansas waterway, to be "impaired".
According to ADEQ officials, an "impairment" refers to a situation where the level of a pollutant or other water-quality measure fails to meet state-set standards.
Included in the 2018 draft 303d List are four segments of the Buffalo River Watershed - three of which reported elevated E. coli levels. Those "impaired" Buffalo River segments are not far from the controversial C&H Hog Farm located outside Mt. Judea in Newton County, a place that's already been under public scrutiny over existing concerns of possible liquid waste contamination leaking into the Buffalo.
"The relationship between that facility and these impairments - that's not something that this data tells us," said Osborne.
Osborne said what the data simply suggests is the existence of the pathogens in the water surrounding C&H Hog Farm and not where it is coming from. ADEQ had no comment on whether at even a correlation exists between the farm and bacteria in the water, citing an ongoing appeal by the hog farm regarding the agency's rejection of a new liquid waste permit in January.
"With these impairments being noted and going into 4B classification, future research projects, future research efforts in that vicinity to better understand what's going on or could contribute to those impacts - that will help answer that question," said Osborne aboutthe potential of liquid animal waste runoff being the cause of increased E. coli levels.
ADEQ officials stress that despite the water impairment data, they're not suggesting it's unsafe to recreate in the effected areas. Osborne said the data is based on trends and multiple years of data and don't suggest an "immediate emergency".
Listen: KUAF Radio
Park Service Investigates Algae on Buffalo National River
By JACQUELINE FROELICH • JUL 19, 2018
Public complaints about a growing number of algal blooms on the Buffalo National River have spurred the National Park Service to investigate. Park Service spokesperson Caven Clark says visitors are welcome to safely float and swim in the river, but visitors should avoid primary contact with affected stream sections. The Park Service posts seasonal critical alerts online, as well as water quality monitoring data by stream section.
Listen to the full report at the link at top.
Posted: July 16, 2018 at 4:30 a.m.
A conservation group wants to buy the final tract of land needed to finish a hiking trail that would stretch about 100 miles along the Buffalo National River.
The tract is the only land along the Buffalo River Trail that is not federal land or already open to public access, said Caven Clark, spokesman for the National Park Service in Harrison. One other gap in the trail exists, between Pruitt and Wollum, but it's on federal land and is being completed gradually.
A map showing the Roberts tract.
The Buffalo River Foundation has purchased an option agreement that gives the group until October to raise the $52,000 needed to buy the private land. The group, working alongside other conservation groups, wants to raise an additional $28,000 to survey, appraise and endow the land, among other things.
The land, known as the Roberts Tract, separates two ends of the existing trail. It contains the only feasible spot to build the about 1,600 feet needed to finish a 28-mile connecting trail, said Ross Noland, director of the foundation, a nonprofit land trust.
The other 27 miles of the connecting trail are already built but haven't opened yet or been placed on maps so that people are not encouraged to trek over the private land in their quest to traverse the entire trail.
"We've got to have the Roberts Tract. It's vital to us," said Duane Woltjen, a long-time member and board member of north Arkansas conservation groups and current webmaster for the Ozark Highlands Trail Association.
The 28 miles extends the distance between U.S. 65 and Arkansas 14.
The Buffalo River Trail is part of a larger ambition to connect the Ozark Highlands Trail, beginning in Lake Fort Smith, to the imagined Ozark Trail, ending in St. Louis. The Ozark Highlands Trail has been constructed from Lake Fort Smith to Norfork, Woltjen said, and more than 300 of the 500 proposed miles of the Ozark Trail in Missouri have been completed.
Altogether, the several hundred miles of trails would be called the Trans-Ozark Trail, akin to the Appalachian Trail or the Pacific Crest Trail, although less than half the length.
One man has traversed the route, Woltjen said. He calls himself "Nimblewill Nomad," a nation-trotting, blogging backpacker who broke his leg in the middle of doing it. His given name is M.J. Eberhart, nicknamed "Eb."
Completing the trail will make it more accessible to hikers who don't wish to trespass on private property, Noland and others said.
"Hikers, unless they trespass, have to turn around and go back," Clark said.
"So it's like the transcontinental railway," Clark said, referring to the railroad that connected the eastern half of the United States to California in the 1860s via a route from Council Bluffs, Iowa, to Sacramento.
Obstacles to completing the trails in Arkansas are largely finding the resources to build them, trail advocates said. In Missouri, the trail faces similar obstacles the Arkansas conservation groups faced with the Roberts Tract -- many sections of the trail in between units of the Mark Twain National Forest are private land, Woltjen said.
If the foundation purchases the Roberts Tract, Noland said, the foundation and its partner groups would visit the land Nov. 17 to clear the remaining 1,600 feet of trail and connect it to the existing trail.
The land is a 63-acre tract between U.S. 65 and Arkansas 14 on the lower Buffalo previously owned by J.I. and Joyce Graham Roberts. The tract is at the bottom of a sharp southern dip in the river and just before it turns back north to the Maumee South launch point.
J.I. Roberts's father left it to him, and he left it to his three children when he died, according to Noland and court documents. His father, Bruce Roberts, lived in Louisiana and never built a house on the property as he had planned when he bought it in the 1960s, and his grandchildren never visited the land.
In 1983, after years of fighting a move by the federal government to condemn the land, the Robertses entered into an agreement with the U.S. that cedes some of the land to the National Park Service for a scenic easement.
The office of then-U.S. Attorney for the Western District of Arkansas Asa Hutchinson pursued the condemnation on the behalf of acting U.S. Secretary of the Interior J.J. Simonds III. The first complaint in condemnation was filed in 1979 at the request of then-Secretary Cecil D. Andrus, three years before Hutchinson was appointed U.S. attorney.
The scenic easement was a compromise, and it means nothing can be built on the land. The agreement also doesn't allow the public to enter the property.
If the foundation can buy the land, the easement goes away, Clark said.
The National Park Service would strike up an agreement with whoever would end up owning the land to have the land be preserved the same way Buffalo National River land is, Clark said.
For decades, volunteers have built the Buffalo River Trail. The Ozark Society has hosted trail building outings led by Ken Smith, author of the Buffalo River Handbook.
That's how much of the Ozark Highlands Trail was built, too, Woltjen said, recalling a period from 1999 to 2003 in which he and his wife helped build about 30 miles of the trail in the Sylamore Ranger District.
Metro on 07/16/2018
Posted: July 11, 2018 at 1:08 a.m.
A judge recommended to environmental regulators Tuesday a permit application for a hog farm within the Buffalo River watershed should go back out for public notice and comment after it was denied earlier this year.
The Pollution Control and Ecology Commission must approve or disapprove of Administrative Law Judge Charles Moulton's recommendation on C&H Hog Farms. A vote is scheduled for Aug. 24.
If approved by the commission, the hog farm's permit application would be reopened for public input more than two years after the farmers' first applied for a new operating permit. C&H is currently operating under an expired permit issued under a different, and now-canceled, regulatory program.
Richard Mays, an attorney for some opponents of C&H Hog Farms who intervened in the farm's appeal of its permit denial, said he had "pretty high" optimism that the department would not reverse its permit denial after another public-comment period.
"It certainly doesn't mean by any means that it's going to make a difference in the decision," said Mays, adding that he believes the department would still find the owners' application insufficient.
A spokesman for the department and an attorney for the owners declined to comment.
Agriculture groups have been dismayed by the department's denial of C&H's new operating permit, and some farmers have expressed concern about the department's ability to shut down a farm.
Conservation groups have supported the denial, asserting that land application of hog manure on the rough karst terrain of the river's watershed poses a risk that the river and its tributaries can become more easily polluted.
In his order, Moulton found that the Arkansas Department of Environmental Quality is not prohibited from having multiple public-comment periods on the same permit application.
In addition, the department's reversal from its preliminary approval of C&H's permit to a final decision denying it was akin to a "substantive change to a permit condition that resulted from public comment," which Moulton said was "generally accepted" as an impetus for another comment period.
The farm's attorneys had argued that a different conclusion by the department necessitated a second public notice and comment period.
The first public notice and comment period came after the department gave preliminary approval to C&H's application for a new operating permit.
Based on public comments, the department denied C&H Hog Farms an operating permit because the application did not contain a study on the flow direction of groundwater or an emergency action plan.
C&H Hog Farms operates on Big Creek, about 6 miles from where the creek drains into the Buffalo National River. The farm is authorized to hold 6,503 pigs and is the only federally classified medium or large hog farm in the area.
The typical hog farm doesn't need to renew its permit or apply for a new one without making major modifications because such operations are permitted under Regulation 5. But C&H is the state's only hog farm permitted under another category, Regulation 6, which is an expired permitting program that issued permits that last only five years before requiring renewal.
Both the hog farm's attorneys and the department's attorneys cited the same statue to make their cases, Ark. Code Ann. 8-4-203(e)(1).
Attorneys for C&H cited subsections (A) and (B) of the statute, which state that the department must provide public notice of its decision to issue or deny a permit and initiate a 30-day public-comment period. The department should have issued public notice after coming to a conclusion other than its preliminary recommendation of permit approval, which is what people commented on, the attorneys argued.
Attorneys for the department cited subsection (C)(i), which states that the department must provide a "final written permitting decision." That's "exactly what" the department did, its attorneys contended.
After reading Moulton's order, Mays said sending the permit back out for public comment may be better in the long run for his clients' case. If the dispute over whether the department followed proper procedure in its decision-making process is resolved now, that issue won't be brought up again if C&H's appeal of its permit denial goes to higher courts, he said.
NW News on 07/11/2018
By Mike Masterson
Posted: July 8, 2018 at 1:50 a.m
Attorneys for C&H Hog Farms (badly misplaced in the Buffalo National River watershed) are herding every pig-in-a-poke possible toward the state's Pollution Control and Ecology Commission in hopes of overturning their client's Regulation 5 permit denial.
Without exploring the tedious specifics of their attempt, I'll consolidate by saying my understanding is factory lawyers are arguing that just because the Arkansas Department of Environmental Quality (cough) issued C&H a since-discontinued Regulation 6 general permit in 2012, that permit should continue pending issuance of an individual version of the federal pollution elimination discharge permit.
By that line of reasoning, the department's subsequently denying of C&H's 2016 application for a Regulation 5 permit wasn't sufficient to terminate the factory's authority to operate. Huh?
Asked about that argument, attorney Richard Mays of the Buffalo River Watershed Alliance said, "There's no valid factual or legal basis for these arguments. Instead, they are designed to detract from the undisputed basic fact that, before ADEQ determined not to reissue its Regulation 6 general permit, C&H voluntarily elected to apply for coverage under a Regulation 5--not a Regulation 6."
The resulting evaluation process dragged on from April 7, 2016, to Jan. 10, 2018. And the agency's eventual denial led to C&H's ongoing appeal of that rejection.
"It was only after ADEQ denied C&H's Regulation 5 application that C&H conjured up its novel theory that a Regulation 6 general permit had to be replaced by a Regulation 6 individual permit and that ADEQ denying its Regulation 5 permit did not terminate its original coverage under the Regulation 6 general permit," Mays added.
Get all that regulatory rigmarole? The posturing gets confusing even to lawyers who write it.
Mays tried clarifying further: On April 7, 2016, C&H (operating on its original Regulation 6 general permit) applied for an individual permit under Regulation 5 which, unlike Regulation 6, is a state- rather than EPA-sanctioned pollution discharge permit with no expiration date. Such permits also likely are not subject to most citizen lawsuits.
"Then, two weeks later on April 20, 2016, C&H also filed a notice of intent to continue its coverage under the Regulation 6 general permit. However, ADEQ decided not to renew that general permit program," Mays said. "On May 3, 2016, [the agency] notified C&H it was considering C&H's application for a Regulation 5 permit to replace the factory's Regulation 6 general permit. C&H did not object, or appeal, the non-renewal of [its] Regulation 6 general permit."
Between April 7, 2016, when C&H applied for the Regulation 5 permit and Jan. 11, 2018, when the Department of Environmental Quality ultimately denied it, the department processed its application, issued an initial notice of intent to issue the permit (pending public comment), and received and analyzed some 20,000 public comments. C&H appealed that denial to the full commission, which initiated a hearing before the commission's Administrative Law Judge Charles Moulton.
"Yet at no time during that process did C&H raise any issues about continuing its coverage under the Regulation 6 general permit," said Mays.
In its appeal before Moulton, C&H raised numerous issues. One argument was that it is entitled, under various statutes and regulations, to continued coverage of its original general permit until an individual permit is issued. They claimed the denial of a Regulation 5 permit doesn't affect C&H's right to continue operating.
"In other words, C&H is arguing it cannot be closed down, and that ADEQ's permit denial is not even an option," said Mays. "In my opinion, it's a ludicrous argument arising from desperation. ADEQ and the intervenors (Watershed Alliance, Canoe Club, Ozark Society, etc.) all do not agree."
In response to the agency's motion to dismiss these matters, C&H also argued that, in having denied it the Regulation 5 permit, the agency was obligated to publish a public notice of its intent to deny that permit and solicit comment (just as it was obligated to and did publish an initial notice of intent to grant the permit).
Judge Moulton agreed with C&H on that point, and factory attorneys have filed a motion for summary judgment so it can ask the commission to remand the matter to the Department of Environmental Quality for that public notice and comments on the denial. That motion rests with Moulton. Meanwhile, the agency has been citing related cases in hopes of changing his decision.
Should Moulton stick with his original decision on the department giving public notice of its denial, I believe any instructions should be for the limited purpose of publication of the notice of intent to deny the Regulation 5 permit, not for agency reconsideration of its actual denial. I'm pleased to see Moulton made it clear he wasn't rendering an opinion on the validity of the permit denial--only on the agency's failure to publish a notice of intent to deny and comments.
I need a buffered powder. Please don't make me try to explain all this again.
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Public Notice Resource Center
Associated Press
June 29, 2018
Jurors Slap Pork Giant Smithfield With $25M for Nuisances
By EMERY P. DALESIO, AP Business Writer
RALEIGH, N.C. (AP) — A federal jury on Friday punished the world's largest pork producer, deciding Smithfield Foods should pay two neighbors more than $25 million for unreasonable nuisances they suffered from odors, flies and rumbling trucks after an industrial-scale hog grower expanded near their home.
The case, which was supposed to be one of the most favorable to Smithfield Foods out of dozens of similar pending lawsuits in North Carolina, turned out worse for the company than a previous lawsuit that rocked agribusiness in the country's No. 2 pork-producing state.
That earlier case, selected by lawyers for more than 500 neighbors who are suing industrial-scale hog farms in eastern North Carolina, ended in April with jurors awarding 10 neighbors $51 million for nuisances they'd long tolerated. The fine was cut to about $3 million because North Carolina law limits punitive damages. Friday's damages are also expected to be slashed.
Still, the April verdict led North Carolina legislators to pass a law this week erecting new barriers against nuisance lawsuits that all but eliminate the right of neighbors to sue Smithfield Foods, its contract growers or any other agribusiness. The legislation was needed "to save every farmer in this state from frivolous lawsuits," said bill sponsor Sen. Brent Jackson, an agribusiness founder and Republican who represents three counties in what is the country's heaviest concentration of industrialized hog lots.
Critics billed the legislation as an attack on private property rights in order to protect a well-heeled industry. The law adopted over a veto by Gov. Roy Cooper will be followed by demands for similar protection by other special interests, said Republican Rep. John Blust, an attorney from suburban Greensboro.
"This is like the first domino to fall," he said.
Smithfield declined to comment Friday, citing a judge's gag order meant to limit pre-trial publicity ahead of the next trials. More than a half-dozen lawsuits are scheduled for trial this year attacking Virginia-based Smithfield for its open-pit waste handling methods.
The lawsuits target the hog-production division of Smithfield— not the farm operators — because plaintiffs' lawyers said the company used strict contracts to dictate how farmers raise livestock that Smithfield owns. Smithfield is owned by Hong Kong-headquartered WH Group, which posted profits of about $1 billion last year.
Despite decades of complaints from neighbors and environmentalists, the predominant method of handling hog waste in North Carolina is collecting it in open-air pits that are emptied by spraying liquid excrement on farm fields.
Smithfield has continued using the low-cost method because it helps the company produce pork for less than in China, lawyers for the neighbors said. Smithfield began covering its waste pits on Missouri farms to reduce odors under pressure from that state's attorney general more than a decade ago.
Smithfield and pork trade groups counter that no alternative method — including covering cesspools for odor control or drying and trucking away manure — is economically viable in North Carolina. And anyway, Smithfield hog farms don't smell, the company's lawyers and allies said. The plaintiffs dispute the assertion.
Livestock owners' fears that they could be shut down by nuisance lawsuits were heightened after Smithfield's earlier courtroom loss. The company told farm operator William Kinlaw last month that he breached his contract with the pork giant that required him to control odors and "maintain proper sanitation." The company removed its revenue-producing hogs from the farm.
But "Smithfield has decided to provide him with some temporary financial assistance pending appeal" of its court loss, company spokeswoman Keira Lombardo said in an email this week. She said Smithfield would not discuss how much it is spending or whether it is keeping Kinlaw's business afloat. Kinlaw did not have a listed phone number and could not be reached for comment.
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Follow Emery P. Dalesio on Twitter at http://twitter.com/emerydalesio . His work can be found at https://apnews.com/search/emery%20dalesio
Copyright 2018 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Arkansasonline
State regulators: Public notice on hog farm permit unneeded
This article was published today at 4:30 a.m.
State environmental regulators did not need to issue a proposed decision to deny a new operating permit to a hog farm in the Buffalo River watershed, the regulators argued in a case filing posted Wednesday on the hog farm's appeal of the permit denial.
While the Arkansas Department of Environmental Quality must by law issue public notice of a proposed decision to grant or deny a permit application, the department provides its final decision after the public notice and comment period are over, the department argued.
That means the department didn't need to issue a public notice that officials had changed their minds and determined that C&H Hog Farms should not be granted a new operating permit, the department said in its filing.
C&H Hog Farms said in a motion last month for summary judgment in its favor that the department should have given public notice of its decision to deny the permit because it was different from its original proposed decision to grant the permit. C&H's attorneys cited Ark. Code Ann. 8-4-203(e)(1)(A) and (B).
Intervenors in the case asked that the motion be denied. The Ozark Society, one of two intervening groups, stated that it adopted and supported the department's argument as its own response to C&H's motion. Both intervening groups oppose C&H's operation in the Buffalo River's watershed.
C&H Hog Farms sits on Big Creek, about 6 miles from where the creek drains into the Buffalo National River. The farm is authorized to hold 6,503 pigs and is the only federally classified medium or large hog farm in the area.
The department denied C&H Hog Farms an operating permit in part because the operation did not conduct a study on the flow direction of groundwater or develop an emergency action plan, according to the department's responses to public comments on the permit application.
"ADEQ was required by law, regulation, and constitutional due process to provide public notice of its proposed decision and provide an opportunity for comment upon its proposed decision prior to issuing a final decision," C&H's attorneys wrote in their Feb. 7 amended request for a hearing on their appeal.
The case is before the Arkansas Pollution Control and Ecology Commission, which is the department's appellate and rule-making body. The commission's administrative law judge issues orders and recommends decisions that must be approved by the commission's full 13-member body. The commission publishes the filings on its website, usually a day after they are filed.
Commission Administrative Law Judge Charles Moulton had stated in an order before that motion that he believed C&H's interpretation of the law was correct. But Moulton did not order the permit to go back out for public comment because C&H's attorneys had not made a motion for summary judgment.
In their response filed Tuesday, department attorneys cited Subsection (C)(i) of Ark. Code Ann. 8-4-203(e)(1), which states: "At the conclusion of the public comment period, the department shall provide a final written permitting decision regarding the permit application."
The department described C&H's omission of the subsection from its argument as contrary to "principles of statutory interpretation."
"After proposing a draft permit, it [the department] published notice, and it received voluminous public comment on the proposed draft ... ADEQ asserts that subsections (A) and (B) must be read together with subsection (C), which provides that at the end of the comment period, ADEQ shall provide a final permitting decision. Again, this is exactly what ADEQ did," the department's filing reads.
The Buffalo River Watershed Alliance, the Arkansas Canoe Club, Gordon Watkins and Marti Oleson -- who all file together as the "BRWA/ACC Intervenors" -- argued in their filing that C&H's request was unnecessary. They further asked that any remand of the permitting decision back to the department should not vacate or change the department's proposed decision to deny the permit.
Metro on 06/28/2018
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