Buffalo River Watershed Alliance
I thank the governor for his piece in this paper on Friday. I wondered where he stood on the commercial hog operation in the Buffalo River watershed. Now I know, and I'm deeply disappointed.
I share his views on private land use but wonder what in his opinion are the "rare circumstances" that would justify restrictions. He must oppose eminent domain, and it appears he would have opposed preserving the Buffalo River in the first place. Indeed, our national river came at a great cost--the private land rights of hundreds of Arkansans. (A good read is Stolen Water, Forgotten Liberties by Jenny Barnes Butler of Conway.) We forced people off their ancestral land for the greater good; now we insult them and all in the Natural State by not denying a large commercial operation that will eventually damage this natural treasure.
The governor claims the decisions of the Department of Environmental Quality are "scientifically and environmentally sound." I couldn't disagree more.
To read his piece one would think all the science is on the side of the hog operation and nothing but emotions are on the side of the river proponents. I remind him that geology is a science, and it is not on his side. I found his words to be arrogant and condescending.
As to his feelings about the Buffalo, I found his words to be empty and his actions insufficient.
Not mentioned was the economic impact to the state. I can't remember in my 67 years a case where so much was put at such great risk for so little benefit.
I feel the governor shows a lack of foresight and even political astuteness--and if I am wrong there, then there is the question of courage. I guess I need to work on those things myself since I voted for him.
DAVID T. JONES
Heber Springs
By Mike Masterson
Posted: April 18, 2017 at 2:27 a.m.
NWAOnline
I was surprised to see Gov. Asa Hutchinson's response on the Voices page last week to my open letter in a column that ran last April (republished two weeks ago). I'd appealed to his role as the chief protector of our Buffalo National River to stop the inevitable contamination from hog waste continuously being spread by C&H Hog Farms on fields along Big Creek, a major tributary of the Buffalo.
I'm sharing only three edited reactions to Hutchinson's letter from informed citizens and scientists who've invested years of research and personal resources toward protecting the country's first national river.
Science indeed leads
Gordon Watkins, head of the Buffalo River Watershed Alliance: "Many have been asking the governor to make the C&H owners whole by buying them out. Making this a 'property rights' issue only makes resolution more difficult. ... Because there was no public notice, ADEQ's errors went unchallenged until it was too late," he said.
"When the governor writes: 'Science, not emotion, must drive our approach,' he's parroting the Farm Bureau. Yes, science should indeed lead. Then he says, 'The science tells me there's no evidence of a release from the storage ponds.' Any scientist will tell him this is an invalid conclusion based on a single bore hole.
"Science does indeed show evidence of negative impact to Big Creek, whether from the ponds or, more likely, from the waste spreading fields. Hard data collected by the Big Creek Extension Research Team, the National Park Service and the U.S. Geological Survey, as well as geoscientist Dr. John Van Brahana, all are sounding alarms.
"Again, the Farm Bureau seems to be whispering in his ear and cherry-picking data ... . If the governor will read our 98 pages of comments he'll find plenty of facts and science-based arguments.
"The governor also says work has progressed on a watershed management (WMP) plan to help identify opportunities for protecting and enhancing the Buffalo watershed. At the last WMP meeting, Big Creek was conspicuously absent from the proposed list of priority streams where attention would be focused until public objections compelled the contractor to reluctantly include that major Buffalo tributary. At every turn, relevant state agencies are looking the other way rather than confronting the obvious source of the problem.
"Hutchinson says, 'the drilling study evaluated the integrity of C&H's pond liners.' That's mistaken. That study looked only at a single anomaly while specifically avoiding any comprehensive evaluation of pond integrity.
"Finally the governor says, '... public and private projects are now being advanced to focus on protection and preservation.' Yet he emphasizes their voluntary, 'nonregulatory' focus. Valid protection of the Buffalo requires regulatory changes."
Peer-reviewed science
UA geosciences professor emeritus John Van Branaha, an expert on karst geology, has worked closely with at least eight other scientists and specialists to voluntarily study potential environmental effects of the hog factory on the watershed.
Brahana cited his peer-reviewed scientific findings: "First water flows downhill, always following the path of least resistance. which in karst terrain is underground. Spreading fields underlain by karst receive feces and urine from 6,500 hogs.
"Groundwater samplings from wells and springs near the fields show increasing trends of contaminants. Dye tracings from selected sites close to the fields show rapid transmission of groundwater, typically 2,000 feet daily. Dye tests following heavy rains when groundwater levels are elevated show the flow moves beneath surface water divides to reach springs, wells and streams. The tests also show groundwater during high flow events moved to the Buffalo River downhill from where dye was input."
Brahana said such significant findings and more have previously been sent to the governor and others without being addressed. He also hopes the governor will show enough interest to invest an hour with him to review the documented science and related presentation he shared at the Osher Lifelong Learning Institute during our recent workshop together. Why wouldn't the governor?
Much science presented
Carol Bitting (aka the watershed warrior): "The governor writes he's made sure the public and regulatory agencies have all the facts. Specifically, he says he's directed funding toward two separate and impartial scientific studies around C&H Hog Farms.
"His statement is so similar to those of the Pork Producers' Jerry Masters and Evan Teague of the Farm Bureau that it sheds light on why he cites only two studies, while the ADEQ's own 1990s study of hog CAFOs in the Buffalo watershed is ignored.
"The algae photographs of last September reveal truth of the Buffalo's pollution. The Beautiful Buffalo River Action Plan excludes permitted facilities. Does the governor think we believe 6,500 hogs producing eight times the amount of waste as one human then spread over sinkholes and fractures year around doesn't make its way to the river?
"Many scientific documents have been submitted, including reputable scientific data. To base the scientific 'evidence' on two studies (each designed outside state agency handbook recommendations) while excluding all the relevant science here makes me wonder how, and why, the governor can release a statement such as this."
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Mike Masterson's column appears regularly in the Arkansas Democrat-Gazette. Email him at mmasterson@arkansasonline.com.
Editorial on 04/18/2017
Arkansasonline
By ASA HUTCHINSON SPECIAL TO THE DEMOCRAT-GAZETTE
As governor of Arkansas, I have a responsibility to protect the Buffalo River. As an outdoorsman, I have a personal interest in seeing the Buffalo River healthy and beautiful for my grandchildren. I take my responsibility seriously.
In a recent column, Mike Masterson penned an open letter asking me to block the renewal of the permit for C&H Hog Farms, which has its operation six miles from the Buffalo on the Big Creek tributary. Masterson invoked the name of his late uncle, John Paul Hammerschmidt, the Arkansas congressman whose love for the Buffalo led to its designation in 1972 as the nation's first national river.
I was elected to Congress from the same district as John Paul Hammerschmidt. I knew him well, and he inspired all of us to protect our natural heritage. He concluded that the Buffalo River watershed needed to be protected as a national park after his own vigorous research. Through his actions, he urged Arkansans to make decisions based upon the law, facts, and science.
It is important to note that only in rare circumstances is the state of Arkansas authorized to restrict how private landowners are to utilize their land. And the legislative restrictions on land use do apply to C&H Hog Farms. In order for the private landowner to operate such a facility, he is required to allow the state to restrict the use of his land through a rigorous regulatory process. To date, the hog farm has operated in a manner that satisfies all water-quality and land-use regulations that Arkansas and federal law require.
The monitoring and inspection of this facility to ensure that it is operating within the bounds of its permit is a priority for me as governor. Because of the farm's Big Creek location, I am committed to constant and complete oversight of this permit.
Science, not emotion, must drive our approach to protecting the Buffalo National River and the Buffalo River watershed. With that science-driven approach in mind, I have taken steps to be sure both the public and the regulatory agencies have all the facts. Specifically, I have directed funding toward two separate and impartial scientific studies around C&H Hog Farms.
First, I have extended the five-year survey of the University of Arkansas' Big Creek Research and Extension Team. Second, I have directed the Arkansas Department of Environmental Quality to use agency funds to contract a third party to initiate a drilling study near the storage ponds at C&H Hog Farms. The drilling study evaluated the integrity of C&H's pond liners because an imaging study conducted by the Big Creek team indicated the possibility of a release from the ponds. The independent investigators found no evidence of a release.
My love for our state and my passion to protect our water compels me to ensure that the studies are scientific and impartial. The studies on which the Department of Environmental Quality bases its decisions are, and will continue to be, scientifically and environmentally sound.
The science tells me that there is no evidence of a release from the storage ponds at C&H Hog Farms.
One good result from this understandably emotional debate is Arkansas' renewed awareness of the need to protect this valuable natural resource.
To be certain that we are doing all that we can to preserve the Buffalo, I formed the Beautiful Buffalo River Action Committee in 2016. This is a nonregulatory committee of five state agencies that have pooled resources to create a forum for those interested in the Buffalo River watershed. The committee has already held one quarterly meeting, and work has progressed on a watershed management plan that will help identify opportunities for protecting and enhancing the Buffalo River watershed.
The discussion has highlighted that awareness brings action and I have been notified that, with this renewed interest, public and private projects are now being advanced to focus on protection and preservation of the majestic river it is.
Like many rural and wild natural areas in our country, a wide range of impacts can create natural variations in river observations. Our natural systems are inherently resilient and adaptive. The efforts are focused on all impacts which may occur from development, community, tourism, and agriculture. With our increased awareness, we can responsibly strike the balance of preserving the Buffalo watershed and of basking in its beauty while we live and work there.
The Buffalo River is important to me as governor and as an Arkansan who has personally enjoyed the river for many years. I am committed to keeping the Buffalo a national resource for generations to come.
Asa Hutchinson is the 46th governor of the state of Arkansas.
Editorial on 04/14/2017
A national report ranked the Buffalo National River in northern Arkansas among America’s most endangered rivers Tuesday, citing concerns about a nearby large hog operation’s waste polluting the river.
In the report by American National Rivers, a river preservation advocacy group, the lower Colorado River was ranked the most endangered river on the list, and the Buffalo National River is No. 9 on the list. Rivers are chosen for the list based on the magnitude of the threat, the significance of the river to people and nature and how near a critical decision-point is in the coming year.
Following the publishing of the report, American National Rivers and its partners called on the Arkansas Department of Environmental Quality (ADEQ) and Gov. Asa Hutchinson to deny C&H hog farm’s operating permit renewal in order to safeguard clean water, the regional natural heritage and the river’s economic value.
“The America’s Most Endangered Rivers report is a call to action to save rivers that face a critical decision in the next year,” said Matt Niemerski, Director of Federal Policy for American Rivers. “Millions of gallons of animal waste are threatening the Buffalo National River, which is supposed to be protected for all Americans to enjoy. Now is the time to speak up to make sure decision makers uphold their responsibility to safeguard this special place for today’s communities and future generations.”
C&H HOG FARM CONTROVERSY
The Buffalo, the first national river, runs 153 miles through the Ozark natural forest in northern Arkansas. C&H hog farm, a confined animal feeding operation (CAFO), sits five miles from the edge of the Buffalo River near Big Creek and nearby to the Mt. Judea school. About 80,000 pigs a year are processed, and the operation generates waste equivalent to a city of 30,000 people. To manage the waste, the CAFO utilizes a nutrient management plan that involves spraying millions of gallons of liquid hog waste onto pastures and fields for fertilization, some of which lie in the floodplain.
Water quality indicators, including an unprecedented algal bloom in 2016, E. coli bacterial concentrations exceeding allowable limits and dissolved oxygen concentrations below allowable limits, suggest the Buffalo National River and its fish and wildlife are being negatively impacted by the nutrients produced by the CAFO.
“Last year’s huge algal bloom was further evidence of the Buffalo National River’s declining water quality caused by excessive agriculture run-off,” said Teresa Turk, co-founder of Ozark River Stewards. “It was heartbreaking to see and document.”
The fields that are used to spray the waste to fertilize the fields are believed to be located atop karst geology — which means the land has a thin topsoil above very porous rocky (in this case chert and limestone) ground — and would be unable to handle the amount of nutrient spray to properly filter the toxic bacteria from the manure in the soil. In a karst environment, ground water moves rapidly alongside surface water, and can be difficult to predict how and where it flows. So, there is concern that the waste being sprayed near Big Creek could seep into the ground water and pollute the Buffalo River, which is a federally preserved river.
“Nonpoint source impairment will continue to pollute American waterways until we recognize that concentrated animal feeding operations are actually concentrated animal waste operations that produce more untreated sewage than most ecosystems can handle,” said Lin Wellford, one of three grandmothers involved in a legal appeal for the so-called ‘permit to pollute’ the Buffalo National River watershed. “In the case of regions with fragile karst geology (a porous limestone), the impact of these industrial-scale operations is particularly devastating.”
However, the hog facility has been approved for all necessary permits by ADEQ to operate. In an environmental assessment, the two agencies that conducted it — the Small Business Association and Farm Service Agency — denied that the hog farm and its NMP fields sit atop karst geology.
A few independent studies led by UofA hydro-geologist Van Brahana claimed the agencies were incomplete assessments that only considered surface water.
THREATS TO RIVER STATUS
Alice Andrews, Conservation Chair at the Ozark Society, said she fears if faced with inaction, the Buffalo River will be placed on the 303(d) list of impaired streams under the Clean Water Act and EPA.
“I fear that sooner or later, if nothing is done about this CAFO, the magnificent Buffalo National River will no longer meet its designated use as ‘fishable/swimmable,’” she said, “and will lose the extraordinary resource values that led to its designation as a Wild and Scenic River, an Extraordinary Resource Water and an Outstanding National Resource Water.”
The Buffalo National River is one of the few remaining undammed rivers west of the Mississippi. It was designated as the nation’s first national river by Congress in 1972 to preserve its clean water and other outstanding values. The National Park Service is charged with managing the Buffalo River to, “preserve, conserve, and interpret a clear, clean, free-flowing river and its Ozark Mountain setting of deep valleys, towering bluffs, wilderness and pastoral landscapes.”
“As we approach the 50th anniversary of the Wild and Scenic Rivers Act in 2018, we must recommit ourselves as a nation to uphold safeguards for the Buffalo National River, and all federally protected rivers,” said Niemerski.
BUDGET CUTS
The report comes on the heels of proposed budget cuts to the Environmental Protection Agency and National Parks Service from the Trump Administration that will likely further complicate conservation efforts.
The Buffalo National River managers have felt the impacts of budgetary restriction for a number of years, causing staff shortages, which limit the ability of park biologists to monitor water quality and maintain the many campgrounds and access points along the river. The proposed 12 percent budget reduction for the National Park Service comes as tourism numbers approached record highs last year. In 2015, more than 1.46 million tourists visited the Buffalo National River generating $62 million and employing more than 960 people from tourism related activities.
Projected cuts of nearly one-third of the overall budget for the EPA pose a threat to river preservation efforts. These cuts to resources and staffing will make it harder to enforce current water safety standards that ensure clean water for recreationalists and protections for endangered species that depend on a healthy environment for their existence.
“We will continue to fight to rid the Buffalo National River watershed of the threat of potentially devastating pollution that is presented by the presence of the hog farm,” said Gordon Watkins, President of the Buffalo River Watershed Alliance.
Headquartered in Washington, D.C., American Rivers has protected and restored more than 150,000 miles of rivers through advocacy efforts, on-the-ground projects, and an annual America’s Most Endangered Rivers campaign since 1973.
For more information about about Buffalo River preservation efforts, visit www.buffaloriveralliance.org, the Buffalo National River Partners at bnrpartners.org or the Ozark River Stewards Facebook page. The Ozark River Stewards will be hosting a Float Protest over Memorial Day weekend, with details to be determined.
Travis Graves has hundreds of pictures that he says prove that over the last five years, hundreds of millions of fish have washed ashore along North Carolina's Neuse River, which runs from northwest Durham into the Albemarle and Pamlico sounds. Those fish kills, the Lower Neuse Riverkeeper says, can be traced to algae blooms that feed off nitrogen and phosphorus.
So last fall, when Hurricane Matthew flooded more than a dozen swine lagoons and several chicken farms in eastern North Carolina—all located within the Neuse River's hundred-year floodplain—sending millions of gallons of nitrogen-rich hog waste and phosphorus-laden chicken excrement into the river, river advocates hit their panic buttons.
The state's industrial hog farms were already damaging the Neuse by spraying waste onto fields near the river and its tributaries, they allege. But now, the river is in serious trouble.
On Tuesday morning, American Rivers listed the Neuse, along with Cape Fear River, as the seventh most endangered river in the United States. In its report—"America's Most Endangered Rivers 2017," which highlights "ten rivers whose fate will be decided in the coming year"—the national river conservation organization blamed the millions of gallons of untreated hog feces and urine that North Carolina hog farmers spray onto fields that drain into streams and groundwater, which contaminate the Neuse with nitrogen, antibiotics, and bacteria, as well Hurricane Matthew-related flooding that spewed animal waste into the Neuse.
And the problem's only going to get worse.
"The threat these facilities and their antiquated waste operations pose to our waters will only increase as the effects of climate change become more prevalent and North Carolina is subjected to more frequent powerful storms," the report states.
Smithfield Foods, the world's largest pork producer, which owns the vast majority of the more than two hundred thousand hogs living inside the Neuse floodplain, did not respond to a request for comment by press time.
There are currently sixty-two swine facilities that house more than 235,000 hogs and at least thirty poultry farms that house nearly two million chickens located within the Neuse's floodplain. Many of them, Graves says, were underwater in the days after Matthew battered the eastern part of the state.
"I saw about a dozen lagoons under water, and probably another ten poultry facilities where the barns were underwater," Graves says. "Even if the lagoons weren't breached, you could see that they had been completely flushed. The water in the lagoons was the same color as the floodwaters around it, not that usual pink color you see. All of that ended up right in the Neuse River and is contributing to that excessive nutrient pollution."
Upper Neuse Riverkeeper Matthew Star believes there's a solution. After Hurricane Floyd battered eastern North Carolina in 1999, the legislature authorized the Clean Water Management Trust Fund to provide $18.7 million for forty-three voluntary buyouts of hog and poultry operations located inside the Neuse's floodplain.
"Thirty-two of those would have flooded during Matthew," Starr says. "Think about that. That's a ton of waste that we prevented from getting into that river."
After Matthew, advocates are urging legislators to do the same thing.
In its report, American Rivers argues that "there is a simple and commonsense action that can be taken to reduce the threat to our water resources and communities": simply remove hog and chicken facilities from the Neuse floodplain.
"The opportunity to accomplish this may never be better than it is now, in the first legislative session following Hurricane Matthew," the report says. "The General Assembly must include funding to restore the Swine Buyout program and include language expanding it to all [concentrated animal feeding operations] in the floodplain as part of the Hurricane Matthew recovery bill."
"You shut down. Here's your money. It's that simple," Starr says. "And I want to be really clear. This is a voluntary program that is there for these facilities. After Hurricane Floyd, one hundred thirty facilities applied. This was a wanted program."
The N.C. Pork Council is amenable to such an approach. A spokesman told The News & Observer that the industry "would be supportive of voluntary efforts for a buyout."
Still, it's unclear whether the legislature will take the Neuse's place on Americans Rivers' list seriously enough to act. But Graves says that by this summer, the repercussions of Hurricane Matthew flooding the hog lagoons and chicken farms near the Neuse will be too intense to ignore.
"I have serious concerns over what kind of fish kill numbers we're going to see this summer," he says. "I'm anticipating it to be the worst summer for fish kills in the last five years. I'm really hoping this will take the industry in North Carolina out of its bubble a little bit and give it a national reference point. Not only is the river threatened, but also on a nationwide scale, this river is very much endangered."
And if the legislature fails to act?
"We're going to continue to see nutrient pollution in the lower Neuse. It's going to increase, as it has for the last thirty years," Graves says. "And that increase is going to continue to fish kills, which is going to hurt tourism, it's going to hurt the commercial fishing industry, and, ultimately, it's going to hurt the future health of our rivers. Ultimately, it could get to the point where places like Kinston and Goldsboro that draw their drinking water directly out of the Neuse River, we'll start to see nitrogen levels that are hazardous to humans."
This article appeared in print with the headline "The Neuse Is Sick."
Court Orders EPA to Close Loophole, Factory Farms Required to Report Toxic Pollution
By Waterkeeper Alliance
The DC Circuit Court ordered the U.S. Environmental Protection Agency (EPA) Tuesday to close a loophole that has allowed hazardous substances released into the environment by concentrated animal feeding operations (CAFOs) to go unreported.
"We applaud the DC Circuit Court's clear decision to enforce this vital environmental safeguard to protect public safety," said Earthjustice attorney Jonathan Smith, who helped argue the case before the court.
"In the words of the court, the risk of air emissions from CAFOs 'isn't just theoretical; people have become seriously ill and even died' from these emissions. But the public cannot protect itself from these hazardous substances if CAFOs aren't required to report their releases to the public. The loophole also prevented reporting of these toxics to local and state responders and the court held that plainly violated the law."
CAFOs are large-scale livestock facilities that confine large numbers of animals in relatively small spaces. A large CAFO may contain upward of 1,000 cattle, 2,500 hogs or 125,000 chickens. Such facilities generate a massive amount of urine and feces, which is commonly liquefied and either stored under the facility or nearby in open-air lagoons. This waste is known to release high levels of toxic pollutants like ammonia and hydrogen sulfide into the environment.
The court's decision closes a loophole that exempted CAFOs from the same pollutant reporting required of other industries to ensure public safety. Prior to the promulgation of this loophole at the end of the Bush administration in 2008, federal law long required CAFOs, like all other industrial facilities, to notify government officials when toxic pollution levels exceeded public safety thresholds.
"Corporate agricultural operations have always been well-equipped to report on hazardous substances," said Abel Russ of the Environmental Integrity Project. "Now they will once again be required to do so."
This ruling is the latest turn in Earthjustice's advocacy on behalf of environmental and animal advocacy groups including Waterkeeper Alliance, Humane Society of the United States, Sierra Club, Center for Food Safety and Environmental Integrity Project.
"People have a right to know if CAFOs are releasing hazardous substances that can pose serious risks of illness or death into the air near their homes, schools, businesses and communities," said Kelly Foster, senior attorney for Waterkeeper Alliance.
"This ruling ensures that the public will be able to obtain this information in the future and will hopefully spur EPA to start responding when hazardous substances reach toxic levels."
Nearly three-quarters of the nation's ammonia air pollution come from CAFOs. Once emitted into the air, this ammonia then redeposits on land or water, adding to nitrogen pollution and water quality impairments in places like the Chesapeake Bay.
"CAFO waste pollutes our air and waterways and creates dangerous food pathogens. This decision forces these operations to be transparent about their environmental impact," said Paige Tomaselli of the Center for Food Safety.
CAFOs can be terrible air polluters. People who live near them often suffer from constant exposure to foul odors and the toxic effects of ammonia and hydrogen sulfide. Low levels of ammonia and hydrogen sulfide can irritate the eyes, nose and throat and high levels can be fatal.
"This safeguard isn't just about protecting the environment; it's about making entire communities safe for the people who live in them," said Sierra Club staff attorney Katie Schaefer.
Unsurprisingly, CAFO pollution also severely impacts the animals raised at the CAFO.
"Animal factories force billions of animals to suffer dangerously high levels of toxic air pollution day after day for their entire lives," said Humane Society of The United States' Chief Counsel Jonathan Lovvorn. "This ruling helps shine a light on the horrors of factory farms and the hidden costs to animals, people and the environment."
KUAF Radio/NPR
American Rivers Designates the Buffalo National River Among the Most Endangered
By JACQUELINE FROELICH • APR 11, 2017
Listen to the report here
The national conservation group, American Rivers based in Washington D.C., has listed the Buffalo National River among the top ten endangered rivers in the United States. We query Arkansas Parks and Tourism about how this status might impair the states' tourism economy. We also talk with Teresa Turk, an independent scientist who has been monitoring water quality in the watershed. Teresa Turk will present new results from her Buffalo River water quality research April 25th, at the Boone County Public Library at 5:30pm.
Posted: April 11, 2017 at 4:30 a.m.
The nightmare we've expected ever since our state wrongheadedly permitted C&H Hog Farms to set up shop in our fragile Buffalo National River watershed is becoming reality, my friends.
The nonprofit American Rivers organization (americanrivers.org) in its annual study, "America's Most Endangered Rivers," has named the Buffalo as No. 9 on its Top 10 list for 2017, based on the potential this factory with 6,500 swine has to pollute the sacred river.
This, unfortunately, is the new national perception of those who understand at-risk rivers. We have no one but our own Department of Environmental Quality (wheeze) and a special-interest-manipulated state government to thank for this shameful development. Rivers have no money or political influence.
American Rivers, headquartered in Washington, D.C., since 1973 has protected wild rivers and restored damaged streams, in the process restoring more than 150,000 miles of U.S. rivers. Because our state wasn't caring enough to cherish this watershed, this is the reputation we're now projecting of the country's first national river.
Here, in part, is what American Rivers had to say: "The Buffalo River is one of the longest undammed rivers west of the Mississippi. It was designated as the nation's first national river by Congress in 1972 to preserve its clean water and other outstanding values.
"But today, a concentrated animal feeding operation [CAFO] feeding 80,000 hogs per year generates waste equivalent to a city of 30,000 people along a Buffalo River tributary. Despite public outcry, millions of gallons of hog waste are sprayed on fields and stored in manure ponds, threatening the river's clean water. The Arkansas Department of Environmental Quality must deny the project's permit for continued operation in order to safeguard this national treasure for today's communities and future generations."
American Rivers wrote: "In 2015, more than 1.46 million tourists visited the Buffalo National River generating $62 million and employing more than 960 people from tourism-related activities ... . The upper reach, flowing from the headwaters through the Upper Buffalo Wilderness to the boundary of Ozark National Forest, is protected as a Wild and Scenic River. From the national forest boundary to its confluence with the White River, the Buffalo is designated as a National River and managed as a unit of the National Park Service.
"... The Buffalo River supports more than 300 species of fish and wildlife including beaver, elk, black bear, smallmouth bass and catfish. The federally endangered gray bat, Indiana bat and Northern long-eared bat are found in the karst cave networks surrounding the river."
"... (CAFOs) are one of the largest contributors of pollutants to streams and waterways across the U.S., according to the Environmental Protection Agency (EPA). In 2013, the 6,500-head hog CAFO was quietly permitted and constructed by C&H Hog Farms Inc., unbeknownst to the public. The hog CAFO, including massive indoor feedlots and two manure-filled ponds, sits on a hill along one of Buffalo National River's main tributaries, Big Creek, less than six miles from the mainstem of the river.
"Each year, millions of gallons of liquid hog waste are sprayed onto pastures and fields, some of which lie in the floodplain. This manure spreading is particularly harmful in areas where topsoil is thin and the underlying geology is a porous limestone (karst) that is prone to fissures, sinkholes and rapid transmission of groundwater into the water table. Dye tracing studies around the CAFO have shown that water can travel under mountains across 13 miles of the watershed, due to the porous karst geology. Consequently, any contaminants in the manure fields or ponds are having far-reaching effects, including polluting groundwater wells and threatening endangered species. Water quality indicators, including unprecedented algal bloom in 2016, E. coli bacterial concentrations exceeding allowable limits and dissolved oxygen concentrations below allowable limits, suggest the Buffalo National River and its fish and wildlife are being negatively impacted by the nutrients produced by the CAFO.
"Already, paddlers, swimmers and [others] are seeing changes in water quality as algae covers miles of river bottom. Despite public outcry, elevated levels of E. coli bacteria noted in nearby streams by the National Park Service in 2015, and ample evidence of pollution in other areas where these types of facilities operate, the hog CAFO has continued to generate raw, untreated sewage that equals the output of a small city. Tourist-related businesses, such as float services, cabin and motel rentals, worry visitors will stop coming if the water continues to degrade."
As to what it advocates, American Rivers said: "Despite rising national protests and evidence of high E. coli levels and low dissolved oxygen on Big Creek and the Buffalo, the CAFO is seeking to change from a federal permit to a state permit that would allow it to continue to operate in perpetuity.
"In 2017, the Arkansas Department of Environmental Quality will consider the issuance of a Regulation 5 permit for this CAFO. The Buffalo National River flows in Arkansas, but it belongs to every citizen of our country."
Amanda Reilly, E&E News reporter
Published: Tuesday, April 11, 2017
A federal court tossed out a 2008 U.S. EPA rule exempting animal feeding operations from reporting pollution discharges.
In a win for environmentalists, a federal court today tossed a George W. Bush-era rule exempting animal feeding operations from certain pollution reporting requirements.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed with green groups that lawmakers never intended to give U.S. EPA the authority to exclude those operations.
Congress didn't "give the agency carte blanche to ignore the statute whenever it decides the reporting requirements aren't worth the trouble," Judge Stephen Williams, a Reagan appointee, wrote for the court.
The court also found that manure storage at livestock operations poses more than a "theoretical" risk to public health.
At issue is a rule that EPA adopted in December 2008 exempting all animal feeding operations from reporting releases of hazardous air pollution from animal waste under the Comprehensive Environmental Response, Compensation and Liability Act.
Typically, facilities covered by CERCLA have to report discharges of pollutants above certain thresholds to a National Response Center.
EPA's rule also exempted all but large concentrated animal feeding operations, or CAFOs, from reporting emissions to local and state emergency officials under the Emergency Planning and Community Right-to-Know Act.
The Waterkeeper Alliance, the Humane Society of the United States and other environmental groups filed the lawsuit, arguing that the rule put citizens at risk of breathing harmful ammonia and hydrogen sulfide.
EPA, though, said that requiring producers to report under CERCLA would be burdensome and fruitless because "local response agencies are very unlikely to respond" to reports of pollution. The government also argued that EPA lacked information on how to go about measuring emissions.
EPA noted that the statutes contained unrelated reporting exceptions, including one for releases of engine exhaust. The agency argued that it should be afforded deference under the Chevron legal doctrine because there was ambiguity over whether it could carve out new exemptions that weren't specifically written into the statute.
But Williams rejected those arguments, writing that Congress didn't mean for EPA to fashion new exemptions.
"Read together the statutory provisions set forth a straightforward reporting requirement for any non-exempt release," Williams wrote.
"Conspicuously missing," he added, "is any language of delegation, such as that reports be 'as appropriate,' 'effective,' 'economical,' or made 'under circumstances to be determined by the EPA.'"
Williams also rejected EPA's arguments that the environmentalists didn't have legal standing to sue because they couldn't show a concrete harm tied to EPA's reporting exemption. He agreed with the environmental groups that they have been harmed because they have been deprived of information about livestock operations (E&E News PM, Dec. 12, 2016).
The judge also slammed EPA's arguments about the fruitless nature of reporting: "We find that those reports aren't nearly as useless as the EPA makes them out to be," he wrote.
While acknowledging that it's difficult to measure releases from animal operations because emissions don't come out of a smokestack, Williams wrote that releases can pose a serious risk.
"Anyone with a pet knows firsthand that raising animals means dealing with animal waste," he wrote. "But many of us may not realize that as the waste breaks down, it emits serious pollutants — most notably ammonia and hydrogen sulfide."
When manure that's sitting in storage is agitated for pumping, it can stir up emissions of the hazardous air pollutants, Williams said.
The risk from manure storage "isn't theoretical," Williams wrote. "People have become seriously ill and even died as a result of pit agitation."
Along with vacating the 2008 rule, the court also dismissed as moot a lawsuit by the National Pork Producers Council challenging EPA's decision to require large CAFOs to report under the right-to-know law.
Judges Janice Rogers Brown, a Republican appointee, and Sri Srinivasan, an Obama appointee, heard the case with Williams.
In a concurring opinion, Brown said she agreed with the court's finding but said she was skeptical about some of the recent debate in legal circles about the two-step analysis that courts typically undertake under the Chevron doctrine.
Under the first step, courts look to whether Congress has been silent or ambiguous on an issue. The second step requires an analysis of whether an agency has acted reasonably.
While she agreed that the D.C. Circuit did the proper Chevron analysis in the case at hand, Brown said she worried that some scholars advocate leaving out the first step and simply looking at whether a federal agency action is reasonable.
"Congress is out of the picture altogether," she wrote. "Agencies are free to experiment with various interpretations, and courts are free to avoid determining the meaning of statutes."
"It isn't fair. It isn't nice," Brown wrote, quoting the Frank Sinatra song "Luck Be A Lady."
Leaving out the first step, she said, would implicate the separation of powers concerns that Justice Neil Gorsuch — then a judge on the 10th U.S. Circuit Court of Appeals — raised in an August 2016 concurring opinion. Gorsuch, who was sworn in for a seat on the Supreme Court yesterday, has questioned whether Chevron is still a valid legal doctrine.
Collapsing the two-step analysis, Brown said, was "yet another reason to question Chevron's consistency" with judges' duty to "say what the law is."
Sad news for citizens of North Carolina.
From the Rachel Carson Council
BREAKING!! Hog Pollution Protection Bill Heads to Governor’s Desk Sign here to tell Governor Roy Cooper (D-NC) to VETO it!!
Your efforts helped get bi-partisan opposition to HB 467 that protects the industrial hog industry and limits citizens’ rights to sue for damages to their homes from hog waste and pollution. We got large protests at the Capitol and good media coverage. But, we fell short. And passage of the Senate version is virtually certain. HB467/S460 will soon head to Governor Roy Cooper’s desk for signature into law. Gov. Cooper is our last hope to stop this giveaway to big pork. Sign our new petition directly to him here: http://petitions.moveon.org/sign/gov-cooper-veto-the-big?source=c.em.mt&r_by=4205069. Tell Gov. Cooper he MUST VETO this outrageous bill that limits the rights of citizens to protect their homes – a bill that harms poor and minority North Carolinians the most. Then forward our petition to friends, colleagues, and neighbors, everyone you know! This bill is an assault on environmental justice and on the fundamental freedoms of all Americans, not just North Carolinians. We MUST make our voices heard: http://petitions.moveon.org/sign/gov-cooper-veto-the-big?source=c.em.mt&r_by=4205069 After you sign (and personal comments help), call Governor Cooper’s office directly at 919-814-2000 to share your opposition and say that you will be looking for his VETO!!
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