Buffalo River Watershed Alliance
Eureka Springs Independent
Cargill defends C&H hog farm Becky Gillette Wednesday, December 10, 2014 Cargill, the international ag conglomerate contracted to purchase pork from the C & H Hog Farm located in the Buffalo National River (BNR) watershed, said owners of the 6,500-head swine operation are responsible stewards of the environment. “The farm is owned by three local families who have resided in rural northwest Arkansas for eight generations, farmed the land for half a century and raised hogs for more than a decade,” Mike Luker, president of Cargill Pork said. “They grew up near the mountain community of Mount Judea, learning to swim in local creeks and fish in local ponds, all the while producing food for others.” Luker said in 2013, with a state-approved permit in hand, the three families of C&H expanded hog production by building a farm incorporating the latest design elements, including environmental safeguards exceeding state or federal government requirements. The farm houses 2,500 Cargill-owned sows and up to 4,000 piglets. The piglets stay on the farm for about 21 days before being weaned and transported to farms outside Arkansas to be raised for pork. “Additionally, the U.S. Environmental Protection Agency spent three days on the farm, and its report indicated that nothing noteworthy was found,” Luker said. “C&H has been a model farm for the more than a year it’s been operating. “Cargill understands the importance of being environmental stewards who protect and conserve resources used to produce food. Last spring, our Cargill Pork leadership team embarked on an outreach effort in Arkansas and met with many people and organizations to hear from them regarding concerns about the farm,” Luker said. “We listened, and learned about the passion for the Buffalo River. We came away believing all sources impacting Buffalo River water quality, present and future, must be addressed. We are working with C&H to further enhance the environmental safeguards already in place. Synthetic liners and covers will be added to manure ponds; we have implemented a permanent moratorium on hog facility expansion in the watershed, and we support the state’s approach for making decisions based on science and facts.” Luker said at Cargill Pork, they believe various uses of land, water and other resources can continue to successfully coexist in the Buffalo River watershed, as they have for generations.
Environmental victory may have national implications Becky Gillette Wednesday, December 10, 2014 Environmental groups who filed a federal lawsuit regarding the failure of the Small Business Administration (SBA) and the Farm Service Agency (FSA) to do an adequate environmental study before approving government loan guarantees for a 6,500-head confined animal feeding operation in the Buffalo National River watershed have won a victory not just for the BNR, but possibly for areas affected by similar CAFOs across the country. D. Price Marshall, U.S. District Judge for the Eastern District of Arkansas, ruled Dec. 2 that federal agencies arbitrarily and capriciously guaranteed loans to the C&H Hog Farm near the BMR by failing to take a hard look at environmental impacts and not following proper procedures to protect threatened and endangered species. “We are really excited about this decision,” said Earthjustice attorney Hannah Chang, one of the attorneys in the lawsuit that resulted in a ruling that the National Environmental Policy Act (NEPA) was violated when the SBA and the FSA failed to consider environmental impacts when approving taxpayer funded loan guarantees for the C&H facility. “If they are going to approve loan guarantees like this, they at least have to consider environmental impacts, involve the public and get comments before approving those dollars. That is a big step forward. They should have been doing this all along.” Chang said if the ruling is not appealed, it would mean that nationwide those agencies will be called to meet certain standards they have not been applying to loan guarantees for CAFOs. “It looks to us based on their arguments that the SBA didn’t think it was necessary to review environmental impacts,” Chang said. “The judge’s decision says, ‘Actually, you do.’ That should have an impact on similar scenarios around the country. I don’t know how many CAFO loans they are approving. But to the extent they are approving CAFO loans, they need to follow the law.” Chang said the court saw the federal government agencies’ actions as a disdain and complete disregard for the laws that protect the environment. “We believe the court’s decision will help to set things straight in this debacle that has put more than $3.6 million in federal taxpayer dollars on the line to support a massive swine factory farm upstream of a treasured national resource.” Who sued and why The lawsuit was filed by the Buffalo River Watershed Alliance, the Arkansas Canoe Club, the Ozark Society and the National Park Conservation Association. Dane Schumacher, a member of the BRWA board, said the lawsuit was focused on the approval of federal taxpayer money for the purchase of 23 acres and the construction of gestation and farrowing barns for C & H Hog Farm and the gross inadequacies of the environmental assessment required as part of the loan process. These loans were approved without notifying the BNR National Park officials. Few people knew about the large new CAFO until after it was built. Schumacher said it was a welcome surprise that the Arkansas lawsuit could have national implications for others facing similar CAFOs, which produce large amounts of foul smelling wastes that environmentalists contend can contaminate air and groundwater, and harm people’s health. “This could affect the status quo for CAFOs across the country,” Schumacher said. “The judge’s ruling obviously concurred with what we stated in our claims. Now they have to go back to the beginning and look at any environmental consequences from this swine facility.” Schumacher said the agencies would have to look at facts such as 9 spray fields located on karst terrain and near a tributary to the Buffalo River, Big Creek. These fields are receiving raw liquid wastes making surface to groundwater contamination a high risk. There are also spray fields located near the Mount Judea School that could impact school children and teachers, and an endangered species of gray bat lives near the facility. “None of that was included in the environmental assessment,” Schumacher said. “One of the things the federal agencies should have done and didn’t do was provide notice of the proposed loan guarantees in the local paper. Hopefully, now they will open up a comment period, and the public can weigh in and express their opinion on the issue. It means they are going to have to go back and do what they should have done in the beginning.” She said the ruling makes it a very different picture from 2012 when the facility was quietly approved by the Arkansas Department of Environmental Quality (ADEQ).
Environmental, Energy, and Water Blog
Mitchell Williams Law Firm THE BUFFALO RIVER/HOG FARM FEDERAL DISTRICT COURT DECISION: TRANSACTIONAL LESSONS?
Posted December 10, 2014 Author: Walter G. Wright
United States District Judge D. P. Marshall, Jr. of the Eastern District – Arkansas, in a December 2nd decision (“Order”) determined loan guarantees by two federal agencies to a swine farm in the vicinity of the Buffalo National River were provided without fulfilling certain National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) procedural requirements. Buffalo River Watershed Alliance, et al. v. Department of Agriculture, No. 4:13-CV-450 DPM (E.D. Ark.). Judge Marshall’s Order has received national attention because it involves the iconic Buffalo National River.
The suitability of the C & H Hog Farms, Inc. (“C & H”) swine farm to operate in the area and the applicable state regulatory requirements had been the subject of significant discussion. However, the Arkansas permitting requirements applicable to the swine farm were not an issue in the federal lawsuit. Instead, the plaintiff environmental groups, Buffalo River Watershed Alliance, Arkansas Canoe Club, National Parks Conservation Association and Ozark Society, (whose representation included Little Rock lawyer Hank Bates) challenged the federal Farm Service Agency (“FSA”) and Small Business Administration (“SBA”) financial guarantees arguing that certain assessment and/or notice requirements required by NEPA and the ESA were not fulfilled.
The use of NEPA and to a lesser extent the ESA to challenge federal financing activities associated with the C & H facility provides a reminder of both the scope of these two federal statutes and the corresponding procedural mandates. Equally important, these procedural mandates are not limited to large public works or major private sector development projects. Even tangential federal involvement in what may be perceived as a mundane or routine activity can provide grounds for challenge if the procedural requirements of these federal statutes are not met. The outcome of Judge Marshall’s decision arguably provides a further important lesson. Both the federal agency and the affected private sector participant must ensure that procedural (documentation/notice) requirements (particularly those mandated by NEPA) are not perceived as an afterthought.
Background
C & H began operation along Big Creek near the Buffalo National River pursuant to an Arkansas Department of Environmental Quality (“ADEQ”) permit. Nine of the farm’s waste-application fields are stated to be on Big Creek, which is one of the Buffalo National River’s tributaries. The facility is the first large concentrated animal-feeding operation in the Buffalo National River Watershed to receive a permit from the ADEQ. In order to receive a permit, the facility had to prepare a plan for land application of the generated waste on the various fields.
C & H applied for $3.6 million in loans from Farm Credit Services of Western Arkansas (“Farm Credit”). In order to obtain the loan, C & H was required to obtain loan guarantees from SBA and the FSA. The entrance of the two federal agencies into the transaction potentially invoked an obligation for them to undertake certain NEPA and ESA procedural requirements.
National Environmental Policy Act
NEPA established in 1970 a supplemental mandate for Federal agencies to consider the potential environmental consequences of their proposals, document the analysis, and make this information available to the public for comments prior to implementation. The environmental protection policy established in NEPA, Section 101, is supported by a set of “action forcing” provisions in Section 102 that form the basic framework for Federal decision-making and the NEPA process.
The NEPA process requires different levels of environmental review and analysis of Federal agency actions, depending on the nature of the action. There are three types of review under NEPA: categorical exclusions (“CX”), environmental assessments (“EA”), and environmental impact statements (“EIS”).
An EIS is a detailed analysis of actions presumed to have significant environmental impacts, and is followed by a Record of Decision. An EA is a concise public document that briefly provides sufficient evidence and analysis for determining whether to make a Finding of No Significant Impact (“FONSI”) or prepare an EIS. CX refers to a category of actions which do not individually or cumulatively have a significant effect on the human environment and do not require an EA or EIS.
NEPA requires federal agencies to prepare a detailed statement of environmental impact (i.e., an Environmental Impact Statement) for “major Federal actions” significantly affecting the quality of the human environment.” Therefore, whether an EIS is required requires an affirmative response to two questions:
Is there a federal action? Individually or cumulatively significantly affecting the human environment?
The Plaintiffs argument that NEPA was violated was primarily based on their position that the SBA and FSA failed to comply with the required procedural steps to determine whether an EIS should be prepared. As to question (1), it is important to recognize that NEPA can potentially encompass both federally financed and privately financed projects. Federal “action” could be funding, permitting, or many other types of federal involvement. The SBA argued that providing the guaranty of C & H facility did not constitute a NEPA federal “action.” Judge Marshall rejected this argument citing the federal agency’s own regulations.
The FSA and SBA’s loan guarantees resulted in question “1” being answered in the affirmative (i.e., NEPA federal “action”). The agencies were, therefore required to undertake some level of NEPA review. An affirmative answer to question “2” would require the preparation of an EIS. Nevertheless, whether or not an EIS should have been prepared was not an issue in the lawsuit. Instead, the question was whether the agencies adequately and/or correctly assessed and publicized potential environmental impacts. Judge Marshall’s decision identified deficiencies issues such as:
Failure of the FSA EA to reference: Buffalo River Big Creek Mt. Judea School Absence of rationale for conclusion that ADEQ mitigation measures would address impact Failure to publish guaranty notice in local paper Failure to conduct environmental review.
NEPA is a procedural law. It does not dictate a certain substantive result. A project regardless of the merits can proceed as long as the various NEPA procedural requirements are fulfilled. The potential impacts must simply be identified. However, the determination of procedural deficiencies in regard to the loan guarantees was a NEPA violation prompting the Court to issue an injunction.
Endangered Species Act
The ESA forms the basis for federal protection of listed threatened or endangered plants and wildlife. The federal statute has provisions that can impose obligations on federal and/or private activities that involve species that have been identified by the federal government as endangered or threatened.
Section 7 of the statute applies solely to federal agencies. It requires that the federal agencies consult with the United States Fish and Wildlife Service (“Service”) to ensure that any actions authorized or funded or carried out by the agency are not likely to “jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of lands determined by the Service to be critical habitat.” A Section 9 prohibition against the “taking” (a broadly defined term) of listed endangered species applies to both private and federal activities.
Of course, various types of federal activities (such as funding, permitting, etc.) are potentially relevant to private sector projects. In other words, either Section 7 or 9 can potentially constitute a federal nexus to a private project in the appropriate circumstances.
The Order notes that the FSA had written the Service asking about any potential effect of the C & H facility on endangered species in the area. The Service responded that the Gray Bat lived in caves and forages around the C & H facility. Further, the Service suggested some potential mitigation steps in highlighted areas for further investigation. The Service cautioned that the response was informational and not a “blessing.”
The Order concludes that the FSA and SBA were required by the ESA to ensure that their actions would not hurt the Gray Bat. The Gray Bat was stated to forage along the river’s tributaries (including Big Creek). The Gray Bat was also stated to be found in caves along the Buffalo River (including at least one near C & H) potentially triggering the potential applicability of the ESA.
Both the FSA and SBA argued that their guaranties were not actions within the reach of the ESA. Judge Marshall concluded in regards to this issue: This argument again understates the role of the guaranties. They were essential for C & H’s financing. And C & H had to finance $3.6 million to start the farm. The federal Agencies knew that C & H would bring several thousand swine into the Buffalo River watershed. In the circumstances, the Agencies were required by law to ensure that C & H didn’t jeopardize any endangered species. The Small Business Administration made no attempt to comply with the Act. The Farm Service Agency began consulting informally with the Fish and Wildlife Service, but then abandoned any collaboration. The Endangered Species Act required more consultation by both the Small Business Administration and the Farm Service Agency. 50 C.F.R. §§ 402.13 & 402.14. And their insufficient consultation violated the law. …
The Order’s conclusion is not that the Gray Bat would necessarily be adversely affected by the C & H facility. Instead, the Court was not satisfied that this potential issue was adequately resolved and/or documented by the federal agencies.
Lessons?
Any private project or activity that potentially has a federal nexus should be diligent in determining whether NEPA or the ESA potentially applies. If so, ensuring the appropriate level of effort to meet the procedural requirements will be prudent. Suggestions might include:
1) A federal agency may be responsible for NEPA/ESA procedural compliance. Nevertheless, the private sector project proponent should ensure that the procedural requirements (including required public notices) are adequately addressed. Some federal agencies are more diligent at addressing such issues than others.
2) NEPA/ESA issues should be addressed as early as possible. They should not be perceived as an afterthought. A substantive project decision that predates a required NEPA review may be viewed as suspect.
3) Documentation matters. Vague, incomplete or speculative analysis provides opportunities for opponents to argue there are procedural gaps. If so, a court will enjoin the activity until addressed.
4) Determine in advance whether ESA endangered or threatened species may be potentially impacted by the proposed activity. Particularly important will be whether or not designated critical habitat may be affected. Ensure relevant procedural matters are addressed and conclusions
Arkansas Democrat Gazette
The judge rules By Mike Masterson U.S. District Judge D. Price Marshall has ruled two federal agencies clearly violated their own regulations and environmental laws by guaranteeing $3.6 million in loans that allowed the controversial C&H Hog Farms to take root in the Buffalo National River watershed at Mount Judea. And I suspect the wise judge is no more an environmental radical than me. His injunction order issued last week was based solely on what he deemed was the arbitrary, improper and illegal way the USDA's Farm Service Agency and the Small Business Administration blew off their obligations to thoroughly assess the potential environmental impact of a hog factory housing up to 6,500 swine before guaranteeing its taxpayer-supported loan. As a result, the court enjoined the agencies from making payments on the loan guarantees, allowing them a year to come into compliance with laws. "The public interest is best-served by ensuring that federal tax dollars aren't backing a farm that could be harming natural resources and an endangered species," the judge wrote. This means both agencies now have a year to prepare satisfactory and thorough reports that analyze the potential environmental impact to this sensitive region from the factory farm they brought into existence through their loan guarantees. The plaintiffs in this case consisted of local, state, and national conservation groups represented by environmental law firm Earthjustice in New York and attorneys Hank Bates and Hannah Chang. The court found both agencies acted capriciously by simply failing to examine potential environmental effects of creating, in this ecologically sensitive watershed, the first hog factory permitted under the state's new General Permit. The agencies also failed to properly notify the public or follow requirements that protect threatened and endangered species like the gray bat. Responses from plaintiff groups gushed forth following Price's decision. In a press release, Chang said: "The court saw the federal government agencies' actions for what they were--a disdain and complete disregard for the laws that protect our environment. We believe the court's decision will help to set things straight in this debacle that has put more than $3.6 million in federal taxpayer dollars on the line to support a massive swine factory farm upstream of a treasured national resource." Robert Cross, president of the Ozark Society, said his group was satisfied by the decision. "The flaunting of federal regulations by the Farm Service Agency and the Small Business Administration in the loan guarantee process that allowed the construction of C&H Hog Farms was a severe blow to the people of Arkansas and the nation who believe in the protection of our unique and beautiful natural resources such as the Buffalo River. The decision can undo only some of the damage done, but it will hopefully serve as a message to others who consider similar egregious acts in the future." Bob Allen of the Arkansas Canoe Club said: "It isn't a question of if, but rather when and how much, pollutants from the hog factory, including excess nitrogen, phosphorous and bacteria, will make their way to the Buffalo National River. The court's decision today means that the federal government will actually have to consider the environmental impacts of the hog factory that it made possible--something the involved agencies should have done from the very start." Emily Jones of the National Parks Conservation Association called the order a vital step forward in helping protect the river. "The Buffalo River belongs to the nation and the American people for this and future generations to enjoy and its protection is the responsibility of the federal government. This ruling squarely calls into question the adequacy of the Farm Service Agency's and Small Business Administration's prior environmental review, and requires that both agencies undertake the procedures necessary to ensure adequate protections of this national treasure." On page 5 of his order, Judge Marshall specifically addresses the fact that the factory generates about 1,780,000 gallons of waste each year stored in two small settling lagoons beside the barns. "The ponds seep," he writes. "It's uncertain how much waste water will seep out, but C&H's engineers estimated that several thousand gallons a day could. Each year in the spring and in the fall, C&H plans to drain the ponds. After testing nutrient levels in certain nearby fields, C&H will spray the water on them. ... The Buffalo River watershed is characterized by karst geology--underground limestone which has been eroded over time." Therein the judge identifies the problem caused, not by a decent Newton County family of caring and responsible hog farmers, but by our state's Department of Environmental Quality (cough) that wrongheadedly permitted this factory in the state's most environmentally sensitive region. Dr. John Van Brahana and his volunteers continue to show how rapidly and far subsurface water flows from the areas around this factory.
Arkansas Times
Hog manure talks; environmentalists walk on Buffalo River protection rule Posted By Max Brantley on Fri, Dec 5, 2014 at 11:07 AM
A report from the scene indicates supporters of a rule to ban more medium and large concentrated hog feeding operations in the Buffalo River watershed faced a barrage of hositle questions from Farm Bureau advocates and the rule was headed to defeat. Public Health and Agriculture committees met jointly on the rule, aimed at avoiding another C and H Hog Farm, now hiousing 6,500 swine, in the Buffalo watershed. Opponents fear both groundwater contamination and flooding that could overflow waste pits, along with the smell of such operations in the area, heavily visited by tourists attracted to the national river. The proposed rule from the Pollution Control and Ecology Commission required approval from 11 members of the House Public Health Committee and 5 from the Senate committee. A quorum of the committees seemed lacking, which doomed the rule, along with scant support from members. UPDATE: No vote. Which means no rule. Which means a six-month moratorium on such operations granted in October is the last remaining protection for the Buffalo River. To date, the major instigator of CAFOs, Cargill, has said it has plans for no more manure factories in that particular watershed. The good news is that a recent federal court ruling is likely to make future operations more difficult. Judge Price Marshall said federal environmental law requires a better review of potential impact that two federal agencies did in guaranteeing loans for the existing hog farm. A meaningful review seems unlikely to clear a path for many such operations in such a sensitive area.
Judge says hog farm loans illegal; Orders environmental study Posted: Wednesday, December 3, 2014 5:00 pm By DAVID HOLSTED davidh@harrisondaily.com
In a decision that was lauded by several environment groups, a district judge has ruled that federal agencies illegally guaranteed loans for a factory hog farm in the Buffalo River watershed. The decision came in a lawsuit naming as plaintiffs the Buffalo River Watershed Alliance; the Arkansas Canoe Club; the National Parks Conservation Association; and the Ozark Society. Defendants were the Department of Agriculture, the Small Business Administration and the Farm Service Agency. District Judge D. Price Marshall of the Eastern District of Arkansas, in a 17-page ruling filed on Dec. 2, found that the federal agencies failed to take a hard look at environmental impacts that would result from the C&H Hog Farms near Mt. Judea. The agencies also failed to follow proper procedures to protect threatened and endangered species potentially affected by the facility. According to a press release from Earthjustice, a nonprofit environmental law organization that worked with local attorneys on the issue, “the Court found that the federal agencies arbitrarily and capriciously guaranteed loans to the C&H factory farm near the Buffalo National River....” C&H Hog Farms is a 6,500-pig factory farm located in Mount Judea on Big Creek, a major tributary of the country’s first national river, the Buffalo National River. The factory farm is under contract with Cargill, an international producer and marketer of agricultural products. In his ruling, Marshall said, “The Farm Service Agency says it assessed the environmental issues and its administrative record supports its findings that C&H wouldn’t significantly affect the environment. The Small Business Administration didn’t assess the farm’s environmental effects and says the law didn’t require it to.” Marshall later noted that the Farm Service Agency’s final environmental assessment did not mention the Buffalo River or Big Creek. Nor did it mention the nearby Mt. Judea school. “The Court saw the federal government agencies’ actions for what they were undefined a disdain and complete disregard for the laws that protect our environment,” Earthjustice attorney Hannah Chang was quoted in the press release. “We believe the Court’s decision will help to set things straight in this debacle that has put more than $3.6 million in federal taxpayer dollars on the line to support a massive swine factory farm upstream of a treasured national resource.” The Daily Times contacted Chang at her New York City office. According to Chang, the immediate ramifications of Marshall’s ruling is that the federal agencies are prohibited from making any payments on the loans until they do the required environmental studies. The court’s order, Chang went on to say, sets a one-year deadline for the study. Chang emphasized that the study must include the public being notified of any informational meetings. The agencies failure to properly conduct an environmental study was a violation of the law, Chang said. “The lack of adequate public notice is just one of a number of egregious failures,” Earthjustice said in its press release,”on the part of the state and federal government to ensure that this facility will not have detrimental impacts on the exceptional natural resources of the Buffalo River watershed. Marshall’s ruling understandably resulted in positive responses from the plaintiffs. “The Court’s decision today,” said Robert Cross, a board member of the Arkansas Canoe Club, “means that the federal government will actually have to consider the environmental impacts of the hog factory that it made possible undefined something the involved agencies should have done from the very start.” Emily Jones, Senior Program Manager of the National Parks Conservation Association, considered the ruling an important step forward for the protection of the Buffalo River, the country’s first national river. “The Buffalo River belongs to the nation and the American people for this and future generations to enjoy and its protection is the responsibility of the federal government,” Jones said. Robert Cross, president of the Ozark Society, called the flaunting of federal regulations by the Farm Service Agency and the Small Business Administration a severe blow to the people of Arkansas and others who believe in the protection of our natural resources. “The decision can undo only some of the damage done,” Cross said, “but it will hopefully serve as a message to others who consider similar egregious acts in the future.” Speaking with the Daily Times, Dane Schumacher, a Buffalo River Watershed Alliance board member, expressed her satisfaction with Marshall’s ruling. She was hopeful that it would mean the laws that are in place now will be followed. Schumacher had been disturbed that the hog farm had been put in place without proper public notice or input, so the judge’s ruling that public meetings be held was encouraging. Schumacher was heartened by the cooperation between all the environmental groups during the past two years in working toward a resolution. “We just wanted to see what happened without jumping to conclusions,” she said. “We just wanted to have a fair assessment.”
Greenwire
Federal loan for Ark. hog farm violated NEPA, judge rules
Tiffany Stecker, E&E reporter Published: Wednesday, December 3, 2014
A federal judge ruled yesterday that the Department of Agriculture and the Small Business Administration violated environmental laws by providing $3.6 million in federal loans to a sprawling hog farm in northwest Arkansas. Judge D. Price Marshall in U.S. District Court for the Eastern District of Arkansas faulted the agencies for providing loans to C&H Hog Farms Inc., whose 6,500 swine are near a tributary of the Buffalo National River. At issue is C&H's successful 2012 application for $3.6 million in loans from Farm Credit Services of Western Arkansas. Farm Credit needed additional assurances and applied for loan guarantees from the Small Business Administration and the Farm Service Agency. SBA guaranteed about 75 percent of a $2.3 million Farm Credit loan without assessing the farm's impact on the environment, Marshall said. Although FSA reviewed documents from state environmental regulators and sought guidance from the Fish and Wildlife Service, the farm agency misstated or left out crucial information in its environmental impact statement. FSA backed 90 percent of a $1.3 million loan. "We are hopeful that the court's decision will result in a more thorough consideration by the U.S. Department of Agriculture's Farm Service Agency and the U.S. Small Business Administration of the effects this swine facility, and others like it, have on local communities as well as on national treasures like the Buffalo River," said a statement from Dane Schumacher, a board member of the Buffalo River Watershed Alliance. The alliance was a plaintiff in the case with the Arkansas Canoe Club, National Parks Conservation Association and Ozark Society. The Buffalo River Watershed Alliance was represented by the environmental nonprofit Earthjustice. The plaintiffs said the agencies violated the National Environmental Policy Act, the Endangered Species Act and other laws by not carrying out a full environmental impact statement before issuing the loan guarantees. Large animal-feeding operations can potentially release manure in streams, adding nutrients to the water that promote the growth of harmful algae blooms. The conservation groups filed suit in August 2013, before the farm opened. Justice Department attorney Barclay Samford said that the farm satisfied environmental assessment requirements under an animal feeding operation permit issued by the state of Arkansas. The permit requires the operators to conduct soil quality testing and respect a buffer zone between the farm and the waterway. The state has the authority to determine the environmental assessment in this case, said Michael Formica, chief environmental counsel with the National Pork Producers Council, which was not involved in this case. In addition, the 6,500-head figure is misleading, as 4,000 of those are piglets who will not stay on the farm. FSA declined to comment on the decision. SBA is consulting with DOJ on whether to appeal, said Miguel Ayala, a spokesman for the agency
Politico
JUDGE: TWO USDA AGENCIES ILLEGALLY GUARANTEED LOANS: A U.S. District Court Judge for the Eastern District of Arkansas has ruled that two federal agencies, the USDA Farm Service Agency and the U.S. Small Business Administration, guaranteed loans to an industrial hog farm that potentially adversely impacted the environment surrounding the facility.
Court Finds Federal Agencies Ignored NEPA In Guaranteeing Loans For Hog Farm Above Buffalo National River Submitted by Kurt Repanshek on December 3, 2014 - 2:09am A federal judge has blocked loan guarantees for a commercial hog operation upstream of the Buffalo River until thorough environmental reviews are conducted./State of Arkansas Federal loan guarantees needed to ensure financing for a commercial hog operation upstream of the Buffalo National River in Arkansas were inappropriately approved by federal agencies that failed to adequately review the project's potential environmental impacts, a judge has ruled. While the ruling (attached below) handed down Tuesday by U.S. District Judge D. P. Marshall, Jr., won't shut down C&H Hog Farms, it does require the Small Business Administration and the Farm Service Agency to go to the farm and "take the hard look at C&H's environmental consequences that they should have in the beginning. And if that hard look requires the Agencies to put conditions on their guaranties, then it's likely that C&H will comply with those conditions. Otherwise, the farm will risk its relationship with the lender." The ruling was hailed by a handful of environmental and conservation groups that fear wastes from the farm, which began operations in 2013 and now has roughly 6,500 pigs on the property that are thought to generate approximately 1.8 gallons of wastes annually, will escape from containment ponds and treatment facilities and contaminate the watershed that feeds into the Buffalo River, the nation's first national river. “This is a big win, this is a really big win for us. What it means is basically what we’ve been saying all along, that those agencies didn’t follow the law when they guaranteed the loans," Hannah Chang, an attorney with Earthjustice, which represented the groups, said Tuesday evening in a phone call from New York. It's possible, she said, that the hog operation wouldn't have received the funding it needed had the two agencies followed the National Environmental Policy Act and carefully evaluated the environmental risks, as they should have, before guaranteeing the $3.6 million in loans the farm obtained from Farm Credit Services of Western Arkansas. Judge Marshall said as much in his ruling, noting that "the legal premise of each guaranty was that C&H couldn't otherwise obtain financing on reasonable terms. C&H had to, and did, borrow $3.6 million to start this farm. These statutes, coupled with the necessity of the large loans, make it substantially unlikely that C&H would have come into being absent the guaranties. Without the guaranties, there would've been no loans. Without the loans, no farm." The Buffalo River travels through the heart of the Ozark Mountains in northwestern Arkansas, and runs beneath magnificent cliffs that in places rise nearly 700 feet above the river's clear, quiet pools and rushing rapids. One hundred thirty-five miles of the Buffalo comprise the national river, which attracts more than one million visitors each year who float the crystal waters, camp on the gravel bars, and hike the trails – generating $38 million toward the local economy. The C&H facility is located on the banks of Big Creek in Mount Judea, Arkansas. Under a contract with Cargill, Inc., an international agricultural and food conglomerate, C&H confines approximately 6,500 pigs at a time making the operation the first of its size and scale in the Buffalo River watershed. According to the plaintiffs in the case, the pigs' manure and the farm's wastewater is collected in open-air storage ponds on site and spread onto approximately 630 acres of land surrounding the farm and adjacent to the banks of Big Creek. These manure application fields are less than six miles upstream from Big Creek’s confluence with the Buffalo National River. The hog farm is located in a region of karst geology, which is is composed of easily dissolved rocks, such as limestone and dolomite. Via sinkholes and underground caves in the geology, groundwater can flow miles very quickly. In the National Park System, karst geology is perhaps mostly visibly connected to Mammoth Cave National Park in Kentucky, but it can also be found along the Buffalo National River and at Ozark National Scenic Riverways in Missouri. When the groups -- the Arkansas Canoe Club, Buffalo River Watershed Alliance, National Parks Conservation Association, and The Ozark Society - brought their lawsuit last year, they argued that the loan guarantees to the hog facility hinged on a flawed environmental review process that violated the law and did not follow the U.S. Department of Agriculture's own regulations. Judge Marshall agreed. "The Farm Service Agency and the Small Business Administration have each interpreted the NEPA to cover its guaranty to C&H," he wrote in the 17-page ruling. "But neither Agency took the required hard look into C&H's environmental impact. While the legal analysis for each Agency is a bit different, the conclusion is the same: the federal Agencies arbitrarily and capriciously guaranteed C&H's loans." The judge gave the agencies one year to conduct the requisite studies; until they are completed, they cannot guarantee the outstanding loans if the hog farm were to default on them. "Injunctive relief is proper here. The Endangered Species Act provides for it," Judge Marshall wrote, noting the presence of the Gray Bat, an endangered species, in the area. "The Court has considered the relevant factors and finds that an injunction is the proper remedy for the National Environmental Policy Act violations, too. Plaintiffs have succeeded on the merits. Their interest in addressing C&H's effects on the environment will be irreparably harmed absent an injunction. On balance, the interest in getting the environmental assessment right outweighs any harm that enjoining the guaranties will cause the federal Agencies. "And the public interest is best-served by ensuring that federal tax dollars aren't backing a farm that could be harming natural resources and endangered species."
Judge enjoins federal loan guarantees for Buffalo River watershed hog farm Posted By Max Brantley on Tue, Dec 2, 2014 at 5:16 PM Federal Judge Price Marshall ruled today in Little Rock that two federal agencies hadn't done an adequate environmental assessment before guaranteeing $3.6 million in loans for a major hog feeding operation in Newton County near the Big Creek tributary to the Buffalo National River. The judge enjoined the loan guarantees, meaning they are no longer in effect. The judge said USDA Farm Service Agency and the Small Business Administration had acted arbitrarily in failing to consider impact on threatened and endangered species potentially affected by the operation. The C and H Hog Farm, which supplies pork to agriculture giant Cargill, has been feared as a potential polluter of the Buffalo River, particularly because of the porous limestone that underlies the region. The immediate impact of the ruling isn't clear. Without a guaranteed loan, the lender to the hog farm might have concerns to address with the farm, but the farm has been operating without reported difficulties. The immediate impact of the ruling is that the agency's will have to conduct a new review within a year. This might produce new environmental requirements for the operation. The environmental organization Earthjustice, which helped plaintiffs in the suit, issued a release: “The Court saw the federal government agencies’ actions for what they wereundefineda disdain and complete disregard for the laws that protect our environment,” said Earthjustice attorney Hannah Chang. “We believe the Court’s decision will help to set things straight in this debacle that has put more than $3.6 million in federal taxpayer dollars on the line to support a massive swine factory farm upstream of a treasured national resource.” Hank Bates, the Little Rock lawyer who represented plaintiffs in the lawsuit, said he hadn't fully read it yet, but said, "This changes the landscape. Momentum is in the right direction." The plaintiffs were the Buffalo River Watershed Alliance, the Arkansas Canoe Club, the National Parks Conservation Association and the Ozark Society. Defendants were the federal agencies, not the hog farm. Comments provided by Earthjustice: Buffalo River Watershed Alliance Board member Dane Schumacher: "We are hopeful that the court's decision will result in a more thorough consideration by the U.S. Department of Agriculture’s Farm Service Agency and the U.S. Small Business Administration of the effects this swine facility, and others like it, have on local communities as well as on national treasures like the Buffalo River." Arkansas Canoe Club Board member Bob Allen: “It is not a question of if, but rather when and how much, pollutants from the hog factory, including excess nitrogen, phosphorous and bacteria, will make their way to the Buffalo National River. The Court’s decision today means that the federal government will actually have to consider the environmental impacts of the hog factory that it made possibleundefinedsomething the involved agencies should have done from the very start.” Emily Jones, Senior Program Manager in NPCA’s Southeast Regional Office: This ruling is an important step forward for the protection of the Buffalo, America's first National River. The Buffalo River belongs to the nation and the American people for this and future generations to enjoy and its protection is the responsibility of the federal government. This ruling squarely calls into question the adequacy of the Farm Service Agency’s and Small Business Administration’s prior environmental review, and requires that both agencies undertake the procedures necessary to ensure adequate protections of this national treasure.” Robert Cross, President of the Ozark Society: “We are extremely pleased by Judge Marshall’s decision. The flaunting of federal regulations by the Farm Service Agency and the Small Business Administration in the loan guarantee process that allowed the construction of C & H Hog Farms was a severe blow to the people of Arkansas and the nation who believe in the protection of our unique and beautiful natural resources such as the Buffalo River. The decision can undo only some of the damage done, but it will hopefully serve as a message to others who consider similar egregious acts in the future." Here's the judge's ruling, which he'd indicated would take this shape at an earlier hearing. The facts about laws ignored, seeping waste pits and potential for pollution are stark. The judge didn't accept the argument that the defendants had no role in potential damage. Without their guarantees, the farm couldn't have gotten loans to operate, the judge said. The judge said the agencies could now take the "hard look" they should have taken at the beginning and perhaps set conditions. More review by the agencies likely will affect how the farm is operated, the judge said. He noted how flawed the environmental assessment had been undefined no mention of the Buffalo River, Big Creek, the nearby Mount Judea school or the endangered gray bat. There was no notice in the local newspaper. The size of the operation was unprecedented. It now has 6,500 hogs. The federal agencies merely figured that state review would cover the operation. We know, if the judge didn't say it, how little the state regulatory agency said and did. In finding for most of the plaintiffs' claims undefined for example, he turned down one because he found the project wasn't on the Buffalo River and this didn't run afoul of its enabling act as a national river undefined he said it opened the door to attorney fees. I've been unable to reach anyone at C and H for a reaction.
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