Moratorium on swine farm permits in Buffalo watershed would be permanent due to ecology panel rule changes

Ecology panel approves rule changes

The Pollution Control and Ecology Commission gave the Department of Energy and Environment the go-ahead to proceed on two proposed changes to its rules during its Friday meeting -- including one that would make the 2015 moratorium preventing issuance of new swine permits in the Buffalo River watershed permanent while also altering the language of the 2015 ban.

The rules -- the other of which is a change being done in tandem with changes to Arkansas Oil and Gas Commission rules -- will now go into the public comment period.

The first of the two rule changes, to Rule 1, will facilitate the transfer of authority over high-volume Class II disposal wells and their associated surface facilities and the surface facilities of Class II commercial disposal wells to the OGC.

The second of the changes, to Rule 6, is being done to comply with new federal regulations, interim Chief Administrator of the Environment Bailey Taylor told the commission. She pointed out that a failure to make state rules comply could affect the state's authority over the National Pollutant Discharge Elimination program, which is delegated from the federal government.

In addition to bringing the rule into line with federal regulations, it also makes modifications to maintain the "status quo" in the Buffalo River watershed, Taylor said, after the state purchased the controversial C&H Hog Farms facility and closed it in 2020.

The proposed rule, on paper, broadens the moratorium to apply to new concentrated animal feeding operations (CAFOs) in the watershed, with the proposed language reading "The Director shall not issue a permit pursuant to this rule for a new CAFO in the Buffalo National River Watershed." However, Taylor said in her remarks to the commission that the department wants to add the word "swine" in between "new" and "CAFO" in order to "maintain status quo with the moratorium," which would effectively limit it only to swine operations, though without the specific number and weight restrictions currently in place.

The proposed rules struck language specifying the number and weight of swine necessary to meet the moratorium requirements. Under the current rules, permits won't be issued for facilities with "(1) 750 or more swine weighing 55 pounds or more; or (2) 3,000 or more swine weighing less than 55 pounds."

The proposed changes, if ultimately adopted, would also make it so that the permitted number of swine can't be increased in a "new permit or subsequent permit renewals" issued pursuant to Rule 6.

In 2020, attempts to make a temporary moratorium on medium and large swine farms in the watershed was shot down by the Arkansas Legislative Council.

Despite a stipulation within the temporary moratorium, which went into effect in 2015 with a rule change, that said that the department would either need to lift the moratorium or make it permanent within five years, the department evidently allowed the moratorium to stay on the books after the defeat of its 2020 rule change. This is the first proposed change to Rule 6 since the 2020 attempts, according to the Division of Environmental Quality's website, and the paragraph making the moratorium temporary is struck in the proposed changes.

In addition to the watershed-specific changes, other changes within Rule 6 will streamline reporting by using an online platform.

"The use of the platform is expected to reduce costs as it is a more efficient permitting processing system," E&E spokesperson Carol Booth wrote in an emailed statement. "The Arkansas Department of Energy and Environment expects that Seek will also reduce the department's review timeline. This online process is expected to reduce costs incurred by applicants and reduce the applicant's time-related cost that can be caused by permit-related delays."

Other changes that were part of the proposal put before the commission were part of the department's efforts to bring Rule 6 in line with new state laws as well, and the department expects lower costs to permittees.

"The revised rule implements new statutory requirements for non-municipal domestic sewage treatment works permittees to make trust fund contributions in place of the previous statutory requirement for a financial assurance mechanism for the funds sufficient for a third party to operate the system for five (5) years," Booth wrote. "The required contribution to the trust fund is generally less than the previously required financial assurance mechanism."