Madison County Record - Sept 11th - Ellen Kreth, Publisher

FARM BUREAU SUPPORT LIFTING BUFFAO RIVER MORATORIUMS

Farm Bureau supports lifting Buffalo River moratoriums

Proposed regulation reduces public notice.

An Arkansas Department of Agriculture proposed regulation has opened the door to the possible lifting of a moratorium of liquid animal waste permits in the Buffalo National River Watershed and proposed less strict public notifications of those permits.

In 2019, as part of an agreement to close C&H Hog Farms in Mt. Judea, a large farm in the watershed, then-Gov. Asa Hutchinson issued a moratorium preventing large-scale swine farms from operating in the protected watershed.

C&H Farms had been in operation since 2012 on the banks of a tributary that feeds into the Buffalo National River.

During the Regular General Assembly in 2023, the Arkansas Legislature passed a bill that transferred the permitting process for liquid animal waste permits from the Arkansas Department of Environment Quality (ADEQ) to the Arkansas Department of Agriculture, which was tasked with reviewing and promulgating rules for liquid animal waste permits.

Liquid animal waste systems include those used for the collection, storage, or distribution of animal manure in liquid form generated by Concentrated Animal Feeding Operations, which is oftentimes referred to as COFAs.

That bill, along with a companion bill exempting information about nutrient management plans or poultry litter management plans exempt from the Arkansas Freedom of Information Act, were sponsored by DeAnn Vaught, R-Horatio. Vaught, who is a hog farmer, did not respond to The Record’s request for comments.

The department of agriculture is now tasked with issuing and modifying permits, approving design plans and site requirements, and promulgating rules for waste management systems.

The new law transferred to the Arkansas Department of Agriculture applications of new permits or modifications of existing ones filed with ADEQ that have not been reviewed for final decision and directed the department to rewrite Regulation 5.

Regulation 5 governs rules for liquid waste management for swine, poultry or dairy farms or other COFAs.

The proposed regulation includes proposing a moratorium for all new swine COFAs in Buffalo National River Watershed, not just large-scale farms, and it struck many public notice requirements regarding such permits.

Evan Teague, Arkansas Farm Bureau Federation Vice President of Environmental Issues, said the transfer of permitting power from ADEQ to the department of agriculture was in part due to the way C&H Farms was treated during its permitting process.

“We felt like the way that C&H Farms was treated through the agency process and review process was not fair,” he said. “A lot of trust was lost over the fact that staff there can administer agricultural related permits fairly and without prejudice.”

Teague said agriculture is the number one contributor to the state’s GDP and, “It just seems like a lot of folks through that process over the last decade have forgotten that.”

According to President of the Buffalo River Watershed Alliance Gordon Watkins, the department of agriculture is not properly equipped to enforce permit regulations, and it lacks the staffing to properly conduct inspections.

The alliance was formed in 2013 in response to C&H Farms permit. It has argued that the river is contaminated from the runoff of the farm contaminates and damages the river.

Many of the new components under proposed Regulation 5 are in response to the permitting process around C&H Farms.

In 2012, C&H Farms applied for a permit under ADEQ’s Regulation 6 for a large-scale hog farm near the Buffalo River. Though the farm complied with all regulations and published a legal notice in the Arkansas Democrat-Gazetteas well as having the permit posted on the ADEQ website, many people stated they didn’t know the farm was operating and expressed concerns that the waste from the farm would damage the Buffalo National River water quality.

Regulation 6 required the farm to reapply for a permit every five years.

Proposed Regulation 5 does not have a reapplication process, and unless the permit needs modifying, the permit is perpetual.

In 2017, C&H Farms began operating on an expired but extended permit, before the ADEQ denied a new operating permit in 2018, citing water quality issues and insufficient geological investigations of the farms’ rough karst terrain.

According to the National Park Service, karst terrain is a type of landscape where the dissolving of the bedrock creates sinkholes, sinking streams, caves, springs, and other characteristic features.

Teague said research has shown the farm waste was having no impact on the river.

In 2019, the state paid $6.2 million in a settlement agreement to close C&H Farms and give the Arkansas Natural Heritage Commission, a part of the Division of Arkansas Heritage, a conservation easement to the property, which is near Big Creek, 6.6 miles from where it flows into the Buffalo National River.

In addition, Hutchinson issued a moratorium banning large-scale swine operations in the watershed.

Even though the legislature never approved the moratorium, it remained in place.

Watkins said no one has applied for a permit since the moratorium was issued so a question remains what the outcome would have been if a permit had been submitted while the moratorium was on the books but not adopted by the General Assembly.

“Our opinion is this moratorium, honestly, never should have been put in place. And, to be honest, we’re not sure that the process that was used met standards and thresholds required by state law,” Teague said.

In response to the proposed Regulation 5, Teague told the Pollution Control and Ecology Commission in public comments, “The ‘right to farm’ is a foundational principal that supports the continuation of agricultural operations without unreasonable interference. This rule not only affects swine production but could also have a lasting impact on the broader farming community and future generation of farmers.

“The proposed moratorium sets a precedent that could potentially lead to further restrictions on various types of farming within the watershed and beyond.”

“Although Arkansas Farm Bureau has always been opposed to the moratorium, one thing that really caught our attention was that they removed the exemption for small farms,” in Regulation 5, Teague said.

That opened the door for the Farm Bureau to say it didn’t want the moratorium at all.

“There’s no need for a moratorium. There’s no need for the government to immediately say, ‘No,’ without some review of the science and the situation,” said Steve Eddington, a spokesperson for Farm Bureau. “So there’s no need to automatically say no before you ever look at any of the facts and that’s what a moratorium would do.”

Watkins supports the moratorium and submitted comments to the Arkansas Division of Livestock and Poultry stating, the “Quality of the river for recreational purposes, including primary contact, is dependent on the quality of the water in its tributaries.

“Due to the karst nature of the watershed, the river is particularly vulnerable to pollutants, such as liquid animal waste, which can penetrate the porous surface and emerge in springs that feed the river,” he said.

Watkins said studies have verified the risk.

“Because of the importance of the Buffalo River to the economy of Arkansas, and particularly to those communities within its watershed, it behooves the state to take appropriate steps,” such as the moratorium to preserve and protect the river.

Watkins also stated Regulation 5 allows the agricultural department to modify existing permits and that could affect permits for four facilities in the Buffalo National River Watershed that are “active” but not currently operational. He argues those permits should be voided.

Seeking clarification, he asked the agriculture department whether these four active permits could be reactivated under the proposed regulation if they are not voided.

Teague said he is aware of the four permits but said from his understanding none of them will be reactivated.

He said it’s not uncommon to have active permits but not have an operational farm.

“There are many farmers that used to raise hogs, and they keep their permits active in case they decide they want to try and get back in the business.

“But even if they were to try and do that, they’re going to have to update and upgrade those facilities and they would have to go back through public hearing and update their nutrient management plans,” Teague said.

Watkins disagrees and said the language in proposed Regulation 5 does not make it clear.

The proposed regulation states the department may issue a permit renewal or modification for COFAs in the watershed with an active permit.

“It raises questions about why these permits are still active in the watershed and could they actually be reactivated,” Watkins said.

“Nobody could answer these questions,” Watkins said.

Lessening Public Notice

Proposed Regulation No. 5 would also take public notices out of newspapers as well as doing away with the requirement of sending notices via certified mail to adjoining landowners, county judges, school superintendents and mayors.

The proposed regulation would require notices to only be posted on the Arkansas Department of Agriculture website. Public notice on draft permits will be accepted beginning the day of the notice is posted and will close 30 calendar days after the notice.

The lessening of public notice has drawn the ire of conservation groups.

“The point is we’re about to go from reasonable public notification to none at all. Not even newspapers,” according to Brian Thompson, president of The Ozark Society, a regional conservation organization formed in the 1960s to oppose dams on the Buffalo River.

“They’ve done a remarkable job of keeping this under the radar,” he said.

The proposed regulation is statewide and not just for potential operations near the Buffalo National River.

Changing notification requirements “when it has been routinely provided in the past, suggested a calculated lack of transparency with stakeholders who certainly deserve to be informed regarding an operation that may impact their community,” Thompson wrote in comments to the Livestock and Poultry Division.

“The proposed language is wholly inadequate in terms of transparency and public notice,” according to Watkins.

“I believe in transparency at all levels of government,” said John Tull, attorney for Quattlebaum Grooms and Tull and a FOIA expert and advocate.

Tull is also an attorney for the Madison County Record.

“When you take away specific requirements for public notice, you run the risk of people who should receive notice not actually receiving it,” he said, adding not requiring public notice is “bad government policy.”

When C&H was granted a permit under ADEQ’s Regulation 6, Watkins said in comments made to Cory Seats of the department of livestock and poultry, “The public, including Buffalo River Staff, were unaware of this permit until long after it was issued and the facility was completed and were thus unable to provide public comment when the permit was being reviewed, which presented standing to challenge the permit.”

After a public outcry regarding what people saw as a lack of proper notification regarding C&H Farms, public notification regulations were changed.

The permit for C&H was issued in August 2012, but it was not until late December that the “Park Service caught wind about it, and that one issues there, regardless of how you feel about hog farms, the legislature realized that that public notice requirement was a real problem.”

At a legislative committee hearing in 2014 regarding proposed changes that strengthened notification requirements, “No committee member asked any questions and the proposal was returned to the Ecology Commission for final adoption,” Thompson said.

“The point here is that legislative members clearly recognized that robust public and stakeholder notification was in the best interest of Arkansas citizens while serving to avoid future conflict over transparency,” Thompson said.

Teague said Farm Bureau has not been involved in the public notice section of proposed Regulation 5.

FOIA Exemption

Act 1707 also exempts information regarding nutrient management plans and poultry litter management plans from the Arkansas Freedom of Information Act which means the public will not be able to know if its water is being contaminated by somebody who is not managing their operations properly, Watkins said.

Information regarding the poultry industry has been exempt under FOIA for many years, but his new law expands that exemption to information regarding farm locations, how many animals are on the farm, the amount of litter being produced, and whether it’s being applied or transferred out.

“If we did not have access to that information for C&H, we never would have shut them down,” Watkins said.

Watkins said the public should have access to that information.

He said he has lived for 50 years in Newton County on the Buffalo National River and has his water tested and it’s always come back “fine.”

He said if someone put in a hog farm on the mountain above where he lives the chances are pretty good it’s going to impact his drinking water.

“So if I start getting sick and I check my drinking water and find it’s got elevated E. coli, then where do I go? You know, what’s the source of it?” Watkins said. “With the new FOIA exemption, “At this point, you wouldn’t be able to know.”

Watkins said if the public suspects a violation, they could “call it in” and request someone investigate.

“But you wouldn’t know that because you can’t have access to the (information) under that exemption under FOIA,” he said.

Public comments regarding Regulation 5 close on Sept. 16 at which time, the department must respond the comments submitted before making a determination regarding Regulation 5. That recommendation must then go before the Arkansas Legislative Council for approval.