State commission approves rule change to make Buffalo River watershed off limits to large hog farms

October 25, 2024 at 3:52 p.m.

The Pollution Control and Ecology Commission on Friday unanimously voted to adopt changes to a state regulation that would make an existing temporary moratorium on medium- and large swine farms in the Buffalo River watershed permanent.

The permanent moratorium is part of a group of changes to Regulation 6, which governs the state's administration of a federal Clean Water Act program. Those changes will go into effect if they are approved by the state Legislature in December.

Over 200 individuals and groups submitted public comments, both in favor and against the proposed changes. The comments were almost entirely addressing the moratorium.

Michael McAlister, the managing attorney for the Department of Energy and Environment's Office of Chief Counsel, told the commission that the permanent moratorium "does nothing to change the current status quo" which has been in place since the temporary moratorium went into effect.

He said the rest of the changes were necessary in order to comply with federal law and maintain the state's ability to administer federal environmental regulations.

Gordon Watkins, the president of the Buffalo River Watershed Alliance, reiterated concerns he made in his written public comment and in an interview with the Democrat-Gazette earlier this week when he stood to address the commission Friday morning.

The permanent moratorium, Watkins said, leaves a loophole for a Regulation 6 permit to still be granted to a medium or large swine farm if it has an existing liquid animal waste permit. There are four liquid animal waste permits granted to swine farms within the watershed, he said, although none of them remained active. He expressed concerns about what would happen should someone try to reactivate those permits, noting that C&H Hog Farms caused environmental damage to the watershed in the time it was in operation.

Charles Moulton, the administrative law judge for the commission, said that the moratorium's loophole would only apply to active permits based on his reading of it.

"I think what Mr. Watkins described was a bunch of inactive facilities," Moulton said. "That's going to be a little twist in terms of, if they do indeed, if the division (of Environmental Quality) does indeed get an application to restart those, how it's going to view that verbiage."

The Division of Environmental Quality's predecessor began the process of instituting a moratorium in 2014, in response to the controversy with the C&H Hog Farm in the watershed. That moratorium, however, was temporary, with language that it had to be made permanent in five years or deleted from the rule.

The Division of Environmental Quality, which proposed the rule amendment, tried to make the moratorium permanent in 2020 in accordance with the temporary moratorium's language. It made it through the administrative process but was ultimately shot down during legislative review in the face of opposition from agricultural interests and skepticism from lawmakers.

The division brought it back to the commission earlier this summer as part of a group of amendments to Regulation 6, which governs the state's administration of the federal National Pollutant Discharge Elimination System program.

According to the statement of basis for the changes, the division "initiated this rulemaking to Regulation 6 before the Arkansas Pollution Control and Ecology Commission to adopt federal revisions to the discharge elimination program, incorporate statutory revisions made by the Arkansas General Assembly, and make corrections and stylistic and formatting updates throughout the regulation."

The changes to Regulation 6 -- which will become Rule 6 if it makes it through the process -- now rest in the hands of the Arkansas Legislative Council's administrative rules subcommittee, which will take up the matter for final approval in December.

It is unclear whether the rule change will receive legislative approval this time around; lawmakers have already rejected a permanent prohibition in the watershed once before, and agricultural interests such as the Arkansas Farm Bureau Federation remain solidly in opposition to anything other than the full removal of the moratorium.

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