Arkansasonline
Arkansas farm-permits bill progresses; authority shift given Senate nod
by Emily Walkenhorst
A bill that would transfer hog and other farm permitting authority from one state agency to another passed in the Arkansas Senate on Tuesday after a brief discussion over whether the bill says what its sponsor claims it says.
Senate Bill 550 amends current law focused primarily on dry animal litter and poultry farms, gives the Arkansas Natural Resources Commission the responsibility to issue concentrated animal feeding operation permits, and gives decision-making power to local conservation districts on manure disposal permits. That authority is currently under the Arkansas Department of Environmental Quality.
The bill also allows people applying for manure waste system permits to "waive" public notification requirements.
Concentrated animal feeding operations can include dairy and other farms of certain sizes. All hog farms must get permits if they operate liquid waste management operations, which nearly all hog farms do.
Currently, the department has more than 100 active hog farm permits, according to state data.
Agricultural groups have favored the bill, while environmental groups and water utilities have opposed it.
Sponsor Sen. Gary Stubblefield, R-Branch, said he introduced the bill to allow farmers who have dry poultry operations, in addition to liquid animal waste operations, to work with a single agency in the permitting process.
The bill passed Tuesday 25-5, with three people voting present and two not voting.
Sens. Will Bond, D-Little Rock; Joyce Elliott, D-Little Rock; Keith Ingram, D-West Memphis; Mark Johnson, R-Little Rock; and Greg Leding, D-Fayetteville, voted against the bill. Sens. Eddie Cheatham, D-Crossett; Linda Chesterfield, D-Little Rock; and Jason Rapert, R-Bigelow, voted present. Sens. Missy Irvin, R-Mountain View, and Dave Wallace, R-Leachville, did not vote.
The House Committee on Agriculture, Forestry and Economic Development is to consider the bill as a special order of business March 27.
Stubblefield spoke for several minutes about misconceptions that he said people were emailing to senators, but two of the things Stubblefield stated were refuted by two other senators.
Ingram took issue with Stubblefield's characterization that the Natural Resources Commission would issue the permits.
Stubblefield has presented the bill as transferring all hog farm permitting responsibility to the commission, Ingram said, "but that's not really true." A portion of the bill stipulates that waste management permits would be determined by local conservation districts, Ingram said. Each county has a conservation district.
The commission could only affirm or overturn a conservation district decision to deny an application or to deny a portion of the application, according to the bill's language, Ingram said.
Stubblefield stood by his presentation and said conservation districts approve nutrient management plans and refer their decisions to the commission, which would issue the permit.
"This bill transfers all permits to" the commission, he said.
"OK, but I don't think that's what this reads," Ingram said.
Proposed Ark. Code Ann. 15-20-1115 refers to "liquid livestock litter utilization" and concerns "livestock litter management plans." Such plans spell out the process for disposal of animal manure generated by the waste management system, such as how and how much animal manure farmers will be allowed to apply to land as fertilizer.
Under the proposed subsection (c), the "liquid livestock litter management plan is subject to approval by the board of directors of the conservation district where the majority of the land ... is located."
It continues, saying that an applicant can appeal a disapproval of a management plan or the disapproval of a provision in a management plan to the Arkansas Natural Resources Commission's executive director.
Subsection (d) goes on to state that an approved plan "constitutes a permit to apply nutrients consistent with the liquid livestock litter management plan."
Proposed Ark. Code Ann. 15-20-1116 concerns "liquid livestock waste system permits." In the bill's definitions, "liquid livestock litter management system" refers to the "collection, storage, distribution, or disposal of livestock litter in liquid form."
That section of the bill says the commission is the agency that would act on permit applications.
Waste system permits that are active once the commission begins accepting permit applications would be transferred to the commission "without modification," the section reads.
The commission must adopt final rules by July 1, 2020, according to the bill, and the commission must begin accepting permit applications by Jan. 1, 2021.
Other than Stubblefield, three senators -- Blake Johnson, R-Corning, and Alan Clark, R-Lonsdale, and Ricky Hill, R-Cabot -- spoke in favor of the bill. Bond spoke against it.
Bond said the measure should be rejected in the spirit of Arkansas' nickname, the Natural State.
Senators in favor of the bill argued that farmers are good stewards of their land and that commission workers are good at what they do.
"Keeping the state the Natural State, I don't think, is up for debate," Clark said.
Bond spoke for several minutes and fielded a handful of questions from senators.
While Stubblefield told senators that the commission would have to write regulations that are just as stringent as the Environmental Quality Department's, Bond contended that the bill doesn't state that.
Critics of the bill have expressed concern that it would get rid of the Arkansas Department of Environmental Quality's Regulation 5, under which liquid animal waste systems and waste management plans are currently permitted.
The current law, Ark. Code Ann. 15-20-1114, states that the law "shall not supersede" the existing requirements of the Arkansas Water and Air Pollution Control Act, but that waste management plans will not be subject to the law "or any regulations adopted under" the law. The department's Regulation 5, which covers all hog farms in the state except C&H Hog Farms in Newton County, is adopted under the law.
C&H Hog Farms, a 6,503-head hog farm near the Buffalo National River that had its permit denied last year, has a Regulation 6 permit that has expired, which is what prompted its owners to apply for a Regulation 5 permit, that was subsequently denied.
Environmental groups have opposed the farm's operation within the river's watershed and say it poses a threat to the river's water quality.
The commission may determine that certain activities are not in compliance with the law and shall be subject to regulation under the law, the bill continues.
The bill's passage would negate Regulation 5's moratorium on any new medium or large hog farms in the Buffalo River watershed, critics say.
During a review next year, Department of Environmental Quality Director Becky Keogh is to decide whether to keep the moratorium. The moratorium is not explicitly referred to in the bill, but Stubblefield said the department would retain decision-making authority.
Critics also worry about losing Regulation 5's requirement that facilities consider the Agricultural Waste Management Field Handbook. The handbook has recommendations on farm siting, geologic investigations and manure pond liners, among other things.
In denying C&H's permit, state department regulators determined that C&H did not submit enough information to ensure the facility's site as safe, per handbook recommendations.
Senators discussed the department's "mistakes" in the C&H permitting process and questioned the need for keeping permitting authority with the department. Bond argued that the department has improved its operations.
The bill would not have any implications for C&H, Stubblefield said, because if C&H pulled its application, it would have to close. C&H remains open indefinitely while litigation related to its various permit denials remains in circuit court.
Bond said he isn't sure that C&H wouldn't benefit because its owners may be able to apply for a new permit with the commission.
Critics have noted other things that were not debated Tuesday in the Senate.
The bill allows applicants to waive public notification during the permitting process for waste management systems. Existing law allows applicants only to waive the "timeliness requirement," which stipulates that the department shall make decisions within limited time frames.
Stubblefield told senators Tuesday that his bill did not allow applicants to waive public notice requirements and that it allowed them only to waive the department's timeliness requirement.
He said the state administrative procedures law requires public notice.
Stubblefield submitted an amendment to his bill late Monday that would have changed the "notification period requirements" referred to in his bill back to "timeliness requirement" but later withdrew it.
The Beaver Water District, the main water source for Northwest Arkansas, and Central Arkansas Water, the main water source for central Arkansas, oppose the bill. The utilities contend that the bill would loosen permitting requirements and possibly expose drinking water sources to excess algae-causing phosphorus.
The Department of Environmental Quality has maintained that the U.S. Environmental Protection Agency could raise concerns about the law as it relates to protections of waters under the Clean Water Act. An Arkansas Farm Bureau representative who used to work for the department disputed that assertion at a Senate committee meeting last week.
Many hog farms also need construction permits if they operate on enough acreage, said Jessie Green, executive director of the White River Waterkeeper and a former department engineer. The department would remain in charge of those, she said, without the ability to decide on the other permits.
Further, Green said, complaints and inspections of facilities are not provided on the commission's website, unlike the department's website. And, unlike at the department, people who complain about a facility to the commission must submit their complaints in writing, have them notarized and mailed with their names on them.
"That's a huge barrier to trying to get the public involved," Green said.