Arkansasonline
Lawsuit targets USDA's waiver; it claims ‘factory farms’ given passby Nathan Owens | December 13, 2018
A group from Harrison is among the activists suing the U.S. Department of Agriculture over a 2016 exemption rule that allows "medium-sized" feedlots and poultry farms, which can hold tens of thousands of animals, to sidestep the risk analysis process required of "large" operations.
The rule, court documents show, exempts certain poultry, pork, beef and dairy operations that apply for taxpayer-subsidized loans or loan guarantees from the usual process of public notice, public comment and federal oversight and has allowed for the establishment of dozens of "factory farms."
At least 100 medium concentrated animal feeding operations were approved for Arkansas from 2016 to 2017, according to USDA records cited in the complaint. The complaint was filed in U.S. District Court for the District of Columbia on Dec. 5. The defendants include the USDA and its Farm Service Agency, Secretary of Agriculture Sonny Perdue and Administrator Richard Fordyce.
The plaintiffs -- eight U.S. agricultural and environmental advocacy groups -- allege that the Agriculture Department developed a rule "categorically excluding [Farm Service Agency] funding of medium-sized concentrated animal feeding operations from National Environmental Policy Act review."
Among the plaintiffs is the group White River Waterkeeper, a Harrison nonprofit that advocates for the northern Arkansas river and its watershed, informs the public of environmental issues and the effects of new feeding operations in the region, including the C&H hog farm in Newton County.
They argue the 2016 exemption for medium operations harms rural communities, affecting their land, water and air quality without federal regulation and oversight.
The exemption effectively eliminated environmental rules that safeguard rural communities for the benefit of large food companies, said Tara Heinzen, a staff attorney at Food and Water Watch, one of the listed plaintiffs.
Before 2016, the USDA's Farm Service Agency performed environmental analyses under an EPA act to assess the impact of government loans or loan guarantees on concentrated farm operations, before the loans or guarantees were approved. The farm agency would weigh the "negative externalities" of the operations on nearby communities and then notify neighbors, farmers and other interested parties of the planned facility or expansion and the risks involved, so they could raise concerns "before the federal government disbursed funds," the complaint said. Risk assessments were conducted if an operation held at least 50,000 chickens, 27,500 turkeys, 1,250 pigs, 500 cattle or 350 dairy cows.
Under the current rule, medium concentrated animal feeding operations are exempt from the rule-making procedure, fast-tracking them for approval of federal loans or loan guarantees. The plaintiffs claim the Agriculture Department is in violation of federal clean air and water acts by allowing the rule's exemption to stand.
Proponents argue the rule makes it easier for farmers to secure funding. Critics say the rule keeps residents in the dark until construction is underway. The plaintiffs contend that through the current rule the Farm Service Agency "now assumes these facilities have no environmental impact and exempts them entirely from analysis under [the National Environmental Policy Act]"
The difference between "large" and "medium" operations can be slim. According to government documents, medium operations can hold up to 124,999 chickens, 54,999 turkeys, 2,499 pigs, 999 cattle or 699 dairy cows. They are considered "large," and must undergo public scrutiny, if the operations exceed those limits by a single animal.
Under the Freedom of Information Act, the plaintiffs' attorneys requested USDA documents and found the medium operations that received loans through the 2016 rule exemption were clustered near processing plants. At least 100 were approved for Arkansas between Aug. 3, 2016 and December 2017 without undergoing the same processes required of "large" feeding operations, court records show. Specifically, the Farm Service Agency funded for the period six medium feeding operations in Benton County, nine in Washington County, seven in Madison County and three in Carroll County, the complaint said. Arkansas is one of the leading poultry producers in the nation with contract growers and processing plants clustered in the northwest corner of the state, where Simmons Foods, George's Inc. and Tyson Foods have headquarters.
Casey Dunigan, a resource conservationist for the Washington County Conservation District, a group that requires poultry farmers to create a waste-management plan for their operations, said the plaintiffs are likely trying to "put pressure on the [Farm Service Agency] to stop putting out loans."
Poultry loan guarantees funded through the Small Business Administration also have come under scrutiny this year. In a March report, the administration's inspector general viewed the business relationship between the contract grower and integrator as "affiliative," questioning whether poultry growers qualify for federal assistance.
Dunigan said the complaint's colorful definition of a traditional farm is wrong and misleading, but the rule's exemption likely has an influence in the number of medium feeding operations being approved. Farmers consider the necessary hurdles before deciding what operation they want to build or signing up for a loan, he said.
"But I'd rather have a bunch of mediums than large ones, personally."
Business on 12/13/2018
PRESS RELEASE
FOR IMMEDIATE RELEASE
10 December 2018
Contacts:
Jessie J. Green, 870.577.5071, jessie@whiteriverwaterkeeper.org
HARRISON - White River Waterkeeper (WRW) joined a coalition of eight groups representing family farmers, sustainable agriculture advocates and concerned citizens throughout the country in filing suit against the United States Department of Agriculture last week. The suit aims to stop a policy exempting industrial animal operations that receive federal loans from undergoing an environmental review or providing any notice of their planned operations to neighbors.
“Public comment opportunities provide a chance to review and give feedback on localized environmental and human health concerns that are often not considered by agency reviewers. Poor environmental review and insufficient public notice are how we ended up with a large hog CAFO in the Buffalo River watershed. We can all agree that the most appropriate time for environmental concerns to be raised is prior to CAFO installation, before loans are disbursed and before families risk their financial well-being to enter the low-reward corporate agriculture scheme,” said Jessie Green, WRW’s Director and Waterkeeper.
The USDA’s rule change, adopted in 2016 by its Farm Service Agency, grants exemptions from the usual process of notice, comment and oversight in cases where the government is providing taxpayer-subsidized loans to Concentrated Animal Feeding Operations (CAFOs) considered “medium-sized” by the USDA. Such facilities are authorized to hold nearly 125,000 chickens, 55,000 turkeys, 2,500 pigs, 1,000 beef cattle, or 700 dairy cows. Failing to review the financing for these facilities under the National Environmental Policy Act (NEPA), has helped cloak their planned operations in secrecy, preventing rural communities from obtaining information regarding the impact of these operations on local air and water quality. In so doing, the Administration promotes factory farms over family farms.
The lawsuit alleges that both the rulemaking process and the final rule violate NEPA and the Administrative Procedure Act by failing to provide adequate notice of the proposed rule change, and refusing to clarify why medium-sized CAFOs should be provided this special treatment and automatically exempt. Between the rule’s implementation in August 2016 and December 2017, the government allowed 40 such operations in four Arkansas counties alone with no public comment or environmental assessment. During the same time frame, eight such operations in Iowa, housing nearly 20,000 pigs and generating as much untreated sewage as a town of 200,000 residents, were also allowed to escape any assessment or comment period.
“CAFOs leave farmers and rural communities on the hook for many of industrial agriculture’s negative impacts and take wealth out of local economies. According to 2012 USDA poultry census data, contract farmers accounted for 48 percent of broiler farms but 96 percent of production. Although growers invest the most capital in the operation, and work long, laborious hours to raise the animals, their profit margins are small. When environmental impacts come to light, contract growers often aren't in the financial position to properly address concerns. Limiting environmental review and transparency on the front-end places farmers in a position to be blindsided by concerns after they are trapped with debt and unable to negotiate better contracts which would allow them to upgrade environmental controls. We don’t need more loopholes for corporations; we need a system that promotes independent farming and wealth for rural communities,” added Green.
“Responsible agricultural operations that are committed to being both good neighbors and good stewards of the communities in which they operate have nothing to fear from notice to the community and an assessment of their operations,” the coalition of groups in the lawsuit said. “This irresponsible change in the rules that have helped protect rural and small communities for decades is, instead, designed to protect polluters and undermine transparency. Small, family farms and their neighbors are disadvantaged while huge corporations are given a government green light to operate with impunity. That’s not only morally wrong; it’s clearly illegal, too. Though we represent a broad and diverse coalition of citizens and advocates from across the country, we are all alarmed at the impact of this change and share a common goal of ensuring USDA looks out for family farms and rural communities, and not just the interests of giant corporations.”
The groups bringing the suit are Animal Legal Defense Fund, Association of Irritated Residents (Cal.), Citizens Action Coalition (Ind.), Dakota Rural Action (S.D.), Food & Water Watch, Iowa Citizens for Community Improvement, the Institute for Agriculture and Trade Policy, and White River Waterkeeper (Ark.).*
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Harrison Daily Times
By JAMES L. WHITE jamesw@harrisondaily.com
MOUNTAIN HOME — With the potential forced closing of C&H Hog Farm near Mt. Judea, Newton County Circuit Judge John Putman told parties in a lawsuit Tuesday that he would rule as soon as possible on a motion to dismiss the suit.
C&H had applied for renewal of its permit to operate a liquid animal waste management system for a concentrated animal feeding operation at Mt. Judea. Manure from the hogs is collected in ponds before being spread on approved pasture land.
The PCE remanded the denial back to ADEQ because there had been no public notice. In September, C&H appealed PCE’s decision that just remanded the permit back to ADEQ instead of reversing and remanding the decision for denial.
Judge Putman issued a stay of ADEQ Jan. 10 denial, saying his court gained jurisdiction when C&H appealed. The order said there could be no further action in the case until he issued further rulings.
In the meantime, ADEQ issued public notice of intent to deny the permit and held two public hearings, then issued another denial Nov. 19, ordering closure of the hog farm a month later.
C&H filed a motion to hold ADEQ in contempt of court for issuing that denial even though Putman had issued the stay in September.
The Tuesday hearing was scheduled to be heard in Mountain Home where Putman was already holding court because it was the only date upon which attorneys involved could agree.
PCE was represented by deputy attorneys general Dara Hall and Sarah Tacker.
Hall began arguments by saying that PCE protected C&H’s right to due process by remanding ADEQ’s decision back to the agency to follow state law by making public notice, then PCE closed its docket.
Hall said that after ADEQ followed orders to provide public notice, then accepted public comments and issued the Nov. 19 denial the Jan. 10 denial was moot.
Hall said the circuit court can only hear appeals of final decisions, but the decision hadn’t been finalized until Nov. 19. As such, the circuit court couldn’t provide any relief for C&H.
Judge Putman asked Hall about the decision to remand without reversing ADEQ’s decision. Hall said the ultimate consequence was the same and the court could only hear an appeal after C&H has exhausted all other administrative appeals of a final decision.
That would include an appeal to PCE of ADEQ’s November denial. PCE moved for dismissal of C&H’s current appeal.
The Buffalo River Watershed Alliance, Inc., Arkansas Canoe Club, Gordon Watkins and Marti Olesen filed a motion to intervene in the suit.
Little Rock lawyer Richard Mays, representing the watershed and canoe club, said the administrative law judge in the appeal to PCE of the Jan. 10 decision did not include reversal of ADEQ’s decision for fear that doing so would indicate the remand was done on the merits of the permit denial rather than just the procedure ADEQ failed to follow.
Mays told Putman that no one is opposed to the hog farm other than its location so near Big Creek, a tributary of the Buffalo National River. His clients and other environmentalists fear manure from the farm will eventually pollute the Buffalo.
C&H was represented by Little Rock lawyers Bill Waddell and Chuck Nestrud.
Waddell said the Dec. 19 closure date set by ADEQ was key to the decision. The deputy attorneys general were using arguments the PCE hadn’t even approved, he said.
Nestrud said PCE didn’t give ADEQ any instructions regarding the reprimand, so ADEQ was able to issue the Nov. 19 denial prior to the Tuesday hearing, which had been scheduled since late October, and give the PCE the argument that the Jan. 10 denial was moot.
Putman asked the lawyers who would be held in contempt of court should he rule on that motion. Waddell said that party would be ADEQ because it not only ignored the stay Putman had ordered in September, it also ordered the Dec. 19 closure date.
Hall also told Putman that PCE filed a new supplemental motion in the case Monday. Putman hadn’t seen that motion, nor the answer C&H filed later that same day.
Putman said he had hoped to rule on the motion to dismiss from the bench Tuesday, but the additional motions meant he would have to review them before making a ruling.
However, with the Dec. 19 closure date looming, Putman said he would make a ruling on the motion to dismiss as soon as possible.
Staff Report news@harrisondaily.com
JASPER — Newton County Circuit Judge John Putman on Friday denied the state Pollution Control and Ecology Commission’s (PCE) motion to dismiss C&H Hog Farm’s appeal of denial of its permit to operate and that stays issued in October are still in place.
C&H had applied for renewal of its permit to operate a liquid animal waste management system for a concentrated animal feeding operation at Mt. Judea near Big Creek, a tributary of the Buffalo Nation River.
In January, the Arkansas Department of Environmental Quality denied the permit. C&H appealed that decision to PCE because there had been no public notice of the denial as is required by law.
The Buffalo River Watershed Alliance, Inc., Arkansas Canoe Club, Gordon Watkins and Marti Olesen filed a motion to intervene in the suit and supported PCE’s motion to dismiss.
C&H contends PCE was wrong:
• By failing to reverse ADEQ’s Jan. 10 decision when it remanded the permit to ADEQ.
• By not including appropriate instructions to ensure the remand was conducted properly.
PCE moved to dismiss the appeal because:
• C&H didn’t state facts upon which relief can be granted.
• The circuit court lacks jurisdiction.
• PCE’s order to remand wasn’t a final order, or, in the alternative, that C&H can’t appeal a case it won.
• Closure of the PCE docket wasn’t tantamount to considering PCE’s order as final.
• No party is prejudiced by dismissing the appeal.
The intervenors support PCE’s motion to dismiss because:
• The court has no jurisdiction due to PCE order not being ripe for appeal.
• C&H’s statement of facts are actually a mixture of facts and legal theories.
Putman ruled Friday that the commission’s own administrative procedures say the commission’s vote to affirm the administrative law judge’s recommendation to remand “shall constitute final commission action for purposes of appeal.” Thus, PCE’s order is appealable.
Putman’s ruling states that C&H did not win the case before PCE because it did not prevail on the issues it appealed to circuit court, and that the hog farm did indeed state facts upon which relief can be granted.
Finally, Putman wrote that ADEQ’s Nov. 19 denial of the permit does not affect C&H’s appeal because his court gained jurisdiction over the matter when the hog farm filed the appeal and he issued a stay.
That order issues two stays, one on the ADEQ's January permit denial that would prompt the closure of C&H, and the other on PCE’s decision to send the permit application back to the department to be reopened under a new draft decision. Those stays allowed C&H to operate until final orders from the court.
Arkansas Democrat Gazette
[Excerpt]
FRENCH HILL: Gauntlet thrown
Committed to aiding environment by French Hill Special to the Democrat-Gazette
We agree on the fact that America's first national river, the Buffalo National River, is the ultimate icon of the Natural State. Protecting this watershed is vital for the ability of Arkansans and visitors to enjoy this beautiful free-flowing resource. As a paddler and hiker, I have enjoyed its peace and majesty for over 50 years. So naturally I object to the permitting of the large-scale hog farm in the Buffalo watershed. In my view, the ball was dropped in that permitting process by the state and federal governments. I was delighted to read recently that the Arkansas Department of Environmental Quality denied an operating permit for the hog farm. I hope an equitable solution can be found for both the landowners and the watershed.
As to the future, I am pleased to see Gov. Asa Hutchinson act to focus on comprehensive state, federal, and private efforts to consider the Buffalo River watershed as a whole. Know that on Sept. 27, 2018, Congressman Womack and I sent a letter to the National Park Service to gain understanding of what water quality challenges it faces across the entire watershed and understand what data it has or requires supporting policy direction. You can locate this letter on my website
And you're right, "Of all things in this state that should be nonpartisan, the Buffalo National River should top any list." I couldn't agree more.
As an avid outdoorsman and conservationist, I will always fight to protect our state and nation's prized natural resources for future generations to enjoy. And I hope that you don't "bite nails," but continue to advocate for common-sense environmental policies.
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U.S. Rep. French Hill represents Arkansas' 2nd District.
Buffalo versus hogs
Not a sporting event--in fact, there's nothing sporting about it. As Richard Mason points out in his Nov. 25 Perspective column, economic interests nationally continue to prevail over environmental protection.
Close to home, some progress has been made in the fight to stop factory pig farming within polluting distance of the Buffalo National River in spite of our state political leadership.
I applaud Mr. Mason for keeping the politicians on notice and for rallying support for protecting our natural abundance. Let the pigs roam where the Buffalo doesn't!
BILL HIRST
Sherwood
Defending the Buffalo
A long section of the Buffalo River got so foul this summer the park officials had to tell people not to swim in it. The river heads up in a wilderness area and flows into the park clear and clean, but midway through the park, it becomes green with slime because the state let a pig factory pollute it. Even the state of Arkansas does not call the polluter a farm. The state finally denied a permit for the hog factory to operate, but it may be years before it shuts down. Likely, the river will be polluted long after the operation is closed.
The Buffalo is part of the national park system. It belongs to all Americans. It wasn't just ignorant to pollute this beautiful asset, it is arrogant and selfish, and it reinforces an embarrassing stereotype. It says we are hillbillies. It is the equivalent, an a large scale, of emptying an ash tray on a parking lot or throwing dirty diapers under a picnic table.
In other states, this problem would not have occurred. Would the California legislature let a pig factory pollute the Merced River, which flows through Yosemite Valley? Would Wyoming let a polluter foul the Snake River where it flows through Grand Teton National Park? I could fill the rest of this column with examples. In other states, a national park is a treasure, an asset.
Well, we're different. People say, "Poor people got poor ways." In Arkansas, rich people got poor ways.
The river has many defenders, but unfortunately, none serve in our state Legislature. People all over the state have been expressing their disgust. The Legislature's reputation got fouled. Everybody has to serve somebody. But the Arkansas Farm Bureau?
JOHN CASEY
Fort Smith
https://www.nwaonline.com/news/2018/nov/30/nwa-editorial-protection-first-20181130/
NWA EDITORIAL: Protection firstBuffalo River findings reflect need for urgency
by NWA Democrat-Gazette
From the moment Arkansas' Department of Environmental Quality granted in 2012 a permit for the operation of a large-scale hog farm near a tributary of the first national river in the nation, the National Park Service could read the algae ... er, tea leaves.
The surprise issuance a state permit for operation of C&H Hog Farms "most certainly threatens the water quality of [the] Buffalo National River," the superintendent of the national river wrote at the time. Polluting the waters of the Buffalo would predictably hurt endangered species and, perhaps more important to state government sensibilities, tourism and the local economy based so fundamentally upon it.
What’s the point?
Findings of intensified algea in the Buffalo River need to also intensify the state’s response to protecting the nation’s first national river.
The fight for the Buffalo River's protection has been raging ever since. Truth be told, though, it's raged for decades against constant pressure from environmental threats. Apparently, designation of a national river only goes so far to ensure a natural resource as vital to the state of Arkansas as it is incredible to the human experience is protected from the profit-driven hubris of mankind.
Arkansas government seems to walk a very fine line, balancing as if on a split-rail fence. Lose balance and the fall could be into clear, environmentally healthy waters of the state's best-known natural amenity or it could go the other way, into pig waste. We know which way we'd want to go.
Now we hear from the U.S. Geological Survey that federal research shows an increased level of pollution in the groundwater of the Buffalo River's watershed.
That sentence should make the hearts of any nature-loving Arkansans skip a beat or two.
The Buffalo River had 70 miles of algae this year, a distance that represents nearly half the river's length.
It needs to be said clearly that the research does not tie the presence of algae to C&H Hog Farms.
It sure does make you wonder, though, doesn't it?
The findings come from multiple studies by the survey, the National Park Service and the Arkansas Department of Environmental Quality, which most recently has denied a new operating permit for C&H Hog Farms. Among the agency's reasons is concern that the farm could be contributing to water quality issues in Big Creek, which it is closest to, and thus into the Buffalo River into which Big Creek flows.
Such research is painstakingly slow when it comes to pointing a finger at a specific cause or contributor of pollution. So, yes, other animal agriculture could be contributing to the levels of elevated nutrients that cause ecosystem-damaging algae.
That such findings can take years is precisely why Arkansas must be aggressive in protecting this state (and national) treasure. By the time researchers figure out what's happening, then the political process runs its course, we could be talking years -- decades even -- before damage can be undone.
Doesn't it make more sense to jealously protect the river from damage in the first place, rather than cleaning up a mess later that could have been avoided?
Commentary on 11/30/2018
Print Headline: Protection first
KUAF Public Radio
By JACQUELINE FROELICH
Listen to the full report here
In mid November, the Arkansas Department of Environmental Quality ordered C&H Hog Farms to cease operations, citing potential pollution of the Buffalo River watershed. The farm has been opposed by the Buffalo River Watershed Alliance since it opened six miles upstream of the Buffalo River along Big Creek. Despite the order by ADEQ, the Arkansas Farm Bureau Federation is supporting the farm's operators in their legal push to exert their "rights to farm."
MIKE MASTERSON: Tainted water
Groundwater contamination is on the rise in our Buffalo National River's watershed, according to the U.S. Geological Survey and other sources.
Yet none of the agencies involved in this finding (USGS, the Arkansas Department of Environmental Quality [cough] and the National Park Service) is able to pinpoint the source of algae blooms that are choking miles of the country's first national river in Newton County.
A Sunday front-page news story by Democrat-Gazette environmental reporter Emily Walkenhorst outlined the group's findings.
Here are what I derived as the most significant findings, based on the article: First and foremost, the findings presented to the Beautiful Buffalo River Action Committee remain incomplete and would take years of additional research to complete, although the USGS lacks the funding to do so.
The USGS conducted tests to determine the source of increased contamination from excessive nitrates and phosphorus. Those are focused on human, cattle and poultry waste as potential culprits where Mill Creek enters the Buffalo, while similar testing for swine apparently is not planned farther downstream where Big Creek enters the river.
That matters since C&H Hog Farms with raw-waste spray fields on or near Big Creek, a major tributary of the Buffalo, has been dispensing nutrient-rich waste for more than five years atop fractured karst subsurface.
The Department of Environmental Quality denied the factory's request for a renewed operating permit last week based primarily on water quality-related studies and matters related to environmental safety. The controversy over allowing C&H to operate under its original (since expired) permit has intensified after 14.3 miles of the national river, as well as the entire length of Big Creek, are proposed to be designated "impaired" waterbodies due to E. coli bacteria, pathogens, or in the case of the final 3.7 miles along Big Creek, low dissolved-oxygen levels.
According to the news account, the studies found the Buffalo was strewn with 70 miles of algae this year, which interfered with tourists' late summer float trips along the stream. That represents about half of the 150-mile-long river, 135 miles of which flow through the national park.
In the algae study, Dr. Billy Justus, an aquatic research biologist with USGS' Lower Mississippi-Gulf Water Science Center in Little Rock, was unable to tie C&H hogs to the steady increase in mesh-like "filamentous" algae during recent summers and needed five or six more years to draw those conclusions. But funding isn't available.
Justus also said groundwater pollution is a significant problem since many in Newton County, most of which is in the Buffalo watershed, use wells for drinking water.
Dr. Nathaniel Smith, state health officer and a member of the Beautiful Buffalo River Action Committee, wondered why genetic testing isn't being conducted for swine waste, as well as humans, poultry and cattle. Some contend feral hogs in the watershed are a possible source of pollution in the Buffalo and such studies could possibly confirm or dispel that theory. He was told the Mill Creek area didn't have enough feral hogs to justify that.
David Peterson, president of the Ozark Society, said he'd like to verify the number: "I'd like to have the supposed issue of feral hogs put to rest once and for all."
Genetic sequence testing hopefully would identify which animals specifically are contributing waste to Big Creek and surrounding its confluence with the Buffalo, although my understanding is that distinguishing with certainty between feral and domestic hog waste isn't yet genetically possible.
I asked Gordon Watkins, who heads the Buffalo River Watershed Alliance, for his thoughts, based on his reading.
"C&H soil tests show all fields are ... in excess of what crops can utilize," he told me. "ADEQ cited this as a reason for the permit denial. And they continue to apply more. I think the source(s) of the algae problem may be more challenging to chase down.
"We're interested in dye tracing on Big Creek to identify where the losing section above the mouth is emerging. The most obvious answer is in the gaining stretch of the Buffalo downstream from Carver but dye tracing is needed to confirm. If true, that would show a subterranean 'shortcut' and could shed light on the algae problem, as well as explain why nutrients in Big Creek are higher upstream than at the mouth. ... We can't keep waiting while the river continues to degrade."
Watkins also referred to the insidious nature of phosphorus already accumulated in the soil, crannies and caves that characterize the fractured karst subsurface, which dye testing shows rapidly transports groundwater for miles in different directions.
After five years of spreading millions of gallons of waste on the fields around Big Creek, there's no way to know how much of such hidden "legacy phosphorus" has lodged in subterranean passages. Meanwhile, additional excessive nutrients are released by rainfall and flooding to inevitably run off into Big Creek or leach into the karst and groundwater springs for decades or longer.