http://www.ktlo.com/2018/11/27/hearing-in-hog-farm-case-set-in-baxter-county-circuit-court/

Hearing in hog farm case set in

Baxter County Circuit Court

C&H Hog Farms has responded to the state's official denial of a new permit by asking the Newton County Circuit Court to hold the Arkansas Department of Environmental Quality in contempt of court. The Arkansas Times reports a hearing on several motions in the case is scheduled for Dec. 4th in Baxter County.

Last week the ADEQ denied C&H the needed permit for disposal of liquid hog waste. The denial was based upon the department's review of evidence of environmental risk — due to the underlying karst geology, which can allow waste to seep through and contaminate groundwater, as well as the impacts of land-applied waste washing into the nearby Big Creek, a tributary of the Buffalo River, and eventually into the Buffalo itself.

The Times reports while this denial would technically begin a process mandating C&H cease operations, it noted the decision was likely to be appealed by C&H — and the hog farm would likely continue to operate thanks to a recent reprieve from Newton County Circuit Court. Asked last week about what would come next in the wake of its permit denial, an ADEQ spokesperson emailed, "ADEQ’s final permitting decision is subject to review, therefore ADEQ cannot comment at this time."

C&H has not yet filed an appeal to that permitting decision, but it did promptly file a motion in Newton County Circuit Court asking the department be held in contempt of court for proceeding with the comment period and issuing a final decision while C&H's previous appeal — which involves a separate order issued by the Arkansas Pollution Control and Ecology Commission — is still ongoing.

C&H to continue to operate its facility...until further order of this court" and that appeared to halt the ADEQ from processing the public comments it was receiving.

On Nov. 20th, two days after receiving notice the ADEQ had issued the final permit denial, C&H filed a new motion in Newton County Circuit Court arguing the permit decision violated Putman's stay order and alleging the ADEQ should therefore be held in contempt of court saying, "On Nov. 19th, with knowledge of this court’s stay order, ADEQ issued its permit decision. ADEQ did not have jurisdiction to issue the permit decision, and the agency's conduct was in violation of the court’s stay order regarding Minute Order No. 18-20. In addition, ADEQ’s permit decision provides for a process to shut down C&H’s operations, contrary to the court’s stay order."

These developments have led to a hearing on several motions in the case being set for Dec. 4th in Baxter County. The C&H motion to require ADEQ to show cause why it should not be held in contempt of court isn’t on the agenda yet — although it may be if C&H requests it.

Keep in mind: The Newton County Circuit Court case is an appeal of a separate action taken by the Arkansas Pollution Control and Ecology Commission, not ADEQ.

Richard H. Mays, attorney for groups attempting to stop operation of the C&H in the watershed — who filed to intervene in the Newton County Circuit Court case — explained the legal gymnastics C&H is attempting with this latest motion saying,
"The unusual aspect of it is C&H is asking ADEQ be held in contempt of a court order in a case in which it isn’t a party or to which the order is not directed. The Arkansas Pollution Control & Ecology Commission is a party, and the order was directed to it, but the Commission is a separate and distinct legal entity from ADEQ."

The intervenors have previously argued since ADEQ is not a party at all in C&H's Newton County Circuit Court appeal of the APCEC's order, the court did not have jurisdiction to issue a stay against a wholly separate substantive action taken by ADEQ.

The original permit C&H was awarded was discontinued altogether by the state, but C&H continued to operate for years on an expired permit.

Arkansas Times

More legal wrangling as C&H tries to hold on to hog feeding operation in wake of permit denial

Posted By David Ramsey on Tue, Nov 27, 2018 at 9:20 AM 

C&H Hog Farms has responded to the state's official denial of a new permit by asking the Newton County Circuit Court to hold the Arkansas Department of Environmental Quality in contempt of court. A hearing has been set for next week. 

We reported last week on the final decision from the ADEQ, denying C&H the needed permit for disposal of liquid hog waste. The denial was based upon the department's review of evidence of environmental risk — due to the underlying karst geology, which can allow waste to seep through and contaminate groundwater, as well as the impacts of land-applied waste washing into the nearby Big Creek, a tributary of the Buffalo River, and eventually into the Buffalo itself. 

While this denial would technically begin a process that would mandate that C&H cease operations, we noted that the decision was likely to be appealed by C&H — and that C&H would likely continue to operate thanks to a recent reprieve from Newton County Circuit Court. Asked last week about what would come next in the wake of its permit denial, an ADEQ spokesperson emailed, "ADEQ’s final permitting decision is subject to review, therefore ADEQ cannot comment at this time."

C&H has not yet filed an appeal to that permitting decision, but it did promptly file a motion in Newton County Circuit Court asking that the department be held in contempt of court for proceeding with the comment period and issuing a final decision while C&H's previous appeal is still ongoing. 

Here's the convoluted backstory: In September, the ADEQ proposed a draft decision to deny the permit. State officials then asked for public comments. C&H went to court and asked for a stay, pending appeal. The case is a convoluted legal thicket involving jurisdictional issues, a previous permit denial, and multiple state agencies — but the gist is that Newton County Circuit Court John Putnam issued a stay order that "allow[ed] C&H to continue to operate its facility is continued until further order of this court" and that appeared to halt the ADEQ from processing the public comments it was receiving. 

On November 20, two days after receiving notice that the ADEQ had issued the final permit denial, C&H filed a new motion in Newton County Circuit Court arguing that the permit decision violated Putnam's stay order and alleging that the ADEQ should therefore be held in contempt of court: 

On November 19, 2018, with knowledge of this Court’s stay order, ADEQ issued its permit decision. ...  ADEQ did not have jurisdiction to issue the permit decision, and ADEQ’s conduct was in violation of the Court’s stay order regarding Minute Order No. 18-20. In addition, ADEQ’s permit decision provides for a process to shut down C & H’s operations, contrary to the Court’s stay order. 

A hearing on the motion is scheduled for Dec. 4 at Baxter County Courthouse in Mountain Home. 

The original permit that C&H was awarded was discontinued altogether by the state, but C&H continued to operate for years on an expired permit. The wheels of justice grind slowly; in the mean time, millions of gallons of liquid hog waste will continue to be disposed of by a tributary of the Buffalo National River.

Probe: Area of Buffalo River taintedIn groundwater, pollution on rise

by Emily Walkenhorst | Today at 3:21 a.m.

Federal research in the Buffalo River's watershed shows increased pollution in the groundwater, according to a U.S. Geological Survey presentation prepared this month.

Researchers have not been able to tie the presence of algae to C&H Hog Farms, a large industrial hog farm located on Big Creek, a Buffalo tributary, in a study that could take years to complete.

The Buffalo, the country's first national river, had 70 miles of algae this year, disrupting tourists' late summer trips down the waterway. That's about half of the 150-mile Buffalo River, 135 miles of which are in the national park.

The preliminary findings presented earlier this month to the Beautiful Buffalo River Action Committee come from multiple studies conducted by the U.S. Geological Survey, the National Park Service and the Arkansas Department of Environmental Quality.

The state Environmental Quality Department denied a new operating permit for C&H Hog Farms last week, citing, among several reasons, that the farm could be contributing to water-quality issues in Big Creek and the Buffalo.

Research presented to the committee is not complete, and in the case of algae, it could take several more years to determine the sources of the problem. The research also has implicated other animal agriculture in the watershed as potential sources of elevated nutrients -- algae-causing phosphorus and nitrates.

Buffalo River Watershed Alliance President Gordon Watkins said his organization has been careful, in the absence of strong evidence, not to link C&H Farms to algae growth. Still, the group is concerned about any possible increase in algae-causing nutrients in the river, which is surrounded by animal agriculture activities.

Three studies are focused on the Buffalo's water quality. Two researchers with the U.S. Geological Survey and another researcher from the Environmental Quality Department studied water quality issues and sources of those issues in Mill Creek.

Researchers from the Park Service, U.S. Geological Survey and Geological Survey's Lower Mississippi-Gulf Water Science Center studied the Buffalo's water quality above and below its confluence with Big Creek.

Billy Justus, an aquatic research biologist with the Lower Mississippi-Gulf Water Science Center in Little Rock, examined the growth of algae on the river.

The likely sources of bacteria in Mill Creek, a tributary of the Buffalo, are cattle, poultry and humans, Justus said. In Mill Creek, the U.S. Geological Survey is testing the DNA of waste to determine its source.

Researchers can determine what type of creatures are contributing to the pollution through genetic sequence testing of their waste. Genetic sequences of different animals' intestinal microbes are unique.

Samples taken on Mill Creek below the Marble Falls wastewater treatment plant detected more human waste than from cattle, the two groups tested. Human waste detected was much lower upstream, where cattle waste was far higher as the sampling moved closer to cattle farms.

Researchers do not plan to test for traces of hog manure. Dr. Nathaniel Smith, state health officer and a member of the Beautiful Buffalo River Action Committee, asked why not, if feral hogs are expected to be a possible source of pollution in the river. Justus said he didn't believe the Mill Creek area had enough feral hogs to justify the research.

How many feral hogs are in the watershed is something David Peterson, who is president of the Ozark Society and who attended the committee meeting, would like to have a better measure of.

"I'd like to have the supposed issue of feral hogs put to rest once and for all," Peterson said.

He said more domesticated hogs, cattle and poultry farms are in the watershed than feral hogs likely are. He also said those are a bigger risk than human visitors to the Buffalo, who he said are outweighed 400 times by domesticated animals in the watershed.

Nutrients are higher in the groundwater around Mill Creek than in the creek's surface water, researchers have found.

The karst terrain surrounding the Buffalo River can cause surface water to seep underground.

Pollution in the groundwater could be a problem for decades, Justus said.

Many people in Newton County, nearly all of which is in the Buffalo's watershed, get their drinking water from groundwater wells.

"It's very significant," Justus said.

Nutrients were at times higher, but not significantly, in Big Creek after C&H Hog Farms went into operation, Justus said.

"What we're seeing now is comparable to old data," Justus told the Beautiful Buffalo River Action Committee earlier this month.

However, Justus said, the creek is a having a major impact on the Buffalo.

Big Creek is the only tributary of the Buffalo to be considered "impaired" by the Arkansas Department of Environmental Quality, in part for elevated E. coli and in part for diminished dissolved oxygen. The Buffalo is additionally considered impaired for several miles upstream of its confluence with Big Creek and several miles downstream of it, specifically for E. coli levels.

In the algae study, researchers could not link C&H Hog Farms to the increase in "filamentous" algae on the river in recent summers, Justus said. Such algae is green and resembles mesh.

Researchers have found that gravel bars along the river have higher phosphorous concentrations, likely contributing to phosphorus in the river.

Some springs, including tributaries, also had higher than expected nitrate and phosphorous concentrations than researchers expected, much higher than the concentrations in "mainstem" sites, or points on the Buffalo.

Justus wants to do additional years of research on the algae problem, although the U.S. Geological Survey does not have funding to do so. He said he thinks another five to six years is needed to determine the source of the algae.

"If there's more money, we'd love it and can match it," Justus told the committee.

Metro on 11/25/2018

Arkansasonline

No to new permit, state tells hog farm in Buffalo River watershed

by Emily Walkenhorst November 21, 2018

The Arkansas Department of Environmental Quality has denied a new operating permit for C&H Hog Farms in the Buffalo National River watershed, which means the farm must close because its permit has expired.

This week's ruling is the department's final one in the case, but the farm's owners can appeal it.

In denying the permit, the department cited water-quality issues and insufficient geological investigations of the rough karst terrain on which the farm sits.

Information submitted with the permit application didn't "demonstrate full compliance with permitting requirements," the department wrote, and "the record contains information that the operation of this facility may be contributing to water quality impairments of waters of the state."

The reasons cited this week were the same as those cited previously by the department, as recently as January. They refer to the Agricultural Waste Management Field Handbook, which was also referred to during a public comment period on the permit as being necessary in the department's regulations regarding facilities in geologically sensitive areas.

C&H Farms sits along Big Creek, 6.6 miles from where the creek flows into the Buffalo River. The farm was permitted to house 6,503 hogs. It is the only federally classified medium or large hog farm in the area.

Conservation groups have opposed the hog farm operating within the river's watershed, asserting that hog manure in the karst terrain of the watershed raises the risks that the river and its tributaries can become polluted.

Unlike January's permit denial, the denial Monday was expected, and reaction to it was more subdued. It also signaled another element of the case that can be appealed and join other legal cases, which could slow or stop the closing of the farm.

"It's a good thing, but we understand it's not over," said Gordon Watkins, president of the Buffalo River Watershed Alliance, which was formed in 2013 to oppose C&H's operation.

The permit denial is a start to helping clean up the Buffalo River, which has elevated E. coli levels, Watkins said.

"If they stop C&H's operation today, they're still going to have to monitor Big Creek and the Buffalo for phosphorus for years," said Watkins, noting that it is unclear whether C&H has contributed to algae growth in the river.

Steve Eddington, a spokesman for the Arkansas Farm Bureau, said the department's decision was "pretty well telegraphed." He said he was unaware of anything the Farm Bureau might do to help C&H.

"We stand behind this farm family and the science behind the farm," Eddington said.

The farmers appealed the department's January denial of their permit, which the Arkansas Pollution Control and Ecology Commission in August remanded to the department for re-issue. The department issued a draft denial in September and the final denial Monday. Commenters received notice Monday evening.

The farmers also appealed the commission's decision to remand the permit back to the department. That case has not been settled, but a Newton County circuit judge issued a stay on the remand in October.

Bill Waddell, an attorney for C&H, said the farmers will appeal the department's latest denial "if necessary."

"We believe the permit decision was null and void because ADEQ acted without jurisdiction while the matter was on appeal, and the decision was made in violation of the stay order issued by Judge John Putman," Waddell wrote in an email to the Arkansas Democrat-Gazette.

Waddell and fellow attorney Chuck Nestrud filed a show-cause motion Tuesday in Newton County Circuit Court in their appeal of the commission's August remand. The motion asks Putman to order the department to "show cause" as to why the department should not be held in contempt of Putman's stay order.

The commission is the department's appellate and rule-making body. The department is not a party in the appeal, but the commission is.

Because C&H is in the Boone Formation, a karst area in the Ozarks, C&H needed to do a "detailed geological investigation" of the land where manure might be kept or applied to land as fertilizer, the department wrote in its 10-page "Statement of Basis" for denying the permit Monday. The department reached the same conclusion in January, but C&H did not conduct additional geologic testing.

Karst topography is a particularly rocky surface characterized by sinkholes and caves. It's formed from the chemical weathering of other rocks, according to the Encyclopedia of Arkansas History & Culture. When water hits karst terrain, it often funnels into groundwater through cracks in the rocks.

Facilities in such sensitive areas also need emergency action plans, the department determined, which C&H does not have. That was also among the department's reasons for denying the farm's permit in January.

The department's Statement of Basis includes explanations of the types of information C&H should have supplied, per the Agricultural Waste Management Field Handbook. That information included a groundwater flow direction study from waste storage ponds; geologic investigations below the manure ponds; assessment of manure pond berms; quality assurance of manure pond construction; assessment of high-risk land application sites; manure pond operations and maintenance plan; and an emergency action plan.

C&H also may be contributing to impairment in Big Creek and the Buffalo National River, the department wrote. The department listed the waters as "impaired" earlier this year because of elevated E. coli levels and diminished dissolved oxygen levels. Impairment means at least one of several negative elements in the water exceeds water-quality standards.

A 14.3-mile segment toward the middle of the 150-mile Buffalo River is impaired with E. coli, but the rest of the river is not considered impaired, according to data collected through early 2017. About 15 of the 19 miles of Big Creek also are impaired because of E. coli, and the final 3.7 miles of the creek before it flows into the Buffalo River are listed as impaired because of abnormally low dissolved oxygen levels.

Phosphorous levels in the soil where manure is being applied have increased in some places, the department noted.

Nitrate levels have risen in the ephemeral stream and house well at the farm, the department noted. An ephemeral stream flows only during rainfall or a little after rainfall.

The Arkansas Farm Bureau has disputed the department's citation of house well data, stating that the farmers previously measured water in a cistern as the "house well" before this year. The cistern picked up water from the well but also other sources on the farm, the Farm Bureau said.

No research has placed blame on C&H for any problems in the Buffalo River, Eddington said. Big Creek has less E. coli downstream of the farm, the Farm Bureau has noted.

"More than anything else, the science has shown and continues to show that C&H is not causing a problem," Eddington said. "That's been our belief and our argument all along, and we stand by that today."

The Arkansas Phosphorus Index that calculates the amount of manure that can be applied to land is fundamentally flawed because it doesn't account for differences in karst terrain and undervalues the phosphorous levels in soil, according to Watkins.

"API is not so much a tool to assess risk as it is a tool to allow waste disposal," he said, adding that he thinks the department's Statement of Basis indicates that officials are beginning to see its flaws.

The department declined to comment about the permit decision because it is subject to review, spokesman Nate Olson said.

The impairment listings and the data from the farm "further illustrate the need for C&H to provide the appropriate geotechnical data to demonstrate that this facility has been constructed" and assessments have been conducted in accordance with the handbook, the department wrote.

C&H is owned by cousins Jason Henson, Philip Campbell and Richard Campbell. Henson did not respond to a request for comment Tuesday.

C&H's owners have floated the idea of constructing even larger farms farther west. They held a community meeting in 2017 in Johnson County to explain their intention to apply for a permit for a farm in Hartman Bottoms near the Arkansas River. Many nearby residents objected because of the expected smell and the proposed location in a flood plain. The farmers never applied for that permit.

They applied this summer for a permit to build an even bigger farm in a Franklin County flood plain, which also was opposed by neighbors. They withdrew the application last week after the department informed the farmers that the application was incomplete.

The department listed 27 deficiencies in the permit application, including a lack of emergency planning, a lack of detail and inconsistencies. The department also noted that the area had flooded for a total of 12 days in the past 12 years above the level at which the farmers said they would build up their facility to avoid floodwaters.

Henson informed the department in a letter dated Nov. 15 that the farmers would withdraw the application and reapply later so that the timeline for department review would restart.

Metro on 11/21/2018

Arkansas Times

National Parks Conservation Association applauds ADEQ's denial of hog farm permit

Posted By David Ramsey on Tue, Nov 20, 2018 at 7:01 PM

Arkansas Times

ADEQ issues notice of final permit denial to C&H Hog Farm; appeal looms 

Posted By David Ramsey on Tue, Nov 20, 2018 at 10:31 AM 

PERMIT DENIED: Hog feeding operation near Buffalo River will likely appeal. 

The latest in the fight over the 3,000-hog feeding operation near the Buffalo River watershed: 

The Arkansas Department of Environmental Quality yesterday issued notice of its final decision in denying a permit to C&H Hog Farm. No surprise here, making official the proposed denial issued by state officials in October. The decision is sure to be appealed. For now, C&H will likely continue to operate, pending appeal, thanks to a recent reprieve from Newton County Circuit Court. 

ADEQ denied the permit for disposal of liquid hog waste based upon its review of evidence of environmental risk — due to the underlying karst geology, which can allow waste to seep through and contaminate groundwater, as well as the impacts of land-applied waste washing into the nearby Big Creek, a tribute of the Buffalo River, and eventually into the Buffalo itself. 

The Farm Bureau, which has tried to flex its considerable lobbying muscle to protect C&H, disputes this evidence. They'll presumably continue to be an active player as the fight drags on. 

C&H has generated controversy since it was first awarded an ADEQ permit in 2012. Several years back I went to Newton County for a deep-dive report on C&H and its impact on the community. 

The original permit that C&H was awarded was discontinued altogether by the state, but C&H continued to operate for years on an expired permit. Then came the bureaucratic maze: C&H had already been denied a different type of permit in January before applying for this new type of permit, which was officially denied yesterday. The game here is to bog down the regulatory system in enough paperwork and processes to continue to operate despite no longer having an approved permit to do so. 

Next up is the appeal process, which will likely drag on for months more as the shit seeps in to the water. 

Agency denies new operating permit for Arkansas hog farm

The Arkansas Department of Environmental Quality has denied C&H Hog Farms a new operating permit.

The department issued its final ruling following a public comment period, citing water quality issues and insufficient geological investigations of the rough karst terrain on which the farm is located.

The decision means the farm must close, but the decision can be appealed.

The farmers appealed the department’s January denial of their permit, which a commission in August remanded back to the department for re-issue. The department issued a draft denial in September and the final denial Monday.

The farmers also appealed the commission’s decision to remand the permit back to the department. That case has not been settled, but a judge issued a stay on the remand in October.

C&H Hog Farms sits on Big Creek, about 6 miles from where it meets the Buffalo National River, and is permitted to house 6,503 hogs. The farm is the only federally classified medium or large hog farm in the area.

Conservation groups have opposed the operation of the hog farm within the river’s watershed, asserting that land application of hog manure on the rough karst terrain of the watershed poses a risk that the river and its tributaries can become more easily polluted.

Thank you for contacting me to express your concerns regarding the operation of a hog farm near the Buffalo National River.   It is good to hear from you.

I strongly support the Buffalo National River and I enjoy visiting and floating the river with my family and friends.   I support providing the resources the Park Service needs to protect the river and maintain the park as a beautiful destination enjoyed by countless Arkansans and citizens from across our country.   

Also, I was pleased to be a leading supporter of federal funding for a water project that will protect the Buffalo River by providing the resources to use Bull Shoals Lake as an alternative water source for municipal and rural community water systems in the region, instead of forcing these communities to use water from Buffalo River tributaries.

We are working hard to make sure all procedures and processes are followed when project reviews occur.   In the case of the farm you mentioned, the USDA Farm Service Agency facilitated a loan.   When federal funding, such as an agricultural loan, is involved and multiple federal and state agencies are required to review a project for legal compliance, it is very important that the agencies work together to do their job in a thorough and timely manner.   The public notification process is very important to make sure that impacted stakeholders have a voice.    This particular matter is subject to litigation.    As a member of the legislative branch, I do not interfere with ongoing judicial proceedings.    As a general rule, the agencies should provide a fair and transparent process for farmers while promoting conservation and providing commonsense environmental protection.    Please know that I will keep your thoughts in mind and will continue to support both the Buffalo River and our farmers.

Again, thank you for contacting me on this very important issue. Please be sure to sign up for our  e-newsletter to stay informed on what we're doing on behalf of Arkansans. I look forward to your continued correspondence.

Sincerely,

John Boozman
U.S. Senator

Eureka Springs Independent

Why the Buffalo River is having an allergic reaction

November 14, 2018

Recently I attended yet another public hearing in the cafetorium of the Jasper High School in Newton County. This time it appears, at least for now, that the tide is turning. ADEQ denied C&H Hog Farms a new Reg. 5 permit to replace the Reg. 6 permit which enabled them to evade public notice and rush to get their facility built before anyone could question the placement along a major tributary to the Buffalo National River.

It seems that in their hurry, they failed to do some things that might have qualified them for the Reg. 5 permit. Waste lagoons were not properly constructed, as revealed in depositions now public. We already knew the environmental assessments were cursory and inadequate because a judge who reviewed them found them so.

The critical issue of the presence of karst, the geologic formation that creates lovely bluffs, springs and caves along the Buffalo, is the same stuff that makes our area vulnerable. What we do on the land impacts water quality everywhere, but in areas of karst, transmission into and through the ground can be almost as rapid as runoff, and far more insidious. Water running through crevices and crannies below the surface can’t be seen. The ground feels so solid that it’s easy to ignore evidence that it often acts more like a sieve.

Since C&H began growing hogs, they have spread 14 million gallons of liquid waste onto fields in the Buffalo watershed. Most of the initial fields already tested at above optimum before they began using them, and came with the recommendation that 0 additional phosphorus be applied, so it’s not surprising that the operators quickly needed more land to dispose of the waste. They call it fertilizer, and it is, until application exceeds the agronomic needs of the fields.

What happens when more is applied than the grasses can take up? It binds with the soil, and either trickles through the ground during rainfall (like a leak in your roof), or washes off into tributaries during heavier rain.

Due to an error in calculations, experts estimate that perhaps as much as 10 times more phosphorus was applied to the spray fields than could be used as fertilizer. That’s a lot of loose nutrients that have to go somewhere. Eventually they end up in the largest waterway, the Buffalo River.

It didn’t happen overnight. The first couple years saw little change. In 2016 the first areas of unusual algal blooms were noted. They were larger in 2017, and this year more than 70 miles of waterway filled will algae floating on the surface and wafting in the current below. Most is ugly but harmless, but some is bacterial and can produce toxins.

While two sides argued about a confined animal feeding operation (CAFO) in the watershed, the river was making it clear to all who looked that something was out of balance and getting worse.

Residents from around Newton County came to the public hearing to express their views, and some claimed there had always been algae in the river in late summer. Algal growth is a natural process, it’s true. But this year we saw it growing in the spring, and by mid-summer it was covering large areas below Carver and increasing all the way down river.

Data collected by Big Creek Research and Extension Team, our tax-funded research study, was indicating problems although team members kept saying they needed more data and appeared to avoid analyzing data they didn’t like. Scientists evaluated the raw data themselves and it revealed clear trends.

USGS monitoring, meanwhile, showed oxygen in Big Creek falling below standards for a healthy waterway, over several seasons, enough to be officially designated as impaired. E. coli counts exceeded safe levels for contact recreation along the same stretches of the Buffalo where dye tests had indicated a direct subsurface connection to the hills surrounding C&H and its spray fields.

If testing had been allowed on C&H property, would the results have been different? It’s unlikely, but the owners refused permission.

Many residents continued to contend there is no real proof that the hog CAFO was causing the problems. The representative of the Arkansas Pork Producers loudly proclaimed this to be the case, and that, further “something had shifted in Little Rock” that caused ADEQ to change their minds about issuing a new permit.

What changed was that the science began to back up what geologists, environmentalists and supporters of the river said all along; this sensitive area was exactly the worst place for such a facility to be sited. Six thousand hogs in one place, with tons of feed trucked in and tons of waste hitting the hillsides is putting the ecosystem out of balance. It can’t go on.

The Farm Bureau is fear mongering, telling farmers they will be next. But since when have “farmers” needed permits?  Industries need permits to operate industrial facilities. The meat industry uses contract growers to create the façade of a “family farm” while environmental safeguards require that large amounts of sewage, whether from animals or humans, must be regulated to avoid impacting the environment. That is why C& H has to have a permit.

Cargill came into the region with the aim of taking one of our state’s more vulnerable areas and making it a foothold for many more hog CAFOs. Being an astute private conglomerate, they have seen rising public awareness of the toll massive hog operations are having on the resources and rural communities in other states. They sold out to JBS, a Brazilian multi-national corporation with a dismal track record of compliance.

When the concept of industrial scale animal production began, right here in Arkansas, farmers had to be re-educated to see animals as “widgets,” not living creatures deserving of consideration. It was especially hard for hog farmers, who know how intelligent pigs are and appreciate them.

As animals were recast as things, farmers were also remade, turned into contract growers in a system where they would own the farm and buildings, but not the animals they raised.  From being independent producers they’ve been reduced to cogs in the industrial agri-machine now controlling most food production and distribution.

Farmers and environmentalists have a lot in common. Both groups recognize the value of clean water and healthy ecosystems.

Lin Wellford

NWAonline

Discharge rules get reaction Some see wastewater nutrient trading as premature

by Emily Walkenhorst November 13, 2018

Establishing a program to trade nitrogen and phosphorous credits among wastewater dischargers is premature without numbers stating what the limits are for those nutrients in Arkansas waters, commenters on a proposed state regulation said.

The complaint -- and many others -- is the same as six months ago, when people first had an opportunity to comment on an earlier draft of the same proposed regulation. Two dozen people or organizations submitted feedback the second time.

Four cities in Northwest Arkansas -- Bentonville, Fayetteville, Rogers and Springdale -- are petitioning environmental regulators to establish a program that allows entities with wastewater discharge permits to avoid exceeding their permit limits by trading with other entities for more wiggle room.

"Nutrient trading," as it's called, allows someone who is below his permit limits for phosphorus and nitrogen to trade the excess allowance permitted to someone else who is above his permit limits or concerned about being above them. Under the proposal, the trades must result in a net reduction of those nutrients being discharged or "loaded" into the water.

In Northwest Arkansas, discharge limits related to a nutrient crackdown in the Illinois River watershed have caused five wastewater treatment plants' permits to be placed on indefinite hold while the utilities find a way to comply. The utilities' permits remain active, despite expiring years ago, under Arkansas Department of Environmental Quality administrative continuances.

Phosphorous concentrations in the Illinois River remain higher than Oklahoma's numeric phosphorous standard for the river downstream.

The cities will respond to each comment and make any modifications they deem necessary before they proceed with the rest of the rule-making process, which requires legislative approval. Gov. Asa Hutchinson approved the first draft of the rule-making in January.

The cities amended their first draft to incorporate suggestions and address common concerns. Most of the concerns are repeats of previous comments or concerns about changes from the first draft to the second draft.

Numerous commenters contended that the new regulation was premature because Arkansas doesn't have numeric nutrient standards for its waters. Arkansas has narrative nutrient standards, which describe the ideal conditions of water bodies.

Arkansas Department of Environmental Quality officials have expressed an interest in establishing numeric standards and have begun evaluating regions of the state but have described the task as arduous.

Arkansas should establish a numeric nutrient baseline measurement where trades are proposed to occur, the Buffalo River Watershed Alliance wrote.

Not having numeric criteria, or even an implementation plan for the state's water anti-degradation policy, means the state can't ensure that a trade will result in a reduction of nutrient loading in a watershed, or protect and maintain high-quality waters, the White River Waterkeeper wrote.

"This lack of numeric nutrient criteria in Arkansas is a fundamental flaw in being able to track and measure the effectiveness of this proposed trading program," wrote Ellen Carpenter, a retired department water division chief.

The cities, and their attorney Allan Gates, have argued for less specificity in the regulation, which would encourage more trades to take place. In their draft response to the last round of comments, they contended that gathering, measuring, establishing and documenting in-stream water quality conditions would be a Herculean effort and "trade prohibitive."

Under the proposed regulation, trades will be conducted using numeric nutrient limits in discharge permits, which may be based on narrative nutrient standards in Arkansas waters or another state's numeric nutrient standards downstream of an Arkansas water body.

The regulation calls those "water quality-based permit limits."

The Beaver Water District disagrees with referring to most total phosphorous permit limits as "water-quality based" because of the lack of numeric criteria, forcing most limits to be "derived from some sort of Best Professional Judgment/technology-related analysis," the district's comment reads.

Commenters also expressed concern about who would inspect a trade.

The Arkansas Department of Environmental Quality director would approve a trade, but who would be responsible for ensuring that the trade is working as planned is unclear, commenters said. Several said the department should have the authority to monitor them if it had the authority to approve the trades and write them into water discharge permits.

The Arkansas Farm Bureau argued that the Arkansas Natural Resources Commission was the better agency of the two to conduct inspections that involved "non-point" sources of discharge, meaning the discharge doesn't come through pipes that empty directly into a water body. Commission staffers already have expertise with non-point sources, which are often farms and ranches, wrote John Bailey, Farm Bureau director of environmental and regulatory affairs.

As a part of their everyday work, the commission handles non-point source best management practices, and the department regulates point sources, Bailey wrote. Bailey asked that language in the first draft giving the commission the responsibility to investigate non-point source trades be re-inserted.

"The proposed language would eliminate regulatory confusion," Bailey wrote.

Bailey asked the Arkansas Pollution Control and Ecology Commission in September to re-insert the language into the second draft of the regulation before it approved the new rule-making process, but the commission declined. Some commissioners expressed concern that two agencies having investigative authority could cause confusion.

The Arkansas Natural Resources Commission submitted a comment in October supporting the old language and stating that staffers were willing and able to inspect trades involving non-point sources.

Other comments conveyed worries that the proposed regulation doesn't account for geographic differences across the state or include sufficiently specific directions on evaluating trades or how the approval of a trade may be appealed.

The Natural Resources Commission and other commenters also argued that any revision of the proposed regulation must go back to the statewide Nutrient Trading Advisory Panel for approval before initiating a rule-making process on it, citing Act 335 of 2015, which authorized the creation of a nutrient trading program.

Metro on 11/13/2018