A proposed five-year ban on new medium and large hog farms in the Buffalo National River watershed cleared the Arkansas Legislative Council on Friday, after an unsuccessful bid by state Rep. Nate Bell, I-Mena, to prevent it.
The Legislative Council voted 21-20 to reject Bell's motion for the council to disapprove the proposed rule, which Bell called "a feel-good regulation that is not based in science."
The proposed rule, created in response to a large-scale hog farm built in the watershed, cleared the council two days after its Administrative Rules and Regulations Committee rejected a similar motion by Bell.
Under Amendment 92 to the Arkansas Constitution and Act 1258 of 2015, the Legislative Council has authority to block proposed state rules by most agencies.
Gov. Asa Hutchinson praised the Legislative Council's Friday action to sign off on the moratorium.
"As with any regulation, it's important to strike a balance between the rights of individual property owners and the overall health and interest of the public," the Republican governor said Friday in a written statement.
"The Buffalo is a national treasure that we as Arkansans have been entrusted to protect, and I believe that we should do everything within reason to do so," Hutchinson said.
"This temporary moratorium will allow for a thorough and conclusive study to be completed, at which time we can make a decision based on science regarding the future of these types of operations within the Buffalo River Watershed," he said.
The proposed rule will now be considered by the Pollution Control and Ecology Commission during its meeting next Friday, said Becky Keogh, director of the state Department of Environmental Quality.
The commission initially started the rule-making process after the Ozark Society and the Arkansas Public Policy Panel proposed permanently banning new medium and large hog farms in the watershed.
The proposed five-year ban reflects a compromise among environmental representatives, the governor's office and some state lawmakers.
It requires that, in five years, the Department of Environmental Quality's director initiate a new rule-making process to lift the ban or make it permanent.
That would allow the director, the commission and legislators to review the continuing study by the University of Arkansas System's Agriculture Division on the environmental effect of C&H Hog Farms in Mount Judea in the Buffalo River watershed. C&H Hog Farms, located near the western bank of Big Creek, is permitted to house about 2,500 sows and up to 4,000 piglets.
The proposed rule would have no effect on C&H Hog Farms. Environmental groups have worried about the farm's potential to pollute the river with millions of gallons of hog feces kept in lagoons or spread out as fertilizer on the rough karst terrain in the area.
The ban on new medium and large hog farms would mean no new facility could have more than 750 swine at the 55-pound level nor more than 3,000 swine below the 55-pound level.
Since C&H Hog Farms began operating, the Department of Environmental Quality has not received any applications for new medium or large hog harms in the Buffalo River watershed. The agency has been unable to issue such applications since April 2014 because of temporary bans imposed by the Pollution Control and Ecology Commission.
Bell said the proposed rule "deprives the property owner of a specific use of their property without any opportunity for scientific review.
"It is arbitrary and emotional without a basis in fact," he told fellow lawmakers. "Folks, if we set a precedent of governing on the basis of emotion, it is a dangerous precedent.
"I understand how important the Buffalo River is to all of us in Arkansas. It is a national treasure," Bell said.
The Buffalo National River -- the first to be designated a national river -- is a popular tourist spot with more than 1.3 million visitors in 2014 who spent about $56.6 million at area businesses, according to the National Park Service.
But Bell told lawmakers that "we also have a responsibility as the elected representatives of the people to uphold the Arkansas Constitution.
"We have a responsibility as elected representatives of the people to stand and to fight for government on the basis of fact, on the basis of science, and not because we feel like it," he said.
The proposed rule divided Hutchinson's two nephews in the Senate.
Senate Republican leader Jim Hendren, R-Sulphur Springs, said that "once you start saying we can deprive a little bit of property rights without compensation, where does it end?
"I think that the rule needs to be modified to put into a place a very clear stipulation that the state is prepared to compensate whatever is fair and just for what we desire, which is to protect this treasure," said Hendren, who is a nephew of the governor.
But Senate Judiciary Committee Chairman Jeremy Hutchinson, R-Little Rock, said he wouldn't consider the proposed rule "a taking [of private property rights] because it does not deprive the landowner of its use.
"It may limit it to one particular type of farm," he said.
"But there is still agriculture allowed. There is still use of the land, economic and otherwise," he said.
State Rep. Kelly Linck, R-Flippin, said UA officials have advised lawmakers that "it's going to take five years to come back ... with scientific evidence of what's happening and what's not happening.
"We're not taking away any rights of anyone that is trying to do anything," he said.
"There [are] no permits being applied for, so it is not like someone is saying, 'I want to do this with my land,' and we are saying, 'You can't do it,'" Linck said.
"If it is safe, great. If it is not safe, then we've done our job of protecting the river," he said.
The Legislature's agriculture and public health committees were hesitant to review a proposed permanent ban in 2014. The latest proposal has successfully cleared the public health committees, the Administrative Rules and Regulations Committee and the Legislative Council.
Metro on 08/22/2015