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