State environmental regulators are still weighing how to proceed with a proposed permanent ban on medium and large hog farms in the Buffalo River watershed, one month after the proposal was handed a resounding defeat in the Arkansas Legislature.
In an interview on Tuesday, Beck Keogh, secretary of the Energy and Environment Department, said that at this point, the department is evaluating "how that proposal can continue."
According to Keogh, officials are exploring options to determine what is required of the agency, as well as "the best path forward" regarding the permanent moratorium.
Last month, lawmakers on the Administration Rules Subcommittee of the Arkansas Legislative Council expressed reservations about the potential chilling effects a permanent ban on industrial-scale hog farming in the prized northern Arkansas watershed might have on agriculture throughout the state, and they voted to effectively kill the proposal.
The full Legislative Council, which serves as the General Assembly's oversight body when it is out of session, affirmed the decision two days later on June 19.
The effort by state regulators to permanently ban hog farms in the Buffalo River watershed had the support of conservationists as well as Gov. Asa Hutchinson, a Republican. But the Arkansas Farm Bureau had consistently opposed the measure.
C&H Hog Farms , a large confined animal-feeding operation on a tributary of the Buffalo River, closed in January as a result of a deal with the state. The closure followed years of controversy, as environmentalists raised concerns that hog waste stored on the property would foul water quality.
The proposed ban would have forever barred certain categories of medium and large hog farms from the watershed: those with 750 or more swine weighing 55 pounds or more, or with 3,000 or more swine weighing less than 55 pounds.
Keogh said the position held by regulators is that a temporary moratorium on hog farms remains in place and will stay in place until rules are modified to eliminate it.
A five-year ban on medium and large hog farms near the Buffalo River was previously approved by the Arkansas Pollution Control and Ecology Commission in 2015. The temporary ban required environmental regulators to either make the ban permanent or abandon it after five years.
Keogh said her understanding is that as the director of the Division of Environmental Quality, she is required to take action on the hog farm measure five years after the effective date of the temporary ban, which would mean addressing the issue by September.
"That is the date we're looking at closely to make sure that we're in compliance with that rule-making," Keogh said.
Speaking to legislators last month as they considered the permanent ban, Keogh implied that if lawmakers rejected the measure, her agency would bring the proposal back using the rule-making process, if that was required.
On Tuesday, Keogh said there is still an open question as to what is required under the current regulations.
At the moment, she said, officials are still evaluating whether the agency must bring back the proposed permanent moratorium again in the fall, or if the Environmental Quality Department's efforts have already satisfied the requirement included in the 2015 temporary ban.
Asked why the agency does not know the next step at this time considering the proposed ban failed in the Legislature weeks ago, Keogh said she has asked her officials to evaluate it. She also emphasized that officials want to ensure the rule-making will be consistent with the law while respecting the General Assembly's role.
"We hope to have an answer very soon," she said, adding that she could not give a specific date when officials will know more.
"I think we can be assured that in this period of time, we still have a moratorium in place," Keogh said.
Keogh said officials involved with studying the issue include Shane Khoury, the Energy and Environment Department's chief counsel, as well as Pollution Control and Ecology Commission Administrative Law Judge Charles Moulton.
Complicating the Legislature's rejection of the permanent hog farm ban is the fact that by rejecting revisions to Rules Five and Six, which together made up the proposed permanent ban, the Legislature also rejected revisions to Rule Six related to a federal pollutant discharge permitting program.
Those rule changes included revisions needed to bring Arkansas in compliance with updated federal regulations governing pollutant discharge under the Clean Water Act, rules known as the National Pollutant Discharge Elimination System.
At some point, Arkansas will have to approve these revisions to put the state in conformity with requirements from the U.S. Environmental Protection Agency that allow the delegation of regulatory enforcement to the state, Keogh said.
For regulated entities that discharge pollution into water, permitting authority being held by the federal government versus the state is an important distinction, Keogh said.
She explained, "It's always been their preference, as well as the Legislature's preference, that Arkansas retain that delegation and implement the program at the local level," rather than have the EPA implement the program in lieu of state regulators, Keogh said.
Keogh said officials with the state agency's Office of Water Quality are monitoring the situation closely and are in communication with the EPA.
Despite the support of conservationists and the governor, lawmakers' recent rejection of the permanent hog farm ban appears to have sent the measure into a kind of limbo, at least until the Energy and Environment Department finalizes its strategy.
In an emailed statement provided by a spokeswoman on Tuesday, Khoury told the Arkansas Democrat-Gazette, "While the moratorium remains in place, we continue to evaluate what's required of additional rule-making regarding the moratorium and adoption of federal requirements in Rule 6."
After legislators on the Administrative Rules Subcommittee rejected the proposal, Hutchinson in a statement said the measure "is designed to protect for generations to come one of our most important national resources."
"The rule presented by the Pollution, Control & Ecology Commission was adopted after public comment and multiple hearings and reviews," Hutchinson said at the time. "It is my hope that the General Assembly will reconsider its initial decision and approve the rule."