A panel of Arkansas lawmakers on Wednesday rejected proposed rules that would permanently ban medium- and large-scale hog farms from the Buffalo River watershed, dealing a setback to conservationists who have pushed for the measure.
Members of the Legislative Council's Administrative Rules Subcommittee voted not to approve the proposed revisions to Rules Five and Six presented to lawmakers by the Arkansas Division of Environmental Quality.
Lawmakers expressed concerns that the moratorium would create what Sen. Terry Rice, R-Waldron, called "a chilling effect" on agriculture in Arkansas, and raised the idea that similar measures could be enacted to encompass other watersheds within the state.
"It's not that we don't want the clean water. It's just the outcome of this is going to be detrimental to the next generation," Rice said. "And they're already under such a strain right now, you're going to have some young farmers throw up their hands and go do something else."
From his perspective, Rice said, there is concern among members of the public about a lack of due process with regard to the permanent moratorium.
In her opening remarks before lawmakers, made by videoconference, Becky Keogh, the Department of Energy and Environment secretary, stressed that the proposed permanent ban maintains protections for the Buffalo River and allows current farming opportunities to continue.
Conservationists in Arkansas fought for years to close C&H Hog Farms, an operation near the Buffalo River, over fears of possible water contamination there. The hog farm was finally shuttered in January.
C&H Hog Farms first obtained a permit under the administration of former Gov. Mike Beebe to house up to 6,503 hogs on Big Creek, a tributary of the Buffalo River.
Environmental advocates said the farming operation posed a threat to water quality in the Buffalo River watershed because of hog feces applied to fields as manure and additional hog waste held in lagoons.
A popular tourist destination and natural heritage site for Arkansas, 135 miles of the Buffalo River became a national park when Congress designated the waterway as the nation's first "national river" in 1972.
In 2014, the Arkansas Pollution Control and Ecology Commission placed a temporary ban on new medium- and large-scale hog farms within the watershed after an outcry from environmentalists because of C&H Hog Farms. The temporary moratorium was extended repeatedly, including a five-year extension granted in 2015.
C&H Hog Farms closed in January after the state under Gov. Asa Hutchinson negotiated a multimillion-dollar buyout deal last year to obtain the hog farm's land as a conservation easement.
The proposed permanent moratorium had the backing of Hutchinson, who said he was directing Keogh and environmental regulators to make the moratorium permanent when he announced the buyout deal with C&H Hog Farms last summer.
"The permanent moratorium for large and medium sized confined animal feeding operations in the Buffalo River Watershed is designed to protect for generations to come one of our most important national resources, " Hutchinson said Wednesday in an emailed statement to the Arkansas Democrat-Gazette.
"The rule presented by the Pollution, Control & Ecology Commission was adopted after public comment and multiple hearings and reviews," the statement continued. "It is my hope that the General Assembly will reconsider its initial decision and approve the rule."
During Wednesday's meeting, Sen. Missy Irvin, R-Mountain View, highlighted what she described as a lack of infrastructure at the Buffalo River, such as poorly maintained, unpaved roads for the booming tourism. She said the state is "reaping the consequences."
Although Irvin acknowledged the hog farm's permit never should never have been granted, she said there is other work to be done to fix the situation at the Buffalo National River.
"This is not the problem," she said.
"If I believed in my heart that this was the mitigating factor, then I would absolutely vote for this, but I don't believe that because I've experienced it, I've lived it, I know it, and I see what's happening," she continued.
In some ways, the decision on whether to make the moratorium permanent is about the future of the watershed instead of any existing hog farm. There are no medium- or large-scale hog farms with permits to operate in the watershed at the moment, a fact Shane Khoury, chief counsel for the Department of Energy and Environment, explained to legislators.
The moratorium would prohibit confined animal-feeding operations with 750 or more swine weighing 55 pounds or more, or operations with 3,000 or more swine weighing less than 55 pounds.
Environmental advocates with the Buffalo River Watershed Alliance and the Ozark Society had pushed for the permanent ban.
"I have to say, I was really disappointed that that committee can't see how the Buffalo River is unique in this state," said Gordon Watkins, president of the Buffalo River Watershed Alliance, in an interview Wednesday afternoon after the meeting.
Lawmakers want to argue the "slippery slope," Watkins said. "'What river is going to be next? Pretty soon it's going to be every river in the state.' And that's just not the case."
The Arkansas Farm Bureau has consistently opposed the permanent moratorium, often with objections similar to what legislators expressed Wednesday and with an eye on the potential broad impact on agriculture around the state.
"Although a lot of the conversation was on C&H Hog [Farms], it really wasn't about C&H, it was about this moratorium in the watershed," Jeff Pitchford, director of state affairs for the Farm Bureau, said in an interview Wednesday after lawmakers voted.
"Our concern from our members and farmers across the state is, 'Well then, which watershed is next?'" Pitchford said.
When asked about the extent of the Farm Bureau's outreach to legislators urging them to vote no, Pitchford said members reached out, but noted that subcommittee members seemed to have made up their minds.
Lawmakers "agreed with our viewpoint, and really some common sense on what this would mean for agriculture across the state," Pitchford said. "The need for a moratorium in the Buffalo River is just not there, and I think you saw that with today's committee meeting."
In a sign that lawmakers were uncomfortable with the permanent ban on hog farms, members of the House and Senate Public Health, Welfare and Labor committees declined to review the measures comprising the ban during meetings last week. The Pollution Control and Ecology Commission had approved the permanent ban during a May 28 meeting.
While Wednesday's decision is a blow to conservationists, there are limited avenues whereby the permanent ban could gain legislative approval.
According to Marty Garrity, director of the Bureau of Legislative Research, the Legislative Council could vote to overturn the recommendation of the subcommittee. The full Legislative Council is scheduled to meet Friday, and lawmakers could adopt recommendations from the Rules Subcommittee, including the recommendation to deny the permanent ban.
Another question is whether lawmakers will be confronted with a decision on the same proposed hog-farm moratorium again in the near future.
During Wednesday's meeting, officials from the Department of Energy and Environment acknowledged that if the permanent moratorium is not approved, the moratorium may have to go through the rule-making process again in the fall because of the parameters of the temporary five-year ban.
When the Pollution Control and Ecology Commission in 2015 enacted the five-year moratorium, at the end of that period, the director of the Environmental Quality Department was required to either move to make the moratorium permanent or lift it by September 2020.
Keogh said Wednesday that her intent was to leave the moratorium in place, not delete it.
"We don't enjoy the opportunity to bring it back in September," Keogh told lawmakers. "If it's required, I will do that."
In a nod to lawmakers' concerns, Keogh said she understands rule-making can have unintended consequences.
Nevertheless, regulators are trying "to strike that balance and keep it very targeted to Arkansas as a result of this particularly exceptional watershed and river that we are fortunate to have in Arkansas, but also obligated to protect," Keogh said.
Watkins said advocates want the moratorium memorialized in regulations so that as years go by and administrations change, the Buffalo River will continue to be protected.
"They thought in 1972 that the Buffalo River was protected and that it was a done deal, and we turned around and all of a sudden we got a hog farm in the backyard," Watkins said.
Information for this article was contributed by Michael R. Wickline of the Arkansas Democrat-Gazette.