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Illinois River work to decrease phosphorus needs to be open, group says, while Arkansas farmers wonder what more they can be asked to do

Openness requested after pollution ruling by Doug Thompson | January 29, 2023 at 9:07 a.m.

Environmental advocates in Oklahoma want any proposed solutions to pollution from Arkansas to be more open to the public, speaking in the aftermath of a federal court ruling poultry litter puts too much phosphorus into the Illinois River.

"For example, if part of the agreement is for removal of poultry litter from the watershed, we would want transparency in records regarding how much is removed, where it was taken and whether it is being applied in other watersheds," said President Denise Deason-Toyne of Save the Illinois River Inc.

"We will defer to the attorneys to develop a tentative agreement and will probably have more comments after we review any such proposed agreement," she said in an email.

Poultry industry figures show about 1.59 million tons of litter hauled out of the river's watershed since 2005.

Save the Illinois River is a nonprofit group based in Tahlequah, Okla., which formed in 1984. Deason-Toyne issued a statement Jan. 20, two days after U.S. District Judge Gregory K. Frizzell ruled in favor of Oklahoma's lawsuit against 11 Arkansas poultry companies. The ruling found poultry litter from the farms supplying birds to those companies pollutes the Illinois River. The river flows from Northwest Arkansas through Oklahoma to the Arkansas River.

Voluntary efforts have curtailed the release of phosphorus into the river, testing results from Arkansas and Oklahoma show and the court ruling acknowledges. Further reduction is needed, the ruling says without specifying to what degree. Phosphorus from poultry litter is a key food for algae, and algae destroys water clarity and drains dissolved oxygen from water, Frizzell said.

Arkansas and Oklahoma reached an agreement in 2012 to cooperate in keeping the river's phosphorus level at or below 0.037 milligrams of phosphorus per liter of water in the river. Levels as high as 0.07 were recorded that year. Current levels average below the agreed-upon limit, according to recent public remarks by state conservation officials from Arkansas and Oklahoma. For comparison, a teaspoon holds about 2,325 milligrams of salt.

"This ruling is a bit of a head-scratcher, honestly," said Evan Teague, vice president of environmental issues for the Arkansas Farm Bureau Federation, the state's largest advocacy organization for farmers. "It's as if everything in this ruling was frozen in time in 2009 without looking at all the activity that's transpired since then."

Frizzell's ruling regards a lawsuit filed by the Oklahoma attorney general in 2005. The lawsuit's trial ended Sept. 24, 2009. No explanation for the delay is in the 214-page ruling. A spokesman for the judge's office was reached Wednesday with a request for comment on the delay, but no response was received.

"Northwest Arkansas has done a lot of heavy lifting since then to reduce phosphorus in the watershed," Teague said. "You can't look at that in a vacuum."

Teague met with members of the Benton County and Washington County farm bureaus on Thursday night, he said Friday morning. They are concerned about the ruling, he said, because there isn't much left they can do to address its findings. Very little litter is used for fertilizer any more, one of the chief issues of the ruling, he said. Area growers have management plans for their farms to control runoff and are abiding by them, he said.

Frizzell's ruling criticized the current arrangements for controlling litter pollution as too informal. For instance, the ruling says the poultry companies tell growers to follow rules to prevent runoff of phosphorus from litter, but they make little effort to make sure those rules are followed.

The proof the judge is looking for is in the dropping phosphorus level in the river, Teague said. Phosphorus measured by state agencies for both Arkansas and Oklahoma shows steady declines since 2005, he said.

In addition, cities in Northwest Arkansas have spent about half a billion dollars in today's dollars, as calculated to account for inflation, in improving their water treatment plants since 2005.

"Those plants are close to the technological limit of what you can do to take out phosphorus and some of them are at it," he said.

The relationship between Arkansas and Oklahoma over the river's watershed has been "much more collaborative and less adversarial" than it was when the lawsuit was tried, Teague said. That's an important factor in the progress made since 2009, he said.

"There is an extraordinary amount of collaboration in improving the watershed," said Leif Kindberg, director of the Illinois River Watershed Partnership, a nonprofit group based in Cave Springs dedicated to improving the river's water quality.

The watershed partnership has set up a program to create riparian buffers, which qualify for federal tax credits, he said. Riparian buffers are strips of natural vegetation along stream banks that catch pollutants and help control erosion.

Restoring or creating wetland is another option, Kindberg said.

"I hope this ruling doesn't dampen cooperation between the two states," he added.

The two states' relations over the Illinois was confrontational in the years leading up to the lawsuit's filing in 2005, news accounts show. The two states and their residents need to work together to address watershed issues that include phosphorus, but also soil erosion and the removal of natural cover as the Northwest Arkansas region continues to develop.

Development pushes west in Northwest Arkansas at the expense of agricultural use and other open spaces, Kindberg said. This creates issues such as increased stormwater runoff from developed areas. These factors increased rate of flow in the river and the streams leading to it, he said. The faster-flowing water carries more sediments and the phosphorus in them downriver, he said.

Deason-Toyne, who is an attorney in Tahlequah, has nothing to add to the Jan. 20 statement while awaiting any tentative agreement, she said Wednesday.

The poultry companies involved said Thursday that they are still reviewing the case. Oklahoma's attorney general released a statement the day of the ruling calling the decision a victory of the state, but not giving any specifics about what Oklahoma will ask to resolve the case.

"While this decision has been a long time coming, it is important to note that in the intervening years since the filing of the suit, the poultry industry has made, or is willing to make, strong improvements in waste disposal to ameliorate the extent of the problem," Oklahoma Attorney General Gentner Drummond said.

Drummond took office Jan. 9 -- 11 days before Frizzell's ruling and 17 years, six months after one of his predecessors, Drew Edmondson, filed the lawsuit leading to the Jan. 20 ruling. Drummond is the fifth attorney general for Oklahoma to serve, including Edmondson, since Edmondson filed the suit.

Frizzell set a March 17 deadline for Oklahoma and the poultry companies to come to an agreement to fix the problem. As of Friday, neither side had asked for a delay.

The most conservative estimate given in the trial of the amount of chicken litter produced by the defendants' operations was 354,000 tons in 2009. Litter consists of waste and the wood shavings or rice hulls spread on the floors of chicken houses to absorb that waste.

Relief sought in the lawsuit includes curtailing runoff from litter. The relief could include restrictions on how much litter is used and how it can be applied in the watershed. Recommendations made by expert witnesses in the trial include removing all poultry litter outside the watershed, buffer strips to control runoff, excavation of phosphorus-laden soil, applying alum to fields to bind phosphorus there, stream bank stabilization and constructing wetlands.

Frizzell ruled out monetary damages as the trial began in 2009.

  photo  A pair of youngsters canoe down the Illinois River on Aug. 25, 2021, near the Siloam Springs Kayak Park. Visit for today's photo gallery (File Photo/NWA Democrat-Gazette/J.T. Wampler)

Print Headline: Group: Show the work on Illinois River


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