Hog farm got off easy, judge finds

Environmental study in for redo

A federal judge said Thursday that he will file an injunction against loan guarantees for a Newton County hog farm and require a federal agency to redo an environmental assessment of the farm and its potential effect on surrounding wildlife habitats, including the Buffalo National River.

U. S. District Judge D. Price Marshall Jr. made the ruling in a civil suit filed in August 2013.

In the lawsuit, lawyers for the plaintiffs, which include the Ozark Society, the Arkansas Canoe Club and the National Parks Conservation Association, alleged that agents of the Farm Service Agency ignored several federal laws, including the Endangered Species Act and the National Environmental Policy Act, when it conducted its assessment and issued a “finding of no significant impact” for C&H Hog Farms in Mount Judea.

The federal agency also failed to consult with other agencies, including the U.S. Fish and Wildlife Service and

the National Park Service, or with the Buffalo National River park administration when conducting the assessment, according to the suit. The Farm Service Agency, along with the Small Business Administration, then issued about $3.4 million in federal loan guarantees for the purchase of property and equipment.

“It’s clear to me that the [environmental assessment] and the [finding of no significant impact] are defective,” Marshall said. “They’re too brief, and there’s no chain of reasoning. There’s a ‘cursoriness’ about them.”

Aside from a five- page “executive summary,” the bulk of the Farm Service Agency’s 2012 environmental assessment consisted of about 600 pages of pre-existing documents including C&H Hog Farms’ nutrient management plan and copies of other existing permits.

C&H Hog Farms is a largescale concentrated animal feeding operation in Mount Judea. The farm, which is permitted to house approximately 2,000 full-grown sows and as many as 4,000 piglets at a time, is the first facility in the state to receive a general permit for the operation of a concentrated animal feeding operation and the management of liquid animal waste.

The farm and the various agencies responsible for granting its owners operational permits have drawn the ire of environmentalists who say the enormous amount of animal waste generated at the facility poses a threat to area groundwater and the nearby Buffalo National River. The river is the nation’s first national river and attracts more than 1 million visitors annually and more than $44 million in revenue in 2012, according to the National Park Service.

Hannah Chang, lead attorney for the plaintiffs, described the farm as “unprecedented” in the Buffalo National River watershed. Although there are about half a dozen other facilities that hold permits for liquid animal waste discharge, which are obtained through the Arkansas Department of Environmental Quality, each of those facilities is permitted to house 500 or fewer pigs.

Chang said that given the size of the facility, the agencies should have been more diligent in their environmental assessment of the then-proposed facility and its potential effects and should be willing to subsequently exercise their power to implement new requirements of the farm’s operation.

“All [the defendants’] arguments rely on the central idea that they have no discretion, no control and no redress,” she said. “We will show that that’s simply not true.”

Marshall gave Chang and Barclay Samford, lead defense attorney for the defendants, 21 days to submit final briefs recommending what should be included in his injunction order. It is unclear what effect the injunction may have on the farm itself, as the owners have been in full operation for about a year. Lawyers for plaintiffs and defendants declined to comment after the judge’s ruling.

It is unclear what, if any, effect the ruling will have on the operation of the farm itself. The Arkansas Department of Environmental Quality, the agency that issued the farm’s operational permits, has maintained that its owners have met every legal requirement and that repeated inspections of the farm have found no major permit violations.

Neither the Big Creek Research team, organized through the University of Arkansas’ Agriculture Division and funded through the state Legislature, nor a separate, volunteer-funded research team led by retired university hydrologist Van Brahana has detected an overall rise in nutrients or bacteria commonly associated with animal waste in the Buffalo National River since the farm went into operation.

Arkansas Farm Bureau spokesman Steve Eddington said Thursday’s ruling will likely have less of an effect on existing farms, including C&H Hog Farms, than it will on future farming in Arkansas.

“My takeaway i s, we didn’t do anything to change what’s happened with C&H Hog Farms,” Eddington said. “We probably just made it a whole lot harder for the next guy who’s trying to get a farm loan, regardless of where they are. If they’re in the Delta, in the Piney Woods or if they’re in the Buffalo National River watershed. That’s suddenly become much more difficult, at least until this is appealed.”

Earlier in the week, general opposition to large-scale swine concentrated animal feeding operations in the Buffalo National River watershed moved forward elsewhere, as well. Lawyers representing the Ozark Society and the Arkansas Public Policy Panel, a liberal lobbying organization, filed responses to public comments on their proposed changes to animal waste regulations in Arkansas with the Pollution Control and Ecology Commission, the state’s environmental rule-making body.

The proposed changes would include a permanent moratorium on medium- and large-scale swine concentrated animal feeding operations within the Buffalo National River watershed. The watershed covers about three-quarters of Newton and Searcy counties and about one-quarter of Marion County.

In April, Ross Noland, a lawyer representing the Ozark Society and the Arkansas Public Policy Panel, filed a petition for third-party rule-making with the commission. Charles Moulton, the commission’s administrative law judge, drafted and submitted a 180-day moratorium mirroring the provisions of the proposed permanent change. The proposed moratorium would not affect poultry, cattle or other types of animal farming and could not be retroactively applied to C&H Hog Farms.

The commission held a public hearing on the proposed amendments in June and accepted public comments until July 1. Lawyers were given 90 days to respond to public comments received by the commission, after which Noland filed the responses with the Arkansas Bureau of Legislative Research for review. Noland said Wednesday that he had originally planned to wait until the proposed rule changes, comment responses and other related documents made it through the review process before filing the responses with the commission, but changed his mind after several weeks of legislative inaction and press inquiries.

The next meeting of the Pollution Control and Ecology Commission is scheduled for Oct. 24. An agenda for the meeting has not yet been published.