Letters: Proposed SB 84 may possibly be illegal

Dear Editor,

I am writing in response to an article on February 12, “Quorum Court updated on moratorium bill”, regarding Senate Bill 84 currently being considered by the state legislature. This bill proposes to ban watershed-specific moratoriums against unspecified “permits” across the entire state. As most readers know, there is currently a Buffalo River watershed moratorium against permits for swine CAFOs with over 750 animals. SB84 is an end run around that moratorium and if enacted will cancel it and another moratorium in the Maumelle watershed enacted many years ago to protect the municipal water supply. Let me enumerate why this bill is terrible for Arkansas, and especially for the Buffalo National River:
Swine CAFOs in karst locations, which includes nearly all of the BNR watershed, are a clear and proven threat to the BNR. C&H Hog Farms were denied a new permit in 2018 because they could not comply with state regulations regarding sensitive sites such as karst. Guidance documents clearly state that if karst is present in the proposed CAFO site, the applicant must “seek another site”. C&H received a $6.2 million buyout because the state recognized it had erred when approving the initial permit in 2012 by failing to require full compliance with regulations. If approved, SB84 would open the door for a repeat of the C&H buyout. Do state taxpayers really want our funds wasted in this way?
SB84 is redundant, unnecessary, vague and possibly illegal. The law already requires that all new rules, including a moratorium, must be reviewed by the legislature before adoption. This bill refers to generic permits, not just agricultural permits. Does the ban apply to residential and business construction permits? Mining and fraking permits? Crypto mining permits? The ban applies only to moratoriums initiated by state agencies. Are third party rulemakings, such as the current BNR moratorium, exempt from SB84? The bill’s requirement that any rules which propose a moratorium must first get legislative approval appears to violate the Administrative Procedure Act’s requirement for public notice and comment on proposed rules. The APA is being circumvented if a proposed moratorium is denied before the public can weigh in.
Some say a moratorium violates property rights and the right-to-farm. As a farmer and good neighbor myself, I know that my rights end at my fencerow. The Right-To-Farm does not confer unrestricted rights. Some sites are simply inappropriate for industrial-scale CAFOs, including in karst areas in the BNR watershed. State and Federal regulations, such as a moratorium, are meant as guard rails against environmentally damaging activities to or by private landowners.

Some say a moratorium will set a precedent and would have broad impacts on the state-wide farming community, the so-called “slippery slope” argument. A precedent has already been set. A temporary moratorium in the BNR watershed has been in effect since 2014. The Lake Maumelle watershed has similar protections which precede the C&H permit. Neither has led to restrictions on other farming activities, in the Buffalo or any other watersheds. The current moratorium is extremely narrow in scope affecting only 2% of the state’s landmass and applying only to swine CAFOs in the Buffalo River watershed with over 750 animals. Small farmers, chicken farmers, cattle ranchers, row crop farmers, etc are not impacted nor are any other watersheds in the state.
SB84 is currently listed by the legislature as “deferred”. It has been suggested that the Governor is weighing in, probably because this bill would threaten her efforts to make Arkansas the country’s premier outdoor recreation capitol. It’s possible the bill will be amended to exempt the BNR from the ban. It’s also possible the bill will be dropped altogether. We have heard that members of the Senate Agriculture Committee have received over 600 requests from citizens to oppose the bill. Our organization has attended five meeting of the Senate Ag Committee to testify against SB84, only to have the bill removed from the agenda at the last minute. We will continue to monitor this bill and testify against it if necessary. If any location in Arkansas is worthy of environmental protections it’s the iconic Buffalo National River.

Gordon Watkins, Parthenon
President, Buffalo River Watershed Alliance