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IN ARKANSAS WHICH COMES FIRST, THE CHICKEN OR THE ENVIRONMENT?

John T. Hollerman


6 Tul. Envtl. L.J. 21 (1992)
Publish Date:
Winter, 1992
Place of Publication: Tulane Environmental Law Journal, Tulane Law School
Printable Version

IN ARKANSAS WHICH COMES FIRST, THE CHICKEN OR THE ENVIRONMENT?

I. Introduction

The successful campaign of the former governor of Arkansas, President Bill  Clinton, focused the nation's attention on the small southern state. With a  total population no greater than many cities, Arkansas has enjoyed and  maintained a rural atmosphere. However, as rural America was transformed in  immutable ways by the industrial revolution, Arkansas has recently been changed  by an innocuous little bird. That bird is the chicken.   

The issue has developed into a classic environmental morality play. On one  hand, there exists a thriving industry providing jobs, big salaries, and tax  revenues. On the other, there stands a near pristine environment being slowly  but surely destroyed. For example, on a daily basis the Arkansas poultry  industry dumps 300 pounds of arsenic, and urine/feces equal to the daily waste  generated by a population of eight million people, all absent treatment or  regulation. Moreover, the pollutants mentioned are just two ingredients of a  deadly mix that the Arkansas environment absorbs daily from poultry waste.

This paper examines how this environmental catastrophe has developed, and what  can be done to correct the problem. The state has done little to address the  problem, but federal remedies are available. Let us hope that they are brought  into play soon. The damage caused to Arkansas' environment is likely great but  hopefully reversible.

 

II. The Arkansas Poultry Industry

A. An Industry Overview

Arkansas is ranked among the top states in the nation in agricultural  production. In 1990, the state produced 38.7 percent of the rice grown in the  United States, and Arkansas is also a major producer of soybeans, cotton,  wheat, hay, and oats. 1The total value of these and other crops produced in 1990 totaled $ 1.6  billion. 2Yet in 1990 alone, Arkansas generated poultry production valued at $ 1.84  billion. 3The entire crop value of Arkansas, one of the top agricultural states in  America, was therefore surpassed by poultry production.

Arkansas is the top broiler-producing state with 951.2 million birds. 4Arkansas ranks sixth nationally in egg production and fourth in turkey  production, generating 3.6 billion eggs and 22 million turkeys in 1990. 5The cash receipts from these sales included $ 1.38 billion for broilers, $  260.6 million for eggs, and $ 185.8 million for turkeys. 6And 1990 was a bad year; poultry receipts were down in 1990 by three percent from the $ 1.89 billion generated  in 1989. 7

This poultry production machine is making an incredible economic impact upon  this poor southern state. 8Over $ 1.3 billion was paid in direct salaries to employees of Arkansas  poultry companies, and $ 1.4 billion was paid by these companies to the  estimated 25,000 suppliers of the state's poultry industry. 9Approximately 84,000 Arkansans work in the poultry industry - about one out of  twelve members of the entire state's work force. 10 Taking into account the employees of poultry industry suppliers, one out of  ten Arkansas jobs depends on the business. 11

Arkansas ranks near the bottom of the nation in per capita income, 12 yet the average employee of an Arkansas poultry company earns in excess of $  17,500 per year, including benefits. 13 More than 4,000 new jobs were created by the industry in the past year. 14

The capital investment needed to provide the infrastructure for this industry  is estimated at $ 2-3 billion. 15 To support this enterprise, the poultry industry  "is Arkansas' largest single buyer of virtually every commodity in the state,  from paper clips to eighteen wheelers; from south Arkansas pulpwood and timber,  to east Arkansas feed grains; from natural gas and electricity to water and  telephone service; from typewriters and computers to fenceposts and petroleum  products." 16 This commercial trade has generated a large amount of local, state, and federal tax  liability, thus making the poultry industry the state's largest taxpayer. 17

Moreover, a shift in dietary habits of Americans from red meat to poultry has  been a catalyst for this industry. 18 As health-conscious Americans become even more so, and Arkansas poultry  producers expand into fertile overseas markets, there seems to be no end to the  dramatic growth of this industry. 19 From 1971 to 1990, total farm value of Arkansas poultry and egg production  increased 493 percent. 20 Further, poultry has historically been much cheaper than red meat, thus  providing an economic incentive for consumption, in addition to the health  benefits. 21

Another factor stimulating dramatic growth in the poultry industry has been  depressed prices in other segments of agriculture. The row crop agricultural sector has been adversely effected by low  prices caused by overproduction. 22 This has generated interest in poultry production by row crop farmers in  Arkansas and other areas of the nation. 23 These farmers have been shifting from row crop farming to poultry production. 24

B. Poultry Farming Methods

Poultry is produced via a set of business relationships similar to the  franchisor-franchisee relationship. The  "integrator" is the poultry company which provides chicks, feed, medication, and management  supervision. 25 An individual farmer provides the land, housing, equipment, fuel, electricity,  litter base, and labor. 26 Under this contractual relationship the integrator retains title to the  poultry, then collects and transports the mature birds to the processing plant. 27 The farmer is then paid for his labor, management, and investment. Some  farmers also operate egg production and hatching facilities. 28

The number of birds concentrated on small poultry farms is amazing. An average  broiler house will contain 15,000-20,000 chickens. 29 The industry averages 2.3 houses per farmer but many have four or more. 30 These houses are generally within a few feet of each other, and there will be  farm after farm after farm with the same operational set-up. Broilers are  cycled through the houses every six weeks, as the young chicks mature into  fully grown birds. 31 Two weeks pass before the next load of chicks is transported to the farmer. 32 Before the next load of chicks can be delivered to the house by the  integrator, the poultry farmer must remove the accumulated litter from the  floor of the house by simply scraping it up. 33 Usually the litter is then land applied to the poultry farmer's pasture land  or sold to another farmer who spreads it on his own land. 34

C. The Geographic Concentration of the Industry

Poultry and egg production in the United States is primarily centered in the  South. Arkansas, Georgia, North Carolina, Alabama, and California were the top  five states in 1990 cash receipts. 35 Arkansas produced 12.3 percent of total U.S. cash receipts from poultry and  eggs. 36 Within Arkansas, poultry production is concentrated in Benton and Washington  counties. 37 These counties house 22 percent of the state's total production but represent  only 3.44 percent of the state's total land area. 38

From a geologic standpoint, the center of the poultry industry could not be  placed in a worse area. These two counties are located in the Ozark Highlands  region of the state. This area is

noted for its mountainous terrain with steep gradients and fast-flowing,  spring-fed streams. A large percentage of the streams from within this region  are designated as extraordinary resource waters. The fractured limestone  geology of the region allows a direct linkage from surface waters to  groundwaters. Numerous incidents involving spills or discharges of contaminants  have been traced directly through groundwater channels only to resurface in one  of the many springs throughout the region. 39

These fast-flowing streams provide some of the finest smallmouth bass fishing  and canoeing opportunities in the nation. 40 The region is also known for its breathtaking beauty and its wild turkey, deer  and black bear populations. Once-native elk have been reintroduced just west of  the region, and plans are underway to restore ruffed grouse populations. 41 The Arkansas Department of Pollution Control and Ecology (PC&E), however, noted that within this region are some of the highest animal production rates in the  United States, specifically chickens, swine, and cattle. Recent findings  indicate that approximately thirty million pounds of animal manure are excreted  daily in the Washington/ Benton County area alone. In terms of a human  population equivalency based on typical domestic wastewater values, these  values would equal a population of over eight million people. The waste  generated from this animal production is generally land applied and, therefore,  has the potential for contaminating both surface and groundwaters. The nitrate  levels measured from this region are very high and few, if any, streams  consistently meet the primary contact recreation standard. 42

An area unsurpassed in natural beauty is now swimming in a sea of animal  manure.

 

III. Environmental Impacts of Poultry Production

A. General Impacts

The magnitude of the manure problem in Arkansas is almost beyond belief. A  table best illustrates the scope of the problem

[SEE TABLE IN ORIGINAL]

The massive amounts of nitrogen, phosphorous, and potassium generated by this  manure can have a serious detrimental impact on the environment. When the  wastes are not properly managed, these chemicals are washed away by way of  surface runoff. 44 The concentrations of these chemicals can be quite high, resulting in  environmental impacts including enrichment of lakes and ponds generating excessive growth of algae causing  taste, odor, and aesthetic problems and decreasing the value for water supply  and recreation. Fish can be killed in ponds with serious algae problems.  Opportunities for fishing can be reduced. Decaying algae and other plans sic  deplete dissolved oxygen supplies, thus suffocating fish. High levels of  nitrate in groundwater used for water supply can cause methemoglobinemia, a  blood disorder in infants, also known as  "blue baby disease." 45

To exacerbate this problem, it is difficult to estimate the concentrations of  nitrogen, phosphorus, and potassium that reach ground and surface waters. 46 The concentration of pollutants resulting from improper manure management  practices will vary based on the kind and amount of manure, the bedding and  feeding practices, the disposal methods, and the location of disposal activity  with respect to soils, surface water and rainfall. 47 For example, from 10 to 20 percent of the nitrogen and phosphorus in manure  which has been spread on frozen or snow-covered fields can be washed away in  runoff from rains and snowmelt. 48 

In addition to the chemical dangers, fecal coliform bacteria are present in  the excrements of all warm-blooded animals. 49 These bacteria present health risks to humans swimming in or consuming the  contaminated waters. 50 Further, other harmful organisms often accompany fecals, since  "bacteria, viruses, protozoans, and fungi are among the potential pathogens." 51

Poultry production also generates large amounts of solids, volatile solids,  biochemical oxygen demands (BODs), and chemical oxygen demands (CODs). 52 Per 1,000 pounds of live weight, poultry produce the following on a daily  basis: 13.9 pounds of total solids; 10.8 pounds of volatile solids; 3.4 pounds  of BODs; and 12.5 pounds of CODs. 53 Moreover, poultry manure generates tremendous amounts of heavy metals as the  following table illustrates:   

[SEE TABLE IN ORIGINAL]

Converting the metals from mg/kg into pounds per day, based on the 5100 tons of  poultry manure produced daily in Arkansas, clearly illustrates the massive  amounts of deadly metals that are being disseminated daily into the  environment. It would appear logical that these enormous discharges would fall  under the hazardous waste provisions of the Resource Conservation and Recovery  Act (RCRA). However, agriculture wastes used fertilizers are excluded from Subtitle C of RCRA which identifies hazardous  wastes. 55 Yet a toxicologist for the EPA has stated that  "arsenic is a known carcinogenic agent that when inhaled can cause cancer in  humans, particularly lung cancer." 56

Dead birds are another enormous source of pollution generated by poultry  production. 57 Mortality for broiler production is three to five percent over the production  cycle. 58 This equals about 0.1 percent per day. 59 However, in times of extreme weather conditions or health problems, mortality  may be as high as 0.25 percent per day. 60 With the 951.2 million broilers produced in Arkansas in 1990, mortality would  equal about 28.5 to 47.5 million birds per year.

With all of this pollution, it does not take much of a mental leap to realize  the deleterious effects on the environment. Very few streams in northwest  Arkansas consistently meet the primary contact recreation standard. 61 Numerous stream segments in the region have been listed as impaired by  confined animal operations: 62 

[SEE TABLE IN ORIGINAL]

This is only a selected listing of streams impaired by confined animal  operations. Furthermore, sixty-three percent of Arkansas streams have not been  tested for pollutants and are listed as  "unknown" in the water quality assessment. 63 No assessment has been done of lakes, groundwater or wetlands. 64 Yet groundwater contamination has occurred and is getting worse. Water wells  in Washington County contain ten times the nitrate concentrations found in  areas absent poultry production. 65 Many of these wells contain nitrates in concentrations as high as ten parts  per million. 66

B. Impacts on Fish

Fish populations have been dramatically impacted by poultry production  according to state wildlife officials. 67 In particu   lar, the smallmouth bass of northern Arkansas have suffered a great deal. The  smallmouth live only in clear waters of the Ozark and Ouachita mountains. 68 These cool, clear and previously clean mountain streams and lakes are the only  areas of the state where these fish thrive. 69 Moreover,  "Arkansas' smallmouth streams are legendary throughout the country. Its  blue-ribbon haunts in the Ozarks include Crooked Creek, Kings River, and the  Buffalo River." 70 Each of these streams have segments listed as impaired by confined animal  operations. 71

Arkansas Game and Fish Commission (AG&F) Fisheries Research Biologist Steve Filipek has been studying smallmouth bass  populations and streams since 1987. 72 No stream surveying had been conducted since 1950, so virtually nothing was  known about current smallmouth populations. 73 It is important to study the population because, as Filipek states:

Smallmouth bass, better than any other native sportfish, are excellent  indicators of water quality and the integrity of a stream system. Many of the  streams we looked at first were those that had the possibility of being dammed  or were ones with pollution problems.... That's when we began to notice that we  were having problems with things like gravel operations, channel modification,  sewage and other forms of pollution and habitat degradation. 74

There is also a problem with the direct dumping of poultry waste into nearby  streams. 75 Direct dumping of wastes, as well as the common practice of spreading the  manure in fields, leads to a heavy load of chemicals leaching into the soil and  running off into the water. 76 The effects on smallmouth are dramatic. The fish are found with tumors or  heavy parasitic infections. 77 Furthermore, nitrates from the litter reduce dissolved oxygen, causing fish  kills. 78 Moreover, the increased nutrients cause blooms of blue-green algae. 79 These heavy loads of nitrogen are too much for the smallmouth to withstand.

The same is true for most of the food chain. 80 Patterson explained that a heavy load of nitrogen  "makes the stream unstable ... because you don't have a broad base of insects  doing well. It's not just a minor, once-in-a-while thing. It's continuous.  Every time it rains, more and more gets into the stream." 81 To make matters worse, the soil and every other part of the environment has  been permeated by chicken manure. Patterson continued by emphasizing that  "the whole northwest part of the state is so overloaded and has been for so  long. If they stopped land applying poultry waste we'd probably still see the  effects for years to come." 82

It is a tragedy that one industry, virtually unregulated, has been allowed to  destroy some of the nation's most pristine waters. The destruction of water  quality leads to the slow eradication of the native fish species, especially sensitive species like  smallmouth bass. As some Arkansas biologists have written:  "Smallmouth are arguably our most esoteric native sportfish. We associate them  with our purest, least disturbed mountain streams and greatly value their  fighting ability. Conserving and enhancing our smallmouth fisheries should be a  high priority." 83

C. Impacts on Wildlife

Many general effects of poultry production are suffered by wildlife according  to Dr. Dave Urbston of the AG&F. 84 These include habitat destruction from the building of poultry houses,  increased traffic in rural areas to service the houses, terrible smells that  generally degrade the environment, and the unsightly houses in areas of great  natural beauty. 85 However, poultry production presents a more subtle and ominous threat to  wildlife. This threat is disease.

Disease makes a two pronged attack on wildlife. First, manure spread in fields  can carry disease and expose other types of wildlife. 86 Second, in the poultry growing process, large numbers of birds die for various  reasons. The bodies are frequently placed in open pits or dumped on National  Forest land. 87 Coyotes then eat some of the dead chickens or spread the bodies throughout the  surrounding area. 88 This directly exposes native wildlife species to serious diseases that would  not normally be present in the environment.

According to Dr. Urbston, wild turkeys and bobwhite quail are the birds most  in danger of contracting disease from chickens. 89 Furthermore, AG&F is in the process of restocking ruffed grouse, which were once indigenous to  Northwest Arkansas. 90 Poultry diseases could jeopardize this program. 91

Chickens have been genetically engineered or inoculated to resist disease.  However, wild birds may not have the same resistance. Despite the poultry's  immunity, the fact that they simply carry the disease is dangerous to wild  birds. Wild birds     may have no such immunities and easily contract certain diseases when they are  exposed. One of the worst diseases of this type is histomoniasis, which is  commonly known as blackhead disease. 92

Chickens are readily infected and are asymptomatic carriers of blackhead  disease. 93 They infect other birds but rarely become sick or die themselves. 94 Also, earthworms transmit the disease by storing the cecal worm larvae, which  carry the disease, in their bodies. 95 This occurs when earthworms feed on soil containing infected chicken  droppings. 96 Turkeys, grouse, and quail then eat the worms. Turkeys and ruffed grouse  develop severe symptoms and have high mortality rates. 97 Infected turkeys exceed a 75 percent mortality rate. 98 Bobwhite quail have moderate mortality rates. 99 The Field Manual of Wildlife Disease in the Southeastern United States (Field  Manual) asserts that:  "because of the likelihood of losses to histomoniasis, introduction of carrier  species into wild turkey habitat should be avoided." 100

Infectious sinusitis is a respiratory and sinus disease carried by domestic  poultry. 101 To date, the disease has been rare in wild turkeys. 102 However, increased contact with domestic poultry by wild turkeys could  increase the frequency of the disease. 103 Contact with domestic poultry has been the genesis of   the disease each time it has been found in wild turkeys. 104 One wild turkey population crash has been attributed to the disease, and the  turkey population has failed to recover. 105 The Field Manual warns that serologic monitoring shows southeastern wild  turkeys are not involved in the spread or maintenance of the disease and  "infectious sinusitis could have a substantial impact should it become  established in native wild turkeys." 106

Avian pox is another serious disease of wild turkeys which can be transmitted  by domestic fowl and other birds. 107 The disease manifests itself by skin lesions on unfeathered areas of the head,  legs, mouth, and upper respiratory tract. 108 These symptoms then cause vision problems, respiratory distress, emaciation,  or weakness. 109 This disease is a major problem for wild turkeys in the Southeast, and  localized areas have reported high mortality rates. 110

A variety of other diseases can be transmitted to wild turkeys, quail and  grouse. Avian cholera attacks domestic poultry and wild waterfowl. 111 But  "wild turkeys undoubtedly are susceptible to infection and would be expected to  develop disease if infected with virulent strains." 112 Coligranuloma diseases produce granulomas in visceral organs of wild turkeys. 113 Severe infections of tracheal worms in turkey poults can produce mortality,  and roundworms and tapeworms are a nonfatal problem for wild turkeys as well. 114 External parasites are easily passed from domestic poultry to wild birds. 115

It is clear that wild bird populations are at risk from poul   try disease. Manure spreading and carcass disposal must be regulated before a  population crash of wild turkey or quail occurs. With some of these poultry  diseases producing seventy-five percent mortality rates among wild birds, the  potential for severe species damage is present.

 

IV. Regulatory Structure of the Poultry Industry

A. State  & Federal Regulation

1. An Argument for Point Source Regulation

It would seem that an industry which produces, in just two counties, manure  equivalent to eight million people daily and generates enormous quantities of  chemicals, would be subject to stringent regulation. However, poultry industry  wastes are subject to little regulation, and compliance is primarily voluntary.  The vast majority of poultry waste is in the form of dry litter and dead birds.  Dry litter is not regulated under any permitting program, and the regulations  on dead bird disposal are ineffectual, because they do not require permits. 116 The regulations on poultry carcass disposal have recently been amended to provide for on-farm  freezing of dead birds. 117 Tyson Foods, Inc. has recently announced the expansion of its River Valley  By-Products facility to accommodate the recycling of dead birds, which are frozen for  recycling. 118 The facility also recycles into animal feed the inedible parts of the  approximately 600 million chickens annually processed at the twenty-eight Tyson  plants in Arkansas, Oklahoma, and Missouri. 119 These plants alone produce twenty-five million pounds of poultry by-products  each week, requiring 500,000 cubic feet of landfill space per week to  accommodate this waste. 120 These massive amounts of by-products were simply dumped on land prior to the  construction of the recycling facility. 121

The Arkansas Department of Pollution Control and Ecology has a permitting  program for animal wastes handled in liquid form. 122 However, none of the manure produced by broilers is managed in liquid form,  and only a small percentage of manure from other types of poultry is handled by  this method. 123

With virtually no state regulation in place, it would seem that the federal  government would step in and stop the massive and widespread pollution. After  all, the objective of the Federal Water Pollution Control Act 124 (Clean Water Act) is  "to restore and maintain the chemical, physical, and biological integrity of the  Nation's waters." 125 The Clean Water Act sets out two national goals to achieve this objective. The  first goal is the elimination of the discharge of pollutants into navigable  waters by 1985. 126 The second is that water quality be attained at a level to protect fish,  shellfish, wildlife, and recreation. 127

These lofty goals were to be achieved by waging a two-front war. The primary  battleground has been point source pollution, which is prohibited absent a  permit for the discharge. 128 The secondary fight has centered around non-point pollution, will be discussed later in this paper. 129

The Act defines a point source as  "any discernable, confined and discrete conveyance, including but not limited to  any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container,  rolling stock, concentrated animal feeding operation, or vessel or other  floating craft, from which pollutants are or may be discharged." 130 From the plain language of the definition, it would certainly seem that the  large scale poultry production that occurs in northwest Arkansas would qualify  as a  "concentrated animal feeding operation." However, an analytic matrix set forth in the regulations determines whether an  operation is concentrated animal feeding under the point source definition. 131 In  order to trigger point source permitting, either one of the two following  criteria must first be met: First, more than 55,000 turkeys, more than 100,000  laying hens or broilers (if the facility has continuous overflow watering) or  more than 30,000 laying hens or broilers (if the facility has a liquid manure  system) must be present; or second, more than 16,500 turkeys, more than 30,000  laying hens or broilers (if the facility has continuous overflow watering) or  more than 9,000 laying hens or broilers (if the facility has a liquid manure  handling system) must be confined on the property in combination with other  specified types and numbers of animals. 132 When it has been determined that the requisite number or combination of  livestock are present, then either one of the following two conditions must  also be met:

(1) pollutants are discharged into navigable waters through a manmade ditch,  flushing system or other similar man-made device; or

(2) pollutants are discharged directly into U.S. waters which originate outside  of and pass over, across or through the facility or otherwise come into direct  contact with the animals confined in the operation. 133

However, these two requirements will not be met if the discharges only occur in  the event of a 25 year, 24-hour storm event. 134

Although many Arkansas poultry operations would meet the numerical criteria of  the federal regulations, few either discharge waste into navigable waters by a  manmade ditch or flushing system, meet the  "pass over" requirement, or have     continuous overflow watering. 135 However, section 122.23 of the regulations allows the Director to designate an  operation as a concentrated animal feeding operation on a case-by-case basis. 136 This regulation provides that:

(1) The Director may designate any animal feeding operation as a concentrated  animal feeding operation upon determining that it is a significant contributor  of pollution to the waters of the United States. In making this designation the  Director shall consider the following factors:

(i) The size of the animal feeding operation and the amount of wastes reaching  waters of the United States;

(ii) The location of the animal feeding operation relative to waters of the  United States;

(iii) The means of conveyance of animal wastes and process waste waters into  waters of the United States;

(iv) The slope, vegetation, rainfall, and other factors affecting the  likelihood or frequency of discharge of animal wastes and process waste waters  into waters of the United States; and

(v) Other relevant factors.

(2) No animal feeding operation with less than the numbers of animals set forth  in appendix B of this part shall be designated as a concentrated animal feeding  operation unless:

(i) Pollutants are discharged into waters of the United States through a  manmade ditch, flushing system, or other similar manmade device; or

(ii) Pollutants are discharged directly into waters of the United States which  originate outside of the facility and pass over, across, or through the  facility or otherwise come into direct contact with the animals confined in the  operation.

(3) A permit application shall not be required from a concentrated animal  feeding operation designated under this paragraph until the Director has  conducted an on-site inspection of the operation and determined that the  operation should and could be regulated under the permit program. 137

An analysis of these factors indicates that these poultry operations should be  designated as point sources by the Director. 138  First, considering the size of the Arkansas poultry operation (about one  billion birds), the amount of manure produced daily in Benton and Washington  Counties alone (over 30 million pounds per day), and the human population  equivalency of the manure produced (over 8 million people), it is clear that  huge amounts of wastes are reaching the waters of the United States. Moreover,  many of the local streams are not meeting the primary contact standard and have  been designated as water quality impaired. 139 PC&E specifically lists the cause of the water quality violations as confined  animal operations. 140

An analysis of the second factor - the location of the animal feeding relative  to waters of the United States - also mandates designation of these operations  as point sources. For example, the Buffalo River is one of the streams  threatened by the poultry industry. A segment of this river has already been  designated as not meeting water quality standards because of confined animal  operations. 141 This is one of the few remaining free flowing rivers in Arkansas, and the  river is nationally known for its scenic beauty, fishing and canoeing  opportunities. 142 Its first sixteen miles of headwaters lie in the Ozark National Forest and the  rest of the river lies within the boundaries of the Buffalo National River. 143 The Buffalo River was established as a national scenic river pursuant to the  1972 National Wilderness Act. 144 The damage occurring to national waters could not be more clear.

The third analytic factor also mandates the designation of these wastes as  point source pollution. It focuses on the means of conveyance of animal wastes  into waters of the United States. 145 These wastes are deliberately spread over fields in disregard of the capacity  of plants and soil to absorb the chemicals:    

Major constituents of animal manure include nitrogen, phosphorus, and potassium  compounds. These are present in relatively high concentrations and where animal  manure is not properly managed (i.e., properly stockpiled, incorporated into  the soil, or spread) the potential for high nutrient concentration in surface  runoff is great. Even with proper land spreading based on soil types and soil  incorporation methods, concentrations of manure applied per acre must be  carefully controlled to prevent excessive leaching of nutrients into  groundwater resources. 146

Until recently, there has been no careful management of this manure. Also  "direct dumping of poultry waste into streams" 147 has occurred. Taken together, these two factors mandate that these operations  be permitted as point sources.

The fourth factor the Director should consider in determining whether a  feeding operation qualifies as a point source is the slope, vegetation,  rainfall and other factors affecting the likelihood or frequency of the  discharge of animal wastes. 148 Under this factor, it is absolutely clear that most Arkansas poultry  operations should be designated as point sources of pollution. The center of  the Arkansas poultry industry is in the Ozark Highlands Region, which is known  for its mountainous terrain and steep gradients. 149 To make matters worse, the area has fractured limestone geology, which allows  a direct linkage from surface waters to groundwaters. 150 Discharges move almost directly into groundwater and resurface in local  springs. 151 The geology of the region necessitates strict point source controls. Until  these controls are implemented, the environment of this region will be severely  jeopardized.

One commentator has pointed out that the common ranching practice of providing  cattle with  "watering holes" along streams is probably point source pollution. 152 These locations     [*46]   are known as  "sacrifice areas" because of the cattle's continuous trampling, urination and defecation. 153 This creates filthy surroundings, which are comparable to the areas in and  around poultry house operations. The poultry houses may not be located directly  on the stream, as are watering holes, but the houses may be built quite close  to the stream. Also, there may be many poultry houses on one small tract of  land. Therefore, many  "sacrifice areas" may be present with poultry operations. While in ranching there may be only  one  "watering hole" for several miles of stream, the poultry industry will generate thousands of  "sacrifice areas" all along the stream and its basin.

2. An Argument for Nonpoint Source Regulation

While point source pollution has been reduced in the United States (or at  least controlled), nonpoint source pollution 154 has grown out of control. 155 A 1984 report ranked nonpoint source pollution as a major cause of all water  pollution in a majority of states. 156 Agricultural states like Arkansas have slowly come to terms with the nonpoint  source problem and are attempting to take corrective action. However, this  action was delayed until the 1987 amendments to the Clean Water Act. 157 Prior to 1987, section 208 of the Clean Water Act controlled nonpoint source  pollution by asking states to identify nonpoint sources and attempt to control  these sources. 158 This provision created a voluntary program with inadequate federal funding.    This equation equaled failure. The 1987 amendments were spawned by this  failure and attempted to directly address the nonpoint nightmare. 159

Section 319 of the Clean Water Act requires that the states develop plans to  control nonpoint sources of pollution. 160 First, the states must identify the problem through an assessment report. The  states are required to submit a report which:

(A) identifies those navigable waters within the State which, without  additional action to control nonpoint sources of pollution, cannot reasonably  be expected to attain or maintain applicable water quality standards or the  goals and requirements of the Act.

(B) identifies those categories and subcategories of nonpoint sources, or where  appropriate, particular nonpoint sources which add significant pollution to  each portion of the navigable waters identified under subparagraph(A) in  amounts which contribute to such portion not meeting such water quality  standards or such goals and requirements.

(C) describes ... the process, including intergovernmental coordination and  public participation, for (1) identifying best management practices and  measures to control each category and subcategory of nonpoint sources and,  where appropriate, particular nonpoint sources identified under subparagraph  (B) and (2) to reduce, to the maximum extent practicable, the level of  pollution resulting from such category, subcategory or source.

(D) describes State and local programs for controlling pollution added from  nonpoint sources to, and improving the quality of, each such portion of the  navigable waters, including but not limited to those programs which are  receiving federal assistance under subsection (h) and (i) of this section. 161

After the assessment report is developed, the state must then design a  proposed management program. 162 The state must implement this program within four fiscal years to control  nonpoint sources of pollution. 163 Section 319 mandates the program contain at least three major elements: (1)  best management practices to reduce pollutant loadings, taking into account the  impact of the practice on groundwater quality; (2) programs to achieve these best management practices; and (3) a schedule  containing annual milestones for implementation of the programs and the best  management practices. 164

The Arkansas Management Program lists several sources as a basis for the  assessment report: 165 "these include the section 208 water quality management plans, water quality  assessment documents (section 305(b) reports), fishery surveys, clean lakes  programs (314 reports) ... , Rural Clean Water Program," 166 and reports from local health departments, the Soil Conservation Service, and  the U.S. Forest Service. 167 The section 305(b) report was developed in Arkansas by focusing on the river  reach study format. 168 Any size of water body could be used for study, ranging from an entire river  basin down to a river reach. 169 The river reach is the smallest segment for reporting. 170 The next step was to determine if the reach was fully meeting all designated  uses by comparing the ambient water quality of the reach to the state water  quality standards. 171 If the ambient water quality was below state water quality standards, then the  area would be recorded as not meeting the designated use. 172 Not all stream reaches have monitoring stations for the length of the stream,  so professional judgement was used to extend the designation either upstream or  downstream from the monitoring station. 173 Even with available monitoring stations and the use of best professional  judgement designations, sixty-three percent of the state's stream reaches were  still recorded as unknown. 174 The management program candidly states that  "the main shortcoming of the assessment is that not enough water quality data  exists to provide a scientific base to make the decisions required. Without  more base data most of the state's waters cannot be evaluated and will remain  unknown." 175

There are 11,507.7 stream miles within Arkansas' river  reach system. 176 Only thirty-six percent or 4,107 miles have been assessed for use attainment. 177 Of this thirty-six percent, 41.7 percent are meeting all designated uses while  58.3 percent are water quality impaired. 178 Water quality impairments to lakes, groundwater and wetlands were not  considered due to the lack of scientific data. 179

Several factors make it quite clear that Arkansas has severe water quality  problems. First, only thirty-six percent of the state's waters have even been  assessed for use attainment, and well over half are water quality impaired. 180 Second, lakes, wetlands, and groundwater have not been considered. 181 Third, manure equal to a human population equivalency of over eight million  people is being discharged in just a two county area, 182 and this equivalency number does not take into consideration all of the dead  chickens that are disposed of in the region. When all of these factors are  considered, it is clear that Arkansas' motto -  "The Natural State" - will soon be a misnomer.

B. Water Quality Act and the Poultry Industry

As has been discussed already in this paper, section 319 of the Clean Water  Act requires each state to assess nonpoint source pollution and prepare a  management plan to address the problem. 183 PC&E prepared this assessment and received EPA approval in August of 1989. 184 PC&E then submitted the state management plan for nonpoint source pollution and  received EPA approval for the animal holding and management areas of the plan. 185 The Arkansas Soil and Water Conservation Commission (ASWCC) was designated by  former Governor Bill Clinton as  "the lead agency for NPS management work." 186 Specific study areas, a special task force, and other programs of this nature  have been developed in conjunction with the management program. 187 In addressing the task force on animal wastes, former Governor Clinton  acknowledged the serious nature of animal waste impacts on the environment. 188 However, the Governor seemed primarily concerned with industry growth, rather  than the health of humans, wildlife or the environment. For example, the  Governor asked the task force to answer these three questions:

1. Is there a technical fix to the problems that will give the state the water  quality that we want?

2. Will the fix allow the continued growth of the industry? and,

3. Can the fix be carried out at a cost that will allow growers to stay in  business? 189

The Governor also mentioned in his comments that Arkansas has performed above  the national average in the production of new jobs and this was due in large  part to the poultry industry. 190 Although he said he was looking for technical and regulatory solutions to the  animal waste problem, only solutions which allowed for continued growth of the  industry were acceptable. 191

The ASWCC, while faced with an enormous problem, appears to be responding  aggressively to the poultry waste predicament. However, they lack a regulatory  structure to back up  any request or requirement that they may set forth. 192 For example, project engineer Wallace Dellinger sent surveys on the  implementation of best management practices on their farms to 8,000 poultry  farmers. 193 He received 500 responses. Yet, the responses which he received do indicate  some improvement in waste management: 194  

[SEE TABLE IN ORIGINAL]

 [*53] 

This table shows an increase in composting, the use of calibrated spreaders to  spread manure, limits on manure at five tons per year per acre, and other  important management guidelines. It is significant that these practices are  developing. Composting is vital to alleviate the dead bird disposal problem.  The use of calibrated spreaders will help limit the amount of manure  discharged, thereby keeping nutrients to a level the soil and vegetation can  absorb. This will limit nutrient runoff and surface and groundwater  contamination.

Another program being implemented by ASWCC is the Water Quality Technician  Program. 196 The Environmental Protection Agency (EPA) has awarded grants for technical  assistance to conservation districts in threatened watersheds. 197 These grants will be used to hire and educate water quality technicians to  write  "Manure Management Plans for Water Quality." 198 These plans will address litter disposal and  "water quality will be improved by matching the nutrient content of litter with  the nutrient requirement of the crop being grown by the poultry grower, or  finding alternate methods of removing the litter from the farm." 199 These plans will include:

(1) a map designating all fields with buffer zones being delineated;

(2) a soil survey map for the farm with accompanying soil description report;

(3) soil analysis data on each field from the Cooperative Extension Service;

(4) poultry litter worksheet to determine land area and waste storage  requirements;

(5) narrative of each recommended best management practice (conservation  practice);

(6) specifications for construction of dead bird composters; and

(7) recommended nutrient budget. 200

As of February 1992, fifty contacts had been made with poultry     producers to develop plans for their farms. 201

Progress is being made in raising environmental concerns of poultry producers.  This has been a direct result of conscientious efforts by ASWCC. However,  absent enforcement measures, compliance with ASWCC programs will be limited to  voluntary cooperation.

 

V. Regulatory Answers

A. Twenty Years of Waiting

To put teeth into the progressive best management practices that have been or  are soon to be implemented by ASWCC, the State of Arkansas must set total  maximum daily loads (TMDLs) for water quality impaired streams. 202 The process is completed as follows:

1 State sets water quality standards and determines if its bodies of water meet  them;

2 Bodies of water or segments determined not to be meeting water quality  standards (or those which will not meet standards after technology-based  controls have been implemented) are identified as  "water quality limited." For these segments, a TMDL for the pollutant is established and submitted to  EPA. The TMDL takes both point and nonpoint sources of pollution into account.

3 State develops an implementation plan determining how the TMDL will be  apportioned between pollution sources.     Point and nonpoint sources can both be considered in making the apportionment.

4 EPA reviews the designated segments and TMDLs. If, over a long period of  time, the state does not set TMDLs, or if EPA does not approve the TMDL the  state sets, EPA is to set the TMDLs.

5 State monitors adherence to the implementation plan. Point sources of  pollution are controlled through permits and compliance schedules; nonpoint  sources are controlled through use of best management practices .... 203

A TMDL is simply the largest amount of a pollutant that a stream or lake can  receive on a daily basis and not violate water quality standards. 204 Furthermore, the TMDLs shall be set at a level to provide for seasonal  variations and a margin of safety. 205 Such a strong mandate requires comprehensive and protective TMDLs. Minimal  load restrictions, set at a least protective, marginal level, will not fulfill  the statutory duty. For example, EPA Region X's Chief of the Office of Water  Planning, Thomas Wilson, has stated that a lack of data needed to set an  exacting TMDL should not slow the process. 206 He explained that:  "in other words, Congress says ignorance is no excuse for inaction. Just add a  margin of safety to compensate for the lack of knowledge and keep moving. No other program has such a strong statutory endorsement  for action in the face of an incomplete database." 207

Moreover, the state must identify its waters that do not meet water quality  standards and prioritize, by way of ranking, the severity of the pollution. 208 Such identification, ranking, and prioritization is clearly indicative of a  congressional sense of urgency to clean up badly polluted waters.  "It is interesting to note that Chief Wilson has included a statement in an  October 1990 report that strongly suggests EPA views itself as having a duty to  respond to state inaction on TMDLs." 209 The report says

by statute, EPA is given only 30 days to identify and establish any TMDL needed  because of State inaction. This short deadline, along with the margin of safety  requirement ... almost guarantees that any EPA-developed TMDL would be more  stringent than a State-developed one. 210

EPA has regulations on setting a TMDL, which contain two elements: (1) a waste  load allocation, which is the point source allotment of the TMDL; and (2) a  load allocation, which is the portion allocated to nonpoint sources of  pollution. 211 The TMDL allocations should then help bring the stream up to water quality  standards:

Implementation of TMDLs may be accomplished by putting additional controls on  nonpoint and/or point sources of pollution. EPA guidance notes that the TMDL  process provides for tradeoffs between point and nonpoint pollutant loadings.  The guidance states that if best management practices or other nonpoint source  pollution controls make more stringent load allocations practicable, wasteload  allocations for point source pollution can be made less stringent. 212

The TMDL process is by no means a new notion. Since 1972, the Clean Water Act  has recognized that technology-based controls may not be the  "cure-all" of all of our nation's water ailments. 213 Section 303(d) of the Clean Water Act mandates each state to identify water  quality impaired waters and then to   set TMDLs to correct the problem. 214 The administrator of the EPA was to identify pollutants suitable for TMDL  calculations, and the TMDL was to be stringent enough to provide a margin of  safety. 215 The plan sounded fairly simple and easy to implement. It was not.

First, by October 18, 1973 EPA was to develop and publish a list of pollutants  suitable for TMDL measurements. 216 Five years later and pursuant to a court order from Board of County  Commissioners v. Costle, 217 EPA determined that all pollutants may be considered in TMDL calculations. 218 Second, EPA did not have regulations in place that defined a TMDL until 1985. 219 These regulations were also spawned by litigation. 220 Prior to Scott v. City of Hammond, EPA had taken the position that it had no  responsibility to set or approve TMDLs until a state had done so. 221 However, the Scott court held that EPA did have a duty to develop TMDLs when  the states failed to submit them. The court held:

We believe that, if a state fails over a long period of time to submit proposed  TMDLs, this prolonged failure may amount to the  "constructive submission" by that state of no TMDLs .... The allegation of the complaint that no TMDLs  are in place, coupled with the EPA's admission that the states have not made  their submissions, raises the possibility that the states have determined that  TMDLs for Lake Michigan are unnecessary ... then the EPA would be under a duty  to either approve or disapprove the  "submission." 222

In the more recent case of Alaska Center for the Environment v. Reilly, 223 Judge Rothstein of the United States District Court for the Western District  of Washington held that Alaska's ten year delay in submitting TMDLs to EPA was  a constructive submission of no limits, and thus triggers a mandatory duty for     EPA to promulgate the limits. 224 Judge Rothstein said:

Congress' repeated use of the term  "shall" in sec. 303(d) clearly places a mandatory duty upon the EPA to take  affirmative action after disapproving a state's unacceptable submission. Read  in light of common sense and the fact that Congress set out such short time  deadlines in this section, it is strongly arguable that Congress intended that  EPA's affirmative duties be triggered upon a state's failure to submit a list,  or any TMDL at all. 225

Alaska was required to identify water quality limited waters by 1979, but at  the time of the suit, which was over ten years later, the state had still not  made a single TMDL submission to the EPA. 226 To make matters worse, Alaska and the EPA had not even completed the first  stage of the TMDL procedure - the identification of water quality limited  waters. 227 This was certainly an insult to both the letter and the spirit of the CWA,  because  "Alaska's 1988 305(b) Report categorized several hundred distinct waterbodies as  either  "impaired' or  "threatened' by water pollution." 228 Of the one segment that was identified as water quality limited,  "there is no evidence that the EPA ever approved or disapproved that submission  within the 30 day deadline." 229

The third major reason why the TMDL process has been delayed for twenty years  is because EPA claims to have focused its resources on  "technology-based controls of the act and ... on other sections of the act or  water quality programs that have congressionally mandated time frames." 230 Furthermore, EPA officials have stated that setting TMDLs can be difficult  where multiple sources, multiple pollutants or both impair water quality. 231

However, the true genesis of the difficulty in setting TMDLs stems from the  "acutely political judgement as to who's ox will be gored." 232 What state or federal regulatory agency   has the courage to  "place its head into the jaws of a public utility, a chemical plant, or local  farmers, all of whom may be responsible for a given form of pollution." 233 No regulatory agency or Governor in Arkansas has had that courage. 234

B. Time for TMDLs

Ironically, the EPA cites section 319 deadlines as one of the reasons they  have not been able to give more emphasis to section 305(d) TMDL requirements. 235 Arkansas has completed its section 319 reporting and development of its best  management practices. 236 However, absent TMDLs, the best management practices are simply voluntary  programs absent any enforcement. Moreover, in a time of limited state and  federal resources, TMDLs can be used to save money and time. 237

Dillon Reservoir, about seventy miles west of Denver, Colorado, has been cited  by the EPA  "as a good example that demonstrates the potential effectiveness and cost-saving  possibilities of comprehensively setting maximum pollution limits." 238 This area has experienced high population growth combined with extensive land  use changes. 239 This has greatly increased phosphorus loadings (also a major constituent of  chicken manure) and spawned algal blooms. 240 It was discovered that phosphorus could be removed for $ 119 per pound through  nonpoint controls versus $ 824 to $ 7,861 per pound by point sources. 241 The area developed an innovative nonpoint control program that  "was necessary to avoid a sewer tap moratorium, which would effectively freeze growth and severely restrict Summit County's strong economy." 242

It is time for Arkansas to set TMDLs on its water quality impaired waters.  Northwest Arkansas in particular has water quality problems related directly to  the poultry industry. Therefore, it will be much easier to set TMDLs there than  in areas with multiple nonpoint sources of pollution. Furthermore, nonpoint  restrictions in northwest Arkansas would be much cheaper to implement than  additional point source controls. Simple management practices like composting  of dead birds, litter spreading rates at no more than five tons per acre per  year, and waste application buffer zones of 100 feet around water bodies would  do much to alleviate water quality problems. The TMDL process would move these  and other management practices from being merely voluntary.

 

VI. Conclusion

The concentration of poultry production in Arkansas has dramatic repercussions  for fish, wildlife, and the environment in general. It will be tragic if  poultry wastes are allowed to destroy the environment of Arkansas or the  environment of any other poultry producing state. The industry expanded so  quickly that regulatory controls were not able to keep pace. In most  situations, controls have not even been attempted.

If poultry operations are not regulated as point sources, then TMDLs must be  set to control the massive discharges of pollutants. This will force the state  to address the problem and to allocate loadings among the polluters. This  process will likely lead to the conclusion that best management practices for  poultry producers will be the quickest, most cost-effective, and simplest  solution to the problem. Moreover, the TMDL would be an enforceable limitation  that would force implementation of best management practices.

 

FOOTNOTES:

n1. Arkansas Agricultural Statistics Service, Arkansas Agricultural Experiment  Station, Arkansas Agricultural Statistics 1990, 1-2 (July 1991) hereinafter  AASS.

 

n2. Id. at 2.

 

n3. Id.

 

n4. Id.

 

n5. Id.

 

n6. Id.

 

n7. Id.

 

n8. Tyson Foods, Inc., Tyson Foods' Commitment to the Environment (1992). Tyson  Foods, Inc. is headquartered in Springdale, Arkansas and is the largest poultry  processor in America. Tyson has 61 major facilities in 12 states and Mexico,  and processes 1.3 billion chickens and produces 1 million hogs yearly. The  company employs 47,000 people and has 6,000 contract poultry and hog growers.

 

Tyson produces more than 5,000 different food products, including poultry,  beef, and pork. Because of Tyson's Mexican Original line of food products, the  company is one of the world's largest manufacturers of corn and flour tortilla  products. Founded in 1935, Tyson is a fairly young company that has grown to  achieve annual sales of $ 4 billion in 1991. Id.

 

n9. Arkansas Poultry Federation, in Arkansas, the Chicken and the Egg Both Come  First!.

 

n10. Id.

 

n11. Id.

 

n12. See, e.g., United States Department of Commerce Statistical Abstract of the  United States 1991, 461 (111th ed. 1991).

 

n13. Arkansas Poultry Federation, supra note 9.

 

n14. Id.

 

n15. Id.

 

n16. Id.

 

n17. Id.

 

n18. Id.

 

n19. University of Arkansas Cooperative Extension Service, 1990 Arkansas Poultry  Production 4.  "United States per capita consumption of total poultry in 1990 was 90.1 pounds  .... 4.2 pounds more than in 1989. This change reflected a 1.1 pound-per-capita  increase for broilers. Per capita consumption of turkey increased by 2.2 pounds  ...." Id. Long-term increases in poultry consumption in this country are even more  remarkable:

 

During the period from 1960 to 1990, per capita consumption of  "total poultry" increased from 34.0 pounds to 90.1 pounds; broiler consumption increased from  23.4 pounds to 69.9 pounds; and turkey consumption increased from 6.2 pounds to  18.1 pounds.

 

Poultry as a percentage of total meat consumed per capita has gradually  increased its share from 11 percent in 1940 to 36 percent in 1990 ....

 

Id. By contrast,  "per capita consumption of  "total red meats' was 162.5 pounds in 1990, down 4.9 pounds from 1989;  "beef and veal' consumption was down 2.2 pounds in 1990, and pork consumption  was down 2.2 pounds ...." Id. From 1960 to 1990, per capita consumption of total red meats only  increased from 161.0 pounds to 162.5 pounds; beef and veal consumption only  increased from 91.2 pounds to 97.0 pounds; and pork consumption increased from  64.9 pounds to 68.3 pounds. Id.

 

The only facet of the poultry industry that is not showing a dramatic increase  in demand is the consumption of eggs. Per capita consumption of eggs in 1990  was 233.9, down 2.1 from 1989. From 1950 to 1990, per capita consumption of  eggs has dropped from 389.0 (1950) to 233.9 (1990). This is a decrease of 155.1  eggs in the 40 year period. Id.

 

n20. Id. at 2.

 

n21. Id. at 4.

 

A significant factor in the long-run increase in per capita consumption of  poultry has been highly competitive retail prices of poultry as compared with  retail prices of red meats. In 1990, the average price of ready-to-cook  broilers was 89.9 cents a pound. In comparison, the average price of retail  cuts of choice grade beef was $ 2.81 a pound, over three times the price of  broilers; and the average price of retail cuts of pork was $ 2.13 a pound, over  two times the price of broilers.

 

Id.

 

n22. Dr. T. Lionel Barton, Cooperative Extension Service, University of Arkansas,  The Integrated Poultry Industry 3 (1987).

 

n23. Id.

 

n24. Id.

 

n25. Id.

 

n26. Id.

 

n27. Id.

 

n28. University of Arkansas Cooperative Extension Service, supra note 19, at 22. In  1990 Arkansas produced 951.2 million broilers, 22.0 million turkeys, and 18.2  million chickens other than broilers. Broilers comprise the vast majority of  poultry production in Arkansas. Id.

 

n29. Telephone Interview with Claud Rutherford, Executive Vice-President, Simmons  Industries (June 17, 1992).

 

n30. Id.

 

n31. Id.

 

n32. Id.

 

n33. D.R. Edwards  & T.C. Daniels, Environmental Impacts of On-Farm Poultry Waste Disposal - A  Review, 7 (unpublished manuscript, University of Arkansas) (on file with the  Tulane Envtl. L.J.). It is important to note that there is a distinction  between the terms poultry  "litter" and poultry  "manure." Poultry litter is the material used by poultry for bedding during the  production cycle. This litter material is typically sawdust, wood shavings,  wheat straw, peanut hulls, or rice hulls. Of course, during production, poultry  manure is mixed with the litter. To clean out the manure, the bedding materials  must also be removed. Id. at 4.

 

Poultry  "manure" is the pure excrement from the birds. Poultry manure contains less carbon and  iron than poultry litter, but more nitrogen, phosphorous, chlorine, calcium,  nitrogen, copper, and zinc. Id. at 5.

 

n34. Id. at 3.

 

n35. University of Arkansas Cooperative Extension Service, supra note 19, at 1.

 

n36. Id.

 

n37. Id. at 17-20.

 

n38. Edwards and Daniels, supra note 33, at 2.

 

n39. Arkansas Department of Pollution Control and Ecology, Arkansas Nonpoint Source  Pollution Management Program 6, Oct. 1991 hereinafter ADPC&E.  "Extraordinary Resource Waters" are defined as a  "combination of the chemical, physical and biological characteristics of a  waterbody and its watershed which is characterized by scenic beauty,  aesthetics, scientific values, broad scope recreation potential and intangible  social values."

 

n40. The environmental degradation spawned by the poultry industry is damaging  these opportunities at the same time the public becomes more aware of the  problem due to President Bill Clinton's campaign and election.  "When national publicity first began to spread a few weeks ago that the  tributaries of the White River in northwest Arkansas were polluted with chicken  waste and hog waste, Gaston's Resort on the White River at Lakeview had two or  three cancellations of reservations from out-of staters." The Insider: Tourism Trouble, Ark. Times, June 4, 1992, at 3.

 

n41. Interview with Dr. Dave Urbston, Assistant Division Chief, Research, Arkansas  Game and Fish Commission (Mar. 23, 1992).

 

n42. ADPC&E, supra note 39, at 6.

 

n43. Id. at 45.

 

n44. Id.

 

n45. Id.

 

n46. Id. at 46.

 

n47. ADPC&E, supra note 39, at 46.

 

n48. Id. Animal manures can be an excellent source of natural fertilizer, however:

 

Proper application of manure to the land is conservation in the best sense.  Animal manures are applied to agriculture lands to promote plant growth,  improve soil structure, and to safely dispose of  "wastes." Before supplies of synthetic nitrogen fertilizers became readily available,  manure was a major source of nitrogen for crop production and animal manure was  highly prized. A cropland management program properly using animal manure  increases soil organic matter and improves soil structure. Soil with improved  structure allows water to infiltrate, thereby reducing runoff, erosion, and  loss of nutrients.

 

Id.

 

n49. Id. at 45.

 

n50. Id.

 

n51. Id.

 

n52. Id. at 44.

 

n53. Id.

 

n54. Edwards  & Daniels, supra note 33, at 56.

 

n55. 42 U.S.C. 9601 -75 (1990  & Supp. 1992). See 40 C.F.R. 261.4(b)(2) (1989), which lists:

 

(b) Solid wastes which are not hazardous wastes. The following solid wastes are  not hazardous wastes:

 

(2) Solid wastes generated by any of the following and which are returned to  the soils as fertilizers:

 

(i) The growing and harvesting of agricultural crops.

 

(ii) The raising of animals, including animal manures.

 

See also Randolph L. Hill, An Overview of RCRA: The  "Mind-Numbing"  Provisions of the Most Complicated Environmental Statute, 21 Envtl. L. Rep. 10254, 10261 (1991). (Similarly, agricultural wastes used as fertilizers are exempt.). Further,  agricultural wastes do not fall under the solid waste provisions of RCRA. See 40 C.F.R. 257.1(c)(1) (1989).

 

n56. Timothy Rogers, Corning Inc. To Pay $ 1.83 Million Fine, Centre Daily Times,  March 13, 1992, at 1A. Corning, Inc. was forced to pay a $ 1.83 million fine  due to their releases of arsenic in Pennsylvania. The fine was the largest ever  paid in the EPAs Mid-Atlantic Region for a violation of the emissions standards  for hazardous pollutants. Id.

 

n57. Edwards  & Daniels, supra note 33, at 8.

 

n58. Id.

 

n59. Id.

 

n60. Id.

 

n61. See ADPC&E, supra note 39, at 6. See also Regulation Establishing Water Quality Standards  for Surface Waters of the State of Arkansas 7 (1991).  "Primary contact recreation" is defined as:

 

This beneficial use designates waters where full body contact is involved. Any  streams with watersheds of greater than 10 mi'2' are designated for full body  contact. All streams with watersheds less than 10 mi'2' may be designated for  primary contact recreation after site verification.

 

Id.

 

n62. See ADPC&E, supra note 39, at 19-28.

 

n63. Id. at 3.

 

n64. Id. at 4.

 

n65. Author's confidential source.

 

n66. Id.

 

n67. Interview with Stuart Woolridge, Biologist, Arkansas Game and Fish Commission  (Mar. 23, 1992); see also Letter from James E. Johnson, Leader of Arkansas  Cooperative Fish and Wildlife Research Unit, to John Holleman (Mar. 19, 1992)  (on file with the Tulane Envtl. L.J.). Mr Johnson states:

 

Our work in Logan Cave National Wildlife Refuge is to look at water quality  specifically for threatened Ozark cavefish and a candidate species of  troglobitic crayfish; gray bats also inhabit the cave but are probably less  affected by water quality changes. We have a good idea of the recharge area for  Logan Cave spring, and can calculate the land-use on that relatively small  area. However, trying to relate high nutrient levels in Logan Cave spring to  chicken rearing and litter spreading will likely be impossible. The reason is  because gray bats deposit large amounts of guano in the cave during the  maternity season, and the waters of the stream often inundate this extremely  rich nutrient source. Because aquatic cave organisms have evolved in this type  of habitat ... any effects of additional nutrient loading will be difficult to  isolate and even more difficult to determine the effect on the listed species.

 

n68. Gregg Patterson, What's Happening to Our Smallmouth Streams?, Ark. Game  & Fish, Spring 1991, at 2.

 

n69. Id.

 

n70. Id.

 

n71. ADPC&E, supra note 39, at 28.

 

n72. Patterson, supra note 68, at 2.

 

n73. Id.

 

n74. Id. at 2-3. Gravel is prolific in smallmouth streams. Gravel operators simply  drive up to the creek with a front end loader and a dump truck. They then dig  gravel from the creek bed for a few days. This kills small aquatic organisms  that live in the gravel by coating them with mud and silt. The mud and silt  travel for several miles downstream, killing additional aquatic organisms  besides those in the immediate vicinity of the site. There are no state  regulations dealing with sand and gravel operations in-stream.

 

Another major problem for smallmouth has been the damming of their streams. In  the 1950s and 1960s large dams were built on the White River (Bull Shoals), the  Little Red River (Greers Ferry), and on the Little Missouri River (Greeson).  These streams were once premier smallmouth fisheries, but were wiped out for  miles below the dam.

 

Smallmouth must also suffer from human as well as poultry waste. The Arkansas  Department of Pollution Control and Ecology reports that  "a high majority of the state's municipalities exceed pollution limits in their  water discharge permits during the course of a year due to single event  circumstances beyond their control, like flooding .... In the last six months  of 1990, 21 percent were considered habitual violators."

 

Dams, gravel operations, municipal waste and poultry waste all diminish  smallmouth habitat or pollute the habitat that remains. This intensifies  fishing pressure. Streams which once commonly produced three to four pound  smallmouth now have few fish greater than twelve inches. Id. at 4-6.

 

n75. Id. at 6.

 

n76. Id.

 

n77. Patterson, supra note 68, at 6.

 

n78. Dr. Paul B. Connerly, President of the American Public Health Association,  said,  "If the fish are dying, the people are not far behind." Bethany Probst, If Fish Are Dying from Pollution, the People Can't Be Far  Behind, Tampa Trib., Apr. 23, 1970.

 

n79. Patterson, supra note 68, at 6.

 

n80. Id.

 

n81. Id.

 

n82. Id.

 

n83. Id.

 

n84. Interview with Dr. Dave Urbston, supra note 41.

 

n85. Id.

 

n86. Id.

 

n87. Id.

 

n88. Id.

 

n89. Id.

 

n90. Id.

 

n91. Id.

 

n92. William R. Davidson  & Victor F. Nettles, Field Manual of Wildlife Disease in the Southeastern United  States 245 (1988). The disease is caused by a protozoan parasite and attacks  the liver. See also Letter from Dr. Victor F. Nettles, Director of Southeastern  Wildlife Disease Study Cooperative, to John Holleman (Mar. 20, 1992) (on file  with the Tulane Envtl. L. J.). Dr. Nettles cites a recent study by a graduate  student that found  "litter from commercial breeder or layer operations would pose a significant  risk for blackhead disease." Id. The study found that 533 out of 900 breeders (24/30 flocks) and 109 out of  900 layers (10/30 flocks) were positive for Heterakis gallinarum, the cecal  nematode vector of blackhead disease. Washington County houses 1.1 million  layers and almost 1 million breeders. Benton County is home to nearly the same  amount. Id.

 

n93. Davidson  & Nettles, supra note 92, at 249.

 

n94. Id.

 

n95. Id. at 247-49.

 

n96. Id. at 249.

 

n97. Id. at 246.

 

n98. Id. at 249.

 

n99. Id. at 246.

 

n100. Id. at 249.

 

n101. Id. at 238.

 

n102. Id. at 238, 240.

 

n103. Id. at 240.

 

n104. Id.

 

n105. Id.

 

n106. Id.

 

n107. Id. at 235.

 

n108. Id. at 235-36.

 

n109. Id. at 235.

 

n110. Id. at 237.

 

n111. Id. at 241.

 

n112. Id.

 

n113. Id. at 243.

 

n114. Id. at 251-52.

 

n115. Id. at 253.

 

Wild turkeys commonly harbor a variety of ticks, mites, lice, and louse flies.  Most infestations are not a health problem for turkeys, although very heavy  tick infestations may cause poultry mortality in certain locales. The scaly leg  mite produces lesions on the legs that resemble avian pox lesions, but this  parasite is rare. Infestation of lice or their eggs may be readily noticeable  when present in large numbers.

 

Id.

 

n116. ADPC&E, supra note 39, at 46. The Arkansas Livestock  & Poultry Commission does have regulations for poultry carcass disposal.  Arkansas Act 20 of 1989 provides:

 

ACCEPTABLE METHODS ARE AS FOLLOWS:1. Cremation or incineration

 

2. Disposal pit

 

3. Composting of carcasses

 

4. Extrusion

 

5. Rendering

 

6. Cooking for swine feed

 

CREMATION OR INCINERATION AS A METHOD OF CARCASSDISPOSAL - a. Controlled burn  machine for the purpose of cooking carcass so as not to disseminate disease.  This means cooking carcass until meat is rendered to ash.

 

DISPOSAL PIT AS A METHOD OF CARCASSDISPOSAL -

 

a. Must be at least 4 feet deep, (not exceeding 6 feet deep) and 3 feet wide.

 

b. Must be covered with concrete or wood with metal, to seal out H'2'O and  varmits sic. As many drop-holes as needed can be used.

 

c. Such pit shall not penetrate the water table.

 

d. Such pit shall be constructed in a manner that will prevent the disposal of  "fowl carcasses" on exposed bedrock.

 

e. Such pit shall be constructed a minimum distance of 100 feet from the  nearest water well or surface water.

 

f. Water and air pollution standards of the state of Arkansas will be followed  as stated by the agreed upon memorandum of understanding by the Arkansas  Livestock and Poultry Commission and the Arkansas Department of Pollution  Control and Ecology. See infra note 121.

 

g. Covers for drop pipe heavy enough so animals cant remove.

 

h. Flocks under 500 capacity - a post hole pit will be acceptable in lieu of a  digestion pit or incineration.

 

i. In the event of a major die-off, a pit may be used that is 2 to 4 feet deep  that will be covered by 2 feet of dirt daily. Lime may be used to control odor  if needed.

 

COMPOSTING AS A METHOD OF CARCASS DISPOSAL -

 

a. Must be practically odorless.

 

b. Must be to where pathogenic bacteria are destroyed (150F).

 

c. Carcasses must be reduced to nothing, only feathers and bones remaining.  This takes about 10-14 days.

 

d. Operated to where fly larvae are not a problem.

 

EXTRUSION AS A METHOD OF CARCASS DISPOSAL - a. Enough heat must be generated to  render finished product pathogen free.

 

b. Carcasses, if moved off the farm, must be moved under  "Carcass Moving Guidelines."

 

c. Permit required from the Arkansas Livestock and Poultry Commission.

 

RENDERING AS A METHOD OF CARCASS DISPOSAL - a. Shall be done without odor  contamination.

 

b. Area around rendering unit shall be maintained in a sanitary manner; that is,

 

(1) No carcasses of any type being held over 24 hours.

 

(2) No pools of contaminated material allowed.

 

(3) Carcasses must be ground and temperature must reach 230F.

 

(4) End product stored in a clean area that is varmit sic-proof.

 

c. Carcasses, if moved off the farm, must be moved under  "Carcass Moving Guidelines."

 

d. Permit required from the Arkansas Livestock and Poultry Commission.

 

COOKING FOR SWINE FEED AS A METHOD OF CARCASSDISPOSAL - a. Temperature of 212F  must be maintained for 30 minutes.

 

b. Shall be done without odor contamination.

 

c. Area around cooking unit shall be maintained in a sanitary manner; that is,

 

(1) No carcasses of any type being held over 24 hours.

 

(2) No pools of contaminated material allowed.

 

(3) End product stored in a clean area that is varmit sic-proof.

 

d. Carcasses, if moved off the farm, must be moved under  "Carcass Moving Guidelines."

 

e. Permit required from the Arkansas Livestock and Poultry Commission.

 

POULTRY CARCASS MOVING GUIDELINES FROM FARM1. Anytime poultry carcasses are  removed from the farm, they must be moved under the  "Poultry Carcass Moving Guidelines."

 

2. May be canceled in times of LT, AI or anytime state veterinarian deems  necessary to stop disease spread.

 

3. Poultry carcasses must be placed in a leak-proof garbage dumpster that  remains on the farm, then dumped into a sealed, leak-proof garbage truck; or  can be sealed in leak-proof plastic containers to be placed in a sealed,  leak-proof vehicle to be moved to the site of destruction.

 

1989 Ark. Act 20.

 

n117. Arkansas Act 20 of 1989 provides:

 

Amendments To Regulations For Acceptable Methods Of Poultry CarcassDisposal1.  On-farm freezing will be added as an acceptable method of holding poultry  carcasses until they can be disposed of in a proper manner as described in  regulations.

 

2. In the event of a major die-off:

 

a. Rendering will be the method of choice for disposal, except when death is  caused by a disease entity.

 

b. A ditch may be used when dug 2-4 feet deep and covered by at least 2 feet of  dirt. Lime may be used to control odor if needed.

 

1989 Ark. Act 20.

 

n118. Tim Taylor, Recycling by the River, Ark. Bus., June 29, 1992, at 25.

 

n119. Id.

 

n120. Id.

 

n121. Id. Moreover, the dead birds were buried or simply dumped on the surface. This  presented a massive source of possible water pollution. A memorandum of  agreement has been entered into by the Arkansas Livestock and Poultry  Commission and the PC&E in an attempt to further address the dead bird issue. The agreement states:

 

MEMORANDUM OF AGREEMENTThe Arkansas Livestock and Poultry Commission and the  Arkansas Department of Pollution Control and Ecology hereby enter into  agreement for the purpose of implementation of Act 168 of the 1985 session of  the Arkansas General Assembly.

 

1. The Arkansas Department of Pollution Control and Ecology will continue to  have authority to approve and permit all Class I, II, III and IV landfills in  the State of Arkansas and for waste stream approval of wastes to be disposed of  therein.

 

2. The Arkansas Livestock and Poultry Commission shall have approval authority  for disposal of  "fowl carcasses" in an  "approved disposal pit" or by an  "approved incineration" method as defined in the aforestated act provided that such authority in no  way abridges the authority of the Arkansas Department of Pollution Control and  Ecology to protect the environment and public health through the enforcement of  State environmental laws.

 

3. The Arkansas Livestock and Poultry Commission shall have authority to  approve such disposal pits under the following conditions:

 

A. An  "approved disposal pit" shall not exceed 6" feet sic in depth.

 

B. Such pit shall not penetrate the water table.

 

C. Such pit shall be constructed in a manner that will prevent the disposal of  "fowl carcasses" on exposed bedrock.

 

D. Such pit shall be constructed a minimum distance of 100' from the nearest  water well or surface water.

 

4. Open pits for emergency disposal to accommodate a major die-off will require  daily soil cover and lime application as necessary to control odor.

 

5. The Arkansas Livestock and Poultry Commission shall have authority for  approval of incineration in a manner that will produce emissions that do not  exceed the  "Air Quality Standards" as set forth in the  "Arkansas Air Pollution Control Code."

 

6. The authority of the Arkansas Livestock and Poultry Commission for  "approved incineration" shall be limited to approval of small incinerators with less than 200 lbs. per  hour capacity.

 

7. The Arkansas Department of Pollution Control and Ecology will include, in  its wastewater permitting requirements under Act 472 of 1949 as amended for  poultry operations, the condition that  "fowl carcasses" will be disposed of in a manner approved and in an area approved by the  Arkansas Livestock and Poultry Commission.

 

TERMS AND DURATIONThis Agreement becomes effective when signed by all parties.  It may be terminated or modified by agreement of the parties and may be  terminated by either party by giving sixty (60) days notice in writing to the  other. Unless terminated by written notice, this memorandum will remain in  force indefinitely.

 

Memorandum between the Arkansas Livestock  & Poultry Commission and the Arkansas Department of Pollution Control  & Ecology (on file with the Tulane Envtl. L.J.).

 

n122. ADPC&E, supra note 39, at 46.

 

n123. Telephone Interview with Charles McCool, Staff Engineer, State Permits Branch,  Water Division, Arkansas Department of Pollution Control and Ecology (Mar. 24,  1992). Mr. McCool says that no broiler houses use liquid manure management  systems and only about 33% of the egg production houses use this system. Id.

 

n124. Federal Water Pollution Control Act, 33 U.S.C. 1251 -1389 (1992).

 

n125. 33 U.S.C. 1251 (a).

 

n126. Id. 1251(a)(1).

 

n127. Id. 1251(a)(2).

 

n128. Id. 1311(a).

 

n129. See infra notes 154-82 and accompanying text.

 

n130. 33 U.S.C. 1362 (14) (emphasis added).

 

n131. 40 C.F.R. App. B (1992) requires that:

 

An animal feeding operation is a concentrated animal feeding operation for  purposes of 122.23 if either of the following criteria are met.

 

(a) More than the numbers of animals specified in any of the following  categories are confined:

 

(1) 1,000 slaughter and feeder cattle,

 

(2) 700 mature dairy cattle (whether milked or dry cows),

 

(3) 2,500 swine each weighing over 25 kilograms (approximately 55 pounds),

 

(4) 500 horses,

 

(5) 10,000 sheep or lambs,

 

(6) 55,000 turkeys,

 

(7) 100,000 laying hens or broilers (if the facility has continuous overflow  watering),

 

(8) 30,000 laying hens or broilers (if the facility has a liquid manure system),

 

(9) 5,000 ducks, or

 

(10) 1,000 animal units; or

 

(b) More than the following number and types of animals are confined:

 

(1) 300 slaughter or feeder cattle,

 

(2) 200 mature dairy cattle (whether milked or dry cows),

 

(3) 750 swine each weighing over 25 kilograms (approximately 55 pounds),

 

(4) 150 horses,

 

(5) 3,000 sheep or lambs,

 

(6) 16,500 turkeys,

 

(7) 30,000 laying hens or broilers (if the facility has continuous overflow  watering),

 

(8) 9,000 laying hens or broilers (if the facility has a liquid manure handling  system),

 

(9) 1,500 ducks, or

 

(10) 300 animal units;

 

and either one of the following conditions are met: pollutants are discharged  into navigable waters through a manmade ditch, flushing system or other similar  man-made device; or pollutants are discharged directly into waters of the  United States which originate outside of and pass over, across, or through the  facility or otherwise come into direct contact with the animals confined in the  operation.

 

Provided, however, that no animal feeding operation is a concentrated animal  feeding operation as defined above if such animal feeding operation discharges  only in the event of a 25 year, 24-hour storm event.

 

The term animal unit means a unit of measurement for any animal feeding  operation calculated by adding the following numbers: the number of slaughter  and feeder cattle multiplied by 1.0, plus the number of mature dairy cattle  multiplied by 1.4, plus the number of swine weighing over 25 kilograms  (approximately 55 pounds) multiplied by 0.4, plus the number of sheep  multiplied by 0.1, plus the number of horses multiplied by 2.0.

 

The term manmade means constructed by man and used for the purpose of  transporting wastes.

 

Id.

 

n132. Id.

 

n133. Id.

 

n134. Id.

 

n135. Telephone Interview with Claud Rutherford, supra note 29.

 

n136. 40 C.F.R. 122.23(c) (1992).

 

n137. Id.

 

n138. However, poultry operations with less than the number of chickens set forth in  Appendix B to Part 122 will have to meet at least one of the three additional  requirements given in 22.23(c)(v)(2)(i), (ii) and 122.23(c)(3). These poultry  farms must discharge pollutants through a manmade ditch, flushing system, or  similar manmade device, or meet the  "pass over" requirement. Moreover, the Director must conduct an on-site inspection of the  operation and determine that the operation should and could be regulated under  a permit program. 40 C.F.R. 122.23(c) . These additional requirements will make it nearly impossible to get the  smaller poultry farms designated as point sources.

 

n139. ADPC&E, supra note 39, at 6, 28.

 

n140. Id. at 28.

 

n141. Id.

 

n142. Id. at 25.

 

n143. Id.

 

n144. Id.; see also Jack Curry, Jr., Buffalo River Offer Paddlers Sights, Thrills,  The Times-Picayune (New Orleans), Apr. 1, 1992, at D-1.

 

n145. 40 C.F.R. 122.23(c)(1)(iii) .

 

n146. ADPC&E, supra note 39, at 45.

 

n147. Patterson, supra note 68, at 6.

 

n148. 40 C.F.R. 122.23(c)(1)(iv) .

 

n149. ADPC&E, supra note 39, at 6.

 

n150. Id.

 

n151. Id.

 

n152. Richard Braun, Emerging Limits on Federal Land Management Discretion:  Livestock, Riparian Ecosystems, and Clean Water Law, 17 Envtl. L.J. 43, 71 n.  88 (1986).

 

An alternative practice is to provide cattle with direct access to a small  length of stream that has otherwise been fenced to keep the cattle out. These  areas are known as  "water gaps." Both  "sacrifice areas" and  "water gaps" are analogous to  "concentrated animal feeding operations" and probably qualify as point sources subject to Clean Water Act permit  requirements. No court has yet addressed this question .... If  "sacrifice areas" and  "water gaps" are point sources, their operation without permits may be enjoined by citizens  pursuant to the Clean Water Act.Id. (citations omitted); see also 33 U.S.C. 1365 (1982) (providing for citizen suits).

 

n153. Braun, supra note 152, at 43, 71 n.88.

 

n154. ADPC&E, supra note 39, at 2.

 

Nonpoint source pollution is caused by diffuse sources that are not regulated  as point sources and normally is associated with agriculture, silviculture and  urban runoff from construction activities, etc. Such pollution results in the  human induced alteration of the chemical, physical, biological, radiological  integrity of water. In practical terms, nonpoint source pollution does not  result from a discharge at a specific single location (such as a single pipe)  but generally results from land runoff, precipitation, atmospheric deposition,  or percolation.

 

Id.

 

n155. Robert D. Fentress, Comment, Nonpoint Source Pollution, Groundwater, and the  1987 Water Quality Act: Section 208 Revisited?, 19 Envtl. L.J. 807, 808-09  (1989).

 

n156. Id. at 808 n.3.

 

n157. Pub. L. No. 100-4, 316(a), 101 Stat. 52 (1987) (codified as amended at 33 U.S.C. 1329); see also Fentress, supra note 155, at 809.

 

n158. 33 U.S.C. 1288; see also Fentress, supra note 155, at 808.

 

n159. Fentress, supra note 155, at 808.

 

n160. 33 U.S.C. 1329 (b)(1).

 

n161. ADPC&E, supra note 39, at 1.

 

n162. 33 U.S.C. 1329 (a), (b).

 

n163. Id. 1329(b)(1).

 

n164. Id. 1329(b)(2).

 

n165. ADPC&E, supra note 39, at 2.

 

n166. Id.

 

n167. Id.

 

n168. Id. at 3.

 

n169. Id.

 

n170. Id. at 2.

 

n171. Id. at 3.

 

n172. Id.

 

n173. Id.

 

n174. Id.

 

n175. Id. at 4.

 

n176. Id.

 

n177. Id.

 

n178. Id.

 

n179. Id.

 

n180. Id.

 

n181. Id.

 

n182. Id. at 6.

 

n183. 33 U.S.C. 1329 (a),(b).

 

n184. Arkansas Soil and Water Conservation Commission, Status of Section 319  Nonpoint Source Program, in Arkansas Nonpoint Source Management Status Report  No. 2, at 2 (Robert Morgan ed., 1991). hereinafter Section 319 Status.

 

n185. Id.

 

n186. Id.

 

n187. Id.

 

n188. Arkansas Soil and Water Conservation Commission, Governor's Task Force on  Animal Waste, in Arkansas Nonpoint Source Management Status Report No. 2, at 3  (Robert Morgan ed., 1991). For example, the Moores Creek/Muddy Fork watershed  program was implemented to address an area with severe poultry pollution.

 

The USDA is expending in excess of $ 750,000 to address the animal waste  problems in these watersheds. ASWCC has contracted with the Arkansas Water  Resources Center to sample water quality in Moores Creek during the USDA  project. Documentation of the effectiveness of the watershed project and of  selected BMPs is the expected result of the monitoring.

 

The monitoring consists of monitoring edge-of-field runoff from individual  BMPs to determine their effectiveness in reducing nutrient concentrations in  runoff. BMPs to be monitored are  "Nutrient Management, Dead Bird Composting and Critical Area Treatment." In addition, limited in-stream monitoring will determine the combined  effectiveness of implementation of BMPs watershed wide. Grab samples will be  taken at each site bi-weekly. During storm events, automatic samplers will take  composite samples at four edge-of-field sites and at two in-stream sites. The  samples will be analyzed for nutrients, organic strength and bacteria.

 

Id.

 

n189. Id. at 3.

 

n190. Id.

 

n191. Id.

 

n192. See id.

 

n193. Interview with Wallace Dellinger, Project Engineer, Arkansas Soil and Water  Conservation Commission (Mar. 23, 1992).

 

n194. For example, the ASWCC has recommended that each farm have a waste management  plan. Until plans can be prepared for each site, interim Best Management  Guidelines have been recommended. These include:

 

1. Poultry litter should not be stored outside unless proper runoff controls  are provided for collection and containment of rainwater that comes in contact  with piles of litter.

 

2. Poultry litter should be evenly distributed over application sites at a rate  not to exceed 5 tons per acre per year, or according to a site-specific land  management plan, with no more than 2.5 tons/acre in each application. (As a  rule of thumb, 30 acres for one 16,000 sq. ft. house per year).

 

3. Land application of poultry waste should not be undertaken when the soil is  saturated, frozen or covered with snow, or during rainy weather, or when  precipitation is in the immediate forecast.

 

4. Poultry waste should not be applied on slopes with a grade of more than 15%,  or according to a site-specific land management plan or in any manner that will  allow waste to enter the waters of the state.

 

5. Surface and subsurface application of poultry waste should not be made  within 25 feet of rock outcrops; 100 feet of streams, ponds, lakes, springs,  sinkholes, wells, water supplies and dwellings, or according to a site-specific  land management plan.

 

6. Records should be kept by the farmer of the dates, quantity, and specific  sites where litter is applied; or if the litter is sold, a record should be  kept of who buys the litter, the dates, quantities, and farm or sites where the  litter is applied or utilized.

 

7. Vehicles used for transporting poultry litter on state or federally  maintained roads or more than 1 mile on any other public road, should be  covered or tarped.

 

Cooperative Committee for Poultry Farm Litter and Waste Disposal, Dry Poultry  Litter Handling: Best Management Guidelines (on file with the Tulane Envtl.  L.J.). Furthermore, the ASWCC has recommended buffer zones between litter  application areas and water sources. Arkansas Soil and Water Conservation  Commission  & Governor's Animal Waste Task Force, Public Information Article No. 1 (Dec.  1991), published in Arkansas Nonpoint Source Management Status Report No. 4.  These buffer zones will  "help to prevent nonpoint source pollution by eliminating direct application of  wastes to the water. In addition, pollutant laden sediments carried in runoff  from the application site will have a chance to settle out before they reach  the stream." Id.

 

n195. Arkansas Soil and Water Conservation Commission, Annual Voluntary Assessment  of Best Management Implementation in Poultry Production, in Arkansas Nonpoint  Source Management Status Report No. 4, at 3  & attachment A (Robert Morgan ed., 1991).

 

n196. Mark Bradley, Training Course for Water Quality Technicians, in Arkansas  Nonpoint Source Management Status Report No. 5, at 2 (Robert Morgan ed., 1992)  (on file with the Tulane Envtl. L.J.).

 

n197. Id.

 

n198. Id.

 

n199. Id.

 

n200. Id. at 3.

 

There are four steps to effective waste utilization as fertilizer:

 

(1) Analyze the nutrient content of the litter.

 

(2) Analyze the nutrient content of the soil.

 

(3) Determine the nutrient requirements of the crop based on realistic yield  goals for specific soil types.

 

(4) Establish litter application rates based on crop needs and the nutrient  content of the soil. Bradley, supra note 196 at 5.

 

Id. at 2-3.

 

n201. Id. at 3.

 

n202. See 33 U.S.C. 1313 (d)(1) which requires that:

 

(A) Each State shall identify those waters or parts thereof within its  boundaries for which the effluent limitations required by section 1311(b)(1)(A)  and section 1311(b)(1)(B) ... are not stringent enough to implement any water  quality standard applicable to such waters. The State shall establish a  priority ranking for such waters, taking into account the severity of the  pollution and the uses to be made of such waters.

 

....

 

(C) Each State shall establish for the waters identified in paragraph (1)(A) of  this subsection, and in accordance with the priority ranking, the total maximum  daily load, for those pollutants which the Administrator identifies under  1314(a)(2) of this title as suitable for such calculation. Such load shall be  established at a level necessary to implement the applicable water quality  standards with seasonal variations and a margin of safety which takes into  account any lack of knowledge concerning the relationship between effluent  limitations and water quality.

 

n203. United States General Accounting Office, Water Pollution: More EPA Action  Needed to Improve the Quality of Heavily Polluted Waters, GAO/RCED-89-38, Jan.  1989, at 15. hereinafter GAO Report. See generally Lawrence S. Bazel, Comment,  Water-Quality Standards, Maximum Loads, and the Clean Water Act: The Need for  Judicial Enforcement, 34 Hastings L.J. 1245 (1983) (discussing, inter alia, maximum loads); Fentress, supra note 155 (discussing,  inter alia, TMDLs).

 

n204. Bazel, supra note 203, at 1246. A TMDL is developed based on several factors.  However, two introductory terms must first be explained to understand the  process. A  "load" is the  "amount of matter ... that is introduced into a receiving water...." 40 C.F.R. 130.3(e) (1992).  "Loading Capacity" is defined by EPA as the maximum amount of loading that a water can receive  without exceeding the applicable water quality standard. 40 C.F.R. 130.3(f) .

 

Point sources are given  "wasteload allocations," which are  "the portions of a receiving water's loading capacity that are allocated to one  of the water's existing or future point sources." 40 C.F.R. 130.3 . Nonpoint sources are given  "load allocations" which are the portions of a receiving water's loading capacity that are  allocated to one of the water's existing or future nonpoint or natural sources  of pollution. 40 C.F.R. 130.3(g) .

 

These two elements are then combined to form the  "total maximum daily load" which is  "the sum of the individual waste load allocations for point sources and load  allocations for nonpoint sources and natural background." 40 C.F.R. 130.3(h) .

 

See also GAO Report, supra note 203, at 16 (defining  "waste load allocation" and  "load allocation" in relation to TMDLs).

 

n205. 33 U.S.C. 1313 (d)(1)(C).

 

n206. EPA Nonpoint Source News-Notes, Oct. 1990, at 20, quoted in Alaska Center for the Env't v. Reilly, 762 F. Supp. 1422, 1429 n.8. (W.D. Wash. 1991).

 

n207. 762 F. Supp. 1422, 1429 n.8.

 

n208. 33 U.S.C. 1313 (d)(1)(A).

 

n209. EPA Nonpoint Source News-Notes, supra note 206.

 

n210. Id.

 

n211. Bazel, supra note 203, at 1246, 1269-70; see also 40 C.F.R. 130.2(f) -(h) (1988).

 

n212. Gao Report, supra note 203, at 16.

 

n213. Id. at 13.

 

n214. 33 U.S.C. 1313 (c), (d)(1)(A).

 

n215. Id. 1313(a)(2), (d)(1)(C).

 

n216. Id. 1314(a)(1).

 

n217. Board of County Comm'rs of Calvert County v. Costle, No. 78-0572 (D.D.C. 1978)  (unpublished order), cited in Environmental Defense Fund v. Costle, 657 F.2d 275, 295 n.60 (D.C. Cir. 1981).

 

n218.  43 Fed. Reg. 60,662 (Dec. 28, 1978).

 

n219. GAO Report, supra note 203, at 25.

 

n220. See Scott v. City of Hammond, 741 F.2d 992, 994 (7th Cir. 1984).

 

n221. GAO Report, supra note 203, at 25.

 

n222. Scott, 741 F.2d at 996-97 (citations and footnotes omitted).

 

n223. 762 F. Supp. 1422 (W.D. Wash. 1991).

 

n224. Id. at 1429.

 

n225. Id. at 1427.

 

n226. Id. at 1425.

 

n227. Id. One segment had been identified as water quality limited.

 

n228. Alaska Ctr. for the Env't, 762 F. Supp. at 1425 (citations and footnote omitted).

 

n229. Id.

 

n230. Gao Report, supra note 203, at 24.

 

n231. Id.

 

n232.  Oliver A. Houck, The Regulation of Toxic Pollutants Under the Clean Water Act, 21 Envtl. L. Rep. 10528, 10546 (1991).

 

n233. Id.

 

n234. Terry Lemons, Reality Challenges Some of Clinton's Rhetoric, Ark.  Democrat-Gazette July 27, 1992. The article states,

 

 

 

Although Clinton said the state's water is cleaner, many state  environmentalists claim Clinton has done a poor job of protecting Arkansas  waterways.

 

Critics note many streams are polluted by animal waste from the country's  largest poultry industry ....

 

Environmentalists recite a litany of statistics, including a study by the  state Department of Pollution Control and Ecology. In almost a fourth of the  stream miles studied by PC&E, water was found polluted.

 

Clinton has admitted putting job growth ahead of environmental protection.

 

n235. Id.

 

n236. Section 319 Status, supra note 184.

 

n237. See GAO Report, supra note 203, at 35-36.

 

n238. Id. at 32.

 

n239. Id.

 

n240. Id.

 

n241. Id. at 33.

 

n242. Id. at 34.

 

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