In poultry water case, ruling opens door to challenge farms’ long-term water permits

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Delaware County resident Brandy Whaler presents a cake for those who attended a meeting in Kansas, Okla., on March 2, 2020, updating residents on the status of the lawsuit against the Oklahoma Water Resources Board’s groundwater permitting practices for poultry farms. CLIFTON ADCOCK/The Frontier
Days after a judge determined the series of short-term 90-day groundwater permits issued by the state’s water board to a Delaware County poultry farm violated state law and agency rules, the water board issued one of the permits to a different Delaware County poultry operation, the farm’s seventh such permit since 2018, state records show.

Meanwhile, attorneys who represented the Delaware County residents who brought the lawsuit against the Oklahoma Water Resources Board for its short-term 90 day groundwater permitting process urged neighbors of the poultry farms to use the ruling to begin challenging the long-term groundwater permits that have been issued to the farms by OWRB.

In February, Delaware County District Judge Barry Denney granted a temporary injunction against the OWRB from issuing further 90-day groundwater permits to a poultry operation owned by Chau Tran and Donna Nguyen that had moved in across the road from Louanna Cochran, one of the plaintiffs in the case.

Tran and Nguyen’s poultry operation was one of scores of new farms holding tens of thousands of broiler chickens that were established in eastern Oklahoma — especially in Delaware County — beginning in 2017, after Simmons Foods announced the opening of a new chicken processing facility in Gentry, Ark. Many residents who live near the new farms say they were given little to no notice of the farms moving in and have complained about air and water pollution, as well as dry groundwater wells, as a result of the influx of chicken farms.

“The chicken houses were coming into town and they didn’t tell anybody,” said Matthew Alison, one of Cochran’s attorneys in the case. “But they got their registration in line to conduct their poultry operations first because they don’t have to give notice of that. Then they applied for the water permit with the water board. Then they have to give you notice. That’s the first time you knew there was going to be a chicken house across from your home.”

Tran and Nguyen applied for a long-term groundwater permit from the OWRB, and after Cochran was informed of the application, she filed a protest against it with OWRB, stating that issuance of the permit would likely cause pollution to surface and groundwater and to her property. However, after the protest was filed, OWRB in 2018 issued the first of an eventual six separate back-to-back 90-day provisional temporary permits (PTPs) to the farm.

Those short-term permits, according to OWRB, do not require notice to be given to nearby landowners that a short-term permit has been issued, cannot be protested by neighbors, is issued at the discretion of the agency’s executive director and only requires that four points of law be met.

“They can issue them in secret, nobody knows about them, you don’t get any notice of them even though you’re a landowner next door, even though your interests might be impacted, and your protest doesn’t matter,” said one of Cochran’s attorneys Jason Aamodt, who spoke at a community meeting about the ruling in Kansas, Okla., on Monday. “If you find out about it, they (OWRB) will get a letter from you and then they’ll act like nothing ever happened. Then when it comes to the end of that first 90-day permit, they’ll issue another 90-day permit until ultimately, the water board may never near the long-term application.”

Plaintiff Lou Cochran (left), attorney Jason Aamodt (center) and attorney Matthew Alison (right), speak to a crowd of Delaware County citizens in Kansas, Okla., on March 2, 2020, updating the residents’ on Cochran’s recent court win against the Oklahoma Water Resources Board’s permitting practices for poultry farms. CLIFTON ADCOCK/The Frontier

Denney’s findings of fact and conclusion of law issued on Feb. 19 states that OWRB’s serial-issuance of the permits to Tran and Nguyen violated due-process requirements, circumvented state law and agency rules stating that the 90-day permits cannot be renewed, and that OWRB failed to consider the potential water quality issues that may be created by issuing the permit.

However, records show that on Feb. 22, three days after the judge issued the ruling, OWRB issued a 90-day groundwater permit to a Delaware County poultry operation owned by Nghi Truong and Thuy Diem Nguyen. Truong and Nguyen also have an application for a long-term groundwater permit before OWRB, but it is being protested by a neighbor.

It was the seventh 90-day permit issued to Truong and Nguyen for the farm since August 25, 2018, records show.

“The water board refused to listen to the judge’s order on a chicken house that is identical in substance to the one across from Lou’s (Cochran) house,” said Matthew Alison, another of Cochran’s attorneys. “When we flagged that for the water board and asked why they weren’t shutting them down, they said ‘that’s on a different piece of land.’”

OWRB Executive Director Julie Cunningham told The Frontier that Denney’s ruling only pertains to the Tran and Nguyen farm, and that both farms have special conditions related to constructing their wells and water use reporting, as well as restrictions on the quantity of water authorized.

“Because the Truong/Nguyen farm was housing chickens at the time of the Order, the OWRB determined it was in the best interest of all parties that the water be used in compliance with these terms (of the PTP),” Cunningham said. “However, the agency is working with the facility to determine when the grow-out of the current flock of birds will be completed and water use can cease.”

Aamodt said neither OWRB nor the poultry farms were prepared for Denney’s ruling.

“This order caught them flat-footed,” Aamodt said. “This chicken company made no preparations for us winning this case. The water resources board made no preparations for us winning this case. We’ve been telling them we’re going to win this case and this is how we’re going to win this case for almost two years.”

While Denney’s ruling stated OWRB was not giving proper consideration to the impact of issuing groundwater permits under state and federal water quality and anti-degradation policies, OWRB says it can only consider whether water will be wasted because of water well quality and integrity.

State law “also specifically prohibits the OWRB from making a determination of waste by pollution when the use activity falls within the jurisdiction of the Oklahoma Department of Agriculture, Food and Forestry or the Oklahoma Department of Environmental Quality,” Cunningham told The Frontier. “In this case, the poultry farm is regulated by ODAFF. Therefore, any determination of pollution must be made by that agency.”

In Cochran’s case, Aamodt said, she was told by OWRB that water pollution by poultry farm runoff would fall under the jurisdiction of the Department of Agriculture, but when she approached the Department of Agriculture, they told her it would be the jurisdiction of the OWRB, since it was the entity issuing the groundwater permit.

“So they created this gap that was allowing for this (water quality) backsliding,” Aamodt said.

During Monday’s meeting of concerned residents in Kansas, Okla., Aamodt and Alison warned that the case is likely not over yet, and that they hoped that if the state appeals the ruling, it will do so quickly.

Cunningham said that OWRB, which has 30 days to file an appeal, is weighing its options.

“OWRB staff is working with the Office of the Secretary of Energy and Environment and the Office of the Attorney General to determine the steps to be taken in response to this Order,” she said.

Meanwhile, Aamodt and Alison told the more-than-70 people gathered at the meeting on Monday that Denney’s ruling — particularly the findings that OWRB did not give proper consideration to concerns about surface and groundwater pollution and degradation — opens the door to possibly challenge the long-term groundwater permits that have been issued to poultry farms in the area over the last few years.

Those particular long-term permits are referred to as “temporary permits” because a maximum annual yield hydrological study has not yet been completed for the aquifers that underlie much of Delaware County. Though the long-term “temporary” permits undergo much of the same public notice and administrative hearing process that other long-term permits, according to OWRB. Once a maximum annual yield study of the aquifer is complete, then those temporary permits are converted to more permanent status.

However, the temporary permits can also be challenged if new facts come to light or if there is a significant change in law, Aamodt said, adding that Denney’s ruling stating OWRB failed to consider the surface or groundwater quality ramifications of issuing permits would likely be considered a significant change.

“It’s temporary because you can go in in a year if there’s a new fact or legal change — and here there’s been a big legal change — you can go in and say ‘no, no, no, there’s been a change. That water permit needs to be revoked or modified based on this ruling,”’ Aamodt told the crowd. “That’s what you can do. It’s really important.”

OWRB records show that 21 separate temporary long-term groundwater permits have been issued since 2017 to poultry operations in Delaware, Adair, Ottawa, Craig and Cherokee counties. There are five pending temporary long-term agricultural use groundwater applications in Delaware County and one in Mayes County, according to OWRB, and only one 90-day agricultural groundwater permit for the Truong/Nguyen farm in Delaware County.

“There were other chicken houses that were protested. Some of you protested some of the other chicken houses in your neighborhood. And the water board just told you they will not consider water quality or how pollution is occurring at the site,” Aamodt said during the meeting. “Each of you now would now have a right to go back to the water resources board and demand that they consider how that permit to use that water is going to impact water quality.”

Want to see what agricultural operations have long-term temporary groundwater permits near you? Check the interactive map below.

Aamodt encouraged those interested in having OWRB open a review of a long term permit to send OWRB a letter with a copy of Denney’s order, and asking OWRB to investigate whether the permit is or would cause pollution to surface or groundwater.

“You can force the water resources board to open up every single one of those chicken house permits,” Aamodt said.

However, he warned, protesting those permits is not easy.

It is “a long-term process, it’s no fun and not something you would want to enter into lightly,” Aamodt said. “It’s a big job and takes a lot of effort and it takes a lot of your time away. But it’s worth it, and it’s a service you can do for your community and neighborhood to protect the water quality of your region and make sure these springs and streams continue to flow clean.”

Aamodt and Alison also said OWRB will likely seek a “legislative fix” to the judge’s ruling.

You are going to see legislation happen.” Aamodt said. That would allow OWRB “to issue permits in secret that doesn’t protect your water quality. Think about that. It’s kind of horrifying.”

Senate Bill 1742 by Sen. Kim David, R-Porter, and Rep. Harold Wright, R-Weatherford, would add several requirements to protests against OWRB issuing regular or temporary long-term groundwater permits, including a requirement that wells being protested against be within a quarter mile of the protester’s water well and a requirement that protests must be filed within 30 days of the application being submitted.

Neither David nor Wright returned phone messages from The Frontier seeking more information about the bill.

A spokesman for OWRB said the bill, which passed the Senate Energy Committee on Feb. 20 but has yet to be voted on by the full Senate, was not requested by the agency.

To view a spreadsheet of the short-term 90 day agricultural groundwater permits issued by OWRB since 2017, click here. For a full list of all currently active long-term agricultural groundwater permits issued by OWRB, click here.

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Clifton Adcock

Senior Staff Writer

A veteran investigative reporter who has covered eastern Oklahoma for more than 15 years, Clifton joined The Frontier in April 2017. A native of southeastern Oklahoma, he has covered numerous issues from criminal justice to politics for publications including the Tulsa World, the Oklahoma Gazette, and Oklahoma Watch. Clifton holds a master’s degree in journalism from the University of Oklahoma. Clifton can be reached at clifton@readfrontier.com. Follow him on Twitter @cliftonhowze
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