The Oklahoma State Board of Agriculture scrapped a set of proposed rules on Tuesday that would have required new or expanding poultry operations to maintain certain distances away from houses, streams, schools and other locations after it received an overwhelmingly negative response to the proposal.
The board, which in October had issued a temporary suspension on accepting new applications from poultry operations looking to expand or build new and chicken houses, voted to leave the temporary moratorium in place until May 31, when the legislative session adjourns.
The move essentially turns over any decision on addressing issues created by the boom in poultry farms in northeastern Oklahoma — and the concerns voiced by residents who now live near the new farms — to the Oklahoma Legislature.
“I am disappointed we were unable to arrive at a consensus,” said board president and Secretary of Agriculture Jim Reese. “It is a very important, yet highly contentious issue that we worked very hard to address. At the same time, we are happy to punt it to the Legislature.”
Board members seemed confident the Legislature would take up the issue and pass legislation. But critics said that by adding the May 31 end date to the temporary moratorium on poultry feeding operation applications, the board created a situation that allows the poultry industry and its allies in the Legislature to essentially run out the clock without having to add any new regulations or protections.
The proposed rules and the temporary suspension came after a boom in the number of new poultry farms that have popped up in eastern Oklahoma over the past year and a half, especially in Delaware County. The new and expanded farms mostly raise broiler chickens, often tens of thousands of chickens per house, for Arkansas chicken processor Simmons Foods, which in late 2016 year announced a major expansion of its processing plant in Gentry, Ark., just across the Oklahoma-Arkansas border.
Since the expansion began, neighbors reported new poultry farms appearing seemingly overnight near their residences with little or no warning, water wells running dry, a decrease in water and air quality, increased tractor trailer traffic on county roads and, of course, an almost ever-present odor of chicken litter in the air.
In September, Gov. Mary Fallin and Cherokee Nation Principal Chief Bill John Baker announced the formation of the Coordinating Council on Poultry Growth to look into the issues caused by the industry’s expansion to come to a consensus about what should be done and make recommendations.
On Dec. 4, the board proposed a set of emergency temporary rules that would require new poultry houses holding 30,000 birds or more to be at least a quarter mile from any occupied residence (1,000 feet for houses with less than 30,000 birds), a half-mile from public schools and outside of city limits, 150 feet from highways and property lines, 200 feet away from streams, 100 feet away from private wells, 500 feet away from public wells and outside of the 100-year floodplain.
Though the rules were temporary — set to expire in September 2019 or as early as February if the Legislature decided to do away with or change them — it would still provide a temporary solution to lessen the impact of the poultry boom on communities while allowing poultry operations to continue and giving the Legislature time to work on a more permanent fix, Reese said.
After six days, the board received 191 comments from the public — 182 of which opposed the proposed rules. Of those, 142 opposed the rules for not being restrictive enough and 40 opposed the rules for being too restrictive, Reese said.
Groups such as the Oklahoma Farm Bureau, the Oklahoma Cattlemen’s Association and the Oklahoma Pork Council opposed the rules for being too stringent, unnecessary or unvetted.
Loren Frederick, a landowner from Cherokee County who attended the meeting, said he opposed the proposed regulations because they were not strict enough and did not address the dozens of new or expanded poultry operations that were already approved by the board.
“I feel like the setbacks are ridiculous, because they’re not even debatable because of all the applications they approved without protections for human beings, and only protections for chickens,” Frederick said.
The laws and rules governing poultry farms and water usage, Frederick said, have been written in favor of the poultry industry and to provide as little oversight and regulation as possible, at the expense of people’s health.
“It’s all kind of a game in their favor. They’ve changed the regulations in their favor,” Frederick said. “It’s going off an honor system with a bunch of people who aren’t honorable and who don’t care about people.”
The opposition from both sides of the issue ultimately killed the proposal.
“Despite the fact that the emergency rules are temporary, and despite the fact emergency rules have legislative oversight, and despite the fact we have worked diligently to consider the impact of said rule, we will not approve the proposed rule listed as Item 6,” Reese said shortly after the meeting began.
Reese then called for a vote on an item that would leave the temporary suspension on the Department of Agriculture accepting poultry operation applications in place until the Legislature addressed the issue, but an amendment offered by board member Jay Franklin, of Vinita, put the May 31 cap on the suspension.
“The reason I wanted to do that was because I firmly believe all of this should be handled by the Legislature and not an administrative body,” Franklin later told The Frontier. “My idea was the session ends May 31, if the Legislature chooses not to address the issue, then I don’t think it’s fair or in the best interest of the state for the whole poultry industry to be stymied indefinitely.”
Gary Allison, a retired law professor from TU who showed up in support of the residents protesting the chicken farms, said the May 31 deadline essentially takes the pressure off the Legislature to act.
“Had it not been put in place, the Legislature would have been under some pressure to actually do something,” Allison said. “The Legislature in Oklahoma is, in my view, hostile to environmental regulation. So the likelihood that they’re going to act in any way is small.”
Allison also said he believes the board has the power under existing law to better regulate poultry farms, but intentionally chooses not to.
“I believe they had all the authority to do the right thing under existing law, in other words they can change their regulations to be more protective of the water, air and people,” Allison said. For some reason they continue to say they don’t have the authority necessary.”
Reese, who voted against the amendment to add a May 31 deadline, said he opposed adding the date “to leave an encouragement for the Legislature to act on something,” though he said lawmakers will likely still act on the issue.
“I have full confidence the Legislature is going to take up the issue,” Reese told The Frontier, adding that he has heard from lawmakers about the issue. “The integrator companies are interested in being good neighbors, so I think that it will get addressed.”
The issue will likely not be addressed again by the Board of Agriculture until the Legislature acts or the deadline arrives, Franklin said.
“My impression is that we probably will not take the matter up again if and until the Legislature passes a bill for us to apply the rules to,” Franklin said.
However, there is likely to be some movement on the issue in the next few months, said David Page, a Tulsa attorney representing several northeastern Oklahoma landowners.
Page said he plans to file suit on behalf of his clients against the Oklahoma Department of Agriculture, Food and Forestry, possibly as early as January.
“There exists sufficient authority to do a better job of siting these poultry houses,” Page said. “Even though the commissioner said today these are not permit applications, they are in fact permit applications that effect the rights of the people who own land around these operations. So there should be an opportunity for due process — a right to know about it and comment on it.”
Page, who attended Tuesday’s meeting, said the department is not enforcing existing laws and regulations governing poultry houses, and his clients have suffered as a result.
“Because of this failure on the part of the Department of Agriculture, we are planning on bringing a case to require them to follow their own rules and regulations and to properly enforce them, which they’re not doing,” Page said. “The regulations are in place. If the Department of Agriculture would follow them, they would do a better job of protecting natural resources.”
Meanwhile, with about a month left until Fallin and Reese depart, the future of the governor’s Coordinating Council on Poultry Growth — and whether it achieved its goals — is unclear. If Governor-elect Kevin Stitt chooses not to renew Fallin’s executive order creating the council, it would end.
“My understanding was the original hope was to come to some agreement rather than a legislative (solution), to come to a consensus about how everyone was going to interact with this,” Franklin said.
Asked whether Tuesday’s vote demonstrated failure by the coordinating council to achieve that goal, Franklin said there is still time and that the council is likely to meet again.
However, a spokeswoman for Governor-elect Kevin Stitt told The Frontier that no decision about the future of the council has yet been made, as he has yet to select a secretary of agriculture. Once Stitt’s top administration officials are in place, each executive order will be reviewed.