Judge: state water board ignored anti-water pollution requirements, abused its discretion and ignored pollution complaints

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Blossom Farm poultry feeding operation, located just north of U.S. 412 and just across the road from Delaware County resident Louanna Cochran. CLIFTON ADCOCK/The Frontier
The agency responsible for regulating the state’s water resources ignored complaints by residents of possible water pollution by a nearby poultry farm, provided a series of short-term 90-day permits for the farm for more than a year without consideration of the permits’ environmental impact and offered no way for residents to protest those permits, a Delaware County judge ruled on Friday.

District Judge Barry V. Denney granted a preliminary injunction on Friday against the Oklahoma Water Resources Board, barring the agency from issuing any further temporary 90-day groundwater withdrawal permits to a Delaware County poultry operation that has been granted six back-to-back permits by OWRB over the course of more than a year.

An application by the poultry farm for a long-term permit is still under consideration by OWRB, but is being administratively protested by the plaintiffs in the case.

“OWRB advances the argument, without frankly admitting as much, that (90-day Provisional Temporary Permit) issuance is within the OWRB Executive Director’s discretion and entirely unreviewable. This Court refuses to adopt such a proposition,” Denney wrote, adding that those permits could stretch for more than a year. “Such a proposition is an open invitation to abuse and will not be lent any credence by this Court.”

Denny also ruled that the agency failed to uphold state and federal policies to prevent water pollution or degradation by approving applications for the 90 day permits without any consideration to how granting the permit may impact water quality and quantity other than a assurances by the applicant that they will not pollute the water.

“The Court concludes that irreparable environmental harm is likely to result through the OWRB permitting the use of water without the agency undertaking any review of the potential adverse consequences of such use,” Denney wrote.

And when nearby residents complained about possible water pollution and runoff from the chicken farm, OWRB ignored their concerns and provided no way to protest the short-term permits, Denney wrote.

“The Court concludes that Plaintiffs have demonstrated a particular interest in seeing their real property free of pollution and that the OWRB has not conducted, is not conducting, and will not conduct the necessary review to ensure that the OWRB’s PTP permitting decisions do not lead to direct and foreseeable pollution upon or within the Plaintiff’s property.”

The plaintiffs in the case, Delaware County residents Louanna Cochran, Andrea Cochran, Gerald Cochran, Melissa Foreman, Suzanne Maupin and Viola Powell, filed suit against OWRB last March, and the poultry farm’s owners, Chau Tran and Donna Nguyen, were later added to the suit as interested parties.

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.

One of Tran and Nguyen’s chicken operations, Blossom Farms, began to be built on 72 acres of land in 2018 just across a county road from Louanna Cochran’s house. Cochran, a Cherokee Nation citizen, was not notified that a chicken farm was moving in, and later reported runoff from the chicken farm was going across her yard and into Saline Creek.

Cochran’s only source of water is groundwater, and if it were to become polluted by the chicken farm or depleted by the farm’s use of groundwater, she and her family would no longer be able to live in her house.

When Cochran was notified in March 2018 that Tran and Nguyen had applied to the OWRB for a long-term permit to withdraw groundwater for the chicken operation, she filed a protest asking the OWRB not to approve the permit, saying it could pollute surrounding land, groundwater, surface water, and might lead to waste of water.

Despite knowing that Cochran filed a protest, Tran and Nguyen continued building their poultry operation and by mid-2018, they had a fully constructed chicken farm, court records state. Yet they were unable to begin operating the farm because they lacked the legal right to access water without a groundwater permit from OWRB.

“Tran & Nguyen began construction of the CAFO without having the legal ability to access groundwater for use within the CAFO (Concentrated Animal Feeding Operation) and, moreover, Tran & Nguyen knew or should have known — at the time the commenced construction of their CAFO — they lacked the ability to access water for it.”

In summer 2018, Tran and Nguyen told OWRB they would face economic hardship if they could not access groundwater while their long-term application was going through the administrative process, court records state. Tran and Nguyen applied to OWRB for a “Provisional Temporary Permit,” or PTP — a 90-day permit that “would allow the withdrawal of groundwater from the same wells, for the same purpose, to the same people, and for use in the same place as the protested long-term Temporary Permit…” Judge Denney’s findings of facts and conclusions of law states.

OWRB issued the requested PTP to Tran and Nguyen to withdraw 10 acre-feet of groundwater from Aug. 28, 2018 through Nov. 26, 2018. When that PTP expired, OWRB issued another, and then another after that one expired. For more than a year, the poultry farm was able to legally withdraw groundwater using six 90-day permits.

At no point were the plaintiffs notified about or given the opportunity to protest the temporary permits, the judge’s order states, and OWRB refused to investigate whether the poultry operation’s use of water would cause pollution or degradation of water or land.

According to testimony in the case last year from the OWRB, if  an applicant for a 90-day groundwater withdrawal permit meets four points of law — the land above the water is owned or leased by the applicant, the proposed use of the water constitutes a “beneficial use,” waste will not result from the proposed use of the water, and the proposed use of the water will not degrade or interfere with springs or streams emanating from a sensitive sole source aquifer — then the application is automatically approved, regardless of whether a protest has been filed against the applicant’s long-term application.

OWRB does not give notice to interested parties that a 90-day permit application has been filed or granted, the agency does not have a mechanism or process for people to protest those applications, holds no hearings, and only evaluates the applications based on the “four points of law,” the ruling states.

Last year, OWRB Executive Director Julie Cunningham testified that she has never denied an application for one of the 90-day water withdrawal permit.

“Though OWRB reviewed Plaintiffs’ protest, comment and objection to long-term permit … OWRB did nothing to take into account Plaintiff’s property rights in issuing Tran & Nguyen multiple PTPs,” the ruling states. “Despite the prohibition of renewing PTPs set out in its agency rules, OWRB issued five PTPs in a row, one right after another, without any substantive differences between the permits and which were issued for the same water, for the same purposes, out of the same well, by the same people. The only effective difference between the various PTPs is their effective date.”

OWRB admitted that Cochran and the other plaintiffs told the agency their concerns that their groundwater might be polluted or diminished if Tran and Nguyen were to be granted a permit, that after a temporary permit was granted that water was flowing from the farm to her yard and into Saline Creek, and that the pollution was affecting her and her family, the court record states. However, OWRB did not investigate the concerns, did not consider the complaint when issuing other 90-day permits to the farm, and held no hearings on the matter.

“OWRB contends Plaintiffs’ protest was invalid because it did not provide specific enough information to demonstrate how their legally protected interests would be adversely impacted,” the ruling states. “OWRB staff made a determination regarding the adequacy of Plaintiffs’ protest without notifying Plaintiffs the OWRB was making such a determination. The Court finds that Plaintiffs submitted a valid protest that should have been set for a hearing before any PTPs were issued.”

OWRB also argued that the pollution flowing across Cochran’s yard is not within its jurisdiction, but that of the Oklahoma Department of Agriculture, Food and Forestry, and that the agency is precluded from investigating the matter or even determining whether pollution is occurring unless the Department of Agriculture notifies the agency that it is, the ruling states.

However, OWRB never even forwarded Cochran’s complaints to the Department of Agriculture, despite asserting that it would normally forward such complaints to the other agency, the court record states.“The OWRB contends that Tran & Nguyen essentially promised to not commit waste as a condition of their PTPs and this, according to OWRB’s representations, satisfies the OWRB’s inquiry into the matter,” Judge Denney wrote.

Last year during a hearing, OWRB warned that the ruling could impact the 90-day groundwater permits issued to other entities, including the oil and natural gas industry that are the major users of those permits.

A spokesman for OWRB did not return phone messages left by The Frontier late Friday afternoon.

Matthew Alison, attorney for Cochrans at the Indian and Environmental law firm in Tulsa, said OWRB has notified the poultry farm’s attorneys that no further 90-day groundwater permits will be issued to the farm.

“It is clear Judge Denney took time to carefully review the matter and after doing so, validated the Cochran’s concerns in a well-reasoned, carefully-written order,” Alison said. “Water board staff has disregarded the Cochrans for nearly two years and I hope the judge’s order can mark the beginning of a new era for the water board, where concerns are taken serious and protests aren’t disregarded.”

Alison said he hopes the ruling will result in further protection for the state’s water.

“I don’t think it should be controversial that homeowners have an expectation to have their property free some someone else’s pollution, and I think the judge agrees,” Alison said. “Now I hope OWRB can finally step up ensuring that some level of environmental review is conduction before it issues these industrial-scale permits. If not by the water board, then by one of the other environmental agencies.”

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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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