Update April 22, 2020, 12:05 p.m. – The OWRB has since uploaded video of Tuesday’s meeting online at: https://app.sharebase.com/#/document/144560/share/199-tyMkhvCW129cC1s9JCGNT7OYKnA
The Oklahoma Water Resources Board approved two Delaware County poultry operations’ applications for long-term groundwater permits on Tuesday, over protests of residents who live near the poultry farms concerned that the farms would pollute ground and stream water.
The groundwater permit applications by the two separate Delaware County poultry farm owners Chau Tran and Donna Nguyen as well as Nghi Truong and Thuy Nguyen were both unanimously approved by the board, which partially met via teleconference during a special meeting on Tuesday.
Delaware County residents have pushed back against the applications since they were first filed in 2017. In February, a Delaware County judge issued a temporary injunction and scathing ruling against the Oklahoma Water Resources Board, writing that the agency abused its discretion in issuing numerous serial “short-term” groundwater permits to Tran and Nguyen since 2018 while the long-term permit was under consideration, ignored complaints of pollution and failed to take into account the impact that issuing the permits would have on water quality and water quantity.
That ruling has since been appealed to the Oklahoma Supreme Court by Tran and Nguyen.
Attorneys for the poultry operations’ owners did not return messages from The Frontier Tuesday evening.
Though OWRB’s special meeting at 9:30 a.m. on Tuesday was streamed live on the agency’s Facebook page, the video was deleted from the agency’s Facebook page a few hours later.
Agency spokesman Cole Perryman said he was told by OWRB General Counsel Sara Gibson to delete the video around 1:30 p.m. A copy of the meeting’s audio was provided by OWRB to The Frontier.
Gibson told The Frontier that the Oklahoma Open Records Act does not require the agency to keep a video on its public Facebook page and that OWRB uses audio recordings for its board meeting records.
“The video is a record,” Gibson said, “however, the Open Records Act does not require OWRB to leave the video posted on Facebook.”
When asked why OWRB chose to remove the video from its Facebook page, Gibson said “The OWRB placed the livestream from the Zoom meeting on Facebook as another option for those who wished to attend/view the scheduled meeting of the Board as it was in progress.”
During the meeting, attorneys for both the applicants and those protesting the long-term permits addressed the board. Tran and Nguyen’s application went before an OWRB hearing examiner in November, while Truong and Nguyen’s went before a hearing examiner in January.
The hearing examiner found in favor of both applicants and met the necessary elements for a long-term groundwater permit — the applicant own the land, the dedicated land overlies a known fresh groundwater basin, the proposed use of the water for the poultry operation would be considered “beneficial use,” that waste of water will not occur and the water will not come from a sensitive sole-source basin.
Both poultry farms, which are similar in size and located a few miles from each other, are on land overlying the Boone and Roubidoux aquifers. Tran and Nguyen’s application requested up to 50 acre-feet of water per year while Truong and Nguyen’s requested up to 160 acre-feet per year.
During Tuesday’s meeting, Jason Aamodt, an attorney for the protesting residents in both cases argued they were precluded by the hearing examiner from offering evidence that at least one of the poultry operations was causing water pollution by using waste water to cool the chicken barns and allowing the water to run off the location. Blaine Nice, attorney for Tran and Nguyen, argued the issue had already been rectified.
Aamodt, along with co-counsel Matthew Alison, also argued to the board that the OWRB hearing examiner ignored the order of Delaware County Judge Barry Denney that states the OWRB must consider whether the approval of a ground water application will have a detrimental effect on ground or surface water under federal and state laws.
“The hearing examiner has just refused to follow the direction of the Delaware County District Court that requires the Water Resources Board to consider and apply the state’s water quality standards and implementation plan as well as the federal and state non-degradation standards under the state and federal Clean Water Act,” Aamodt said.
Nice, along with Truong and Nguyen’s attorneys Erin Potter Sullenger and Scott Butcher, told the board that regulation of the poultry farms mostly lies with the Oklahoma Department of Agriculture, Food and Forestry, and the hearing examiner agreed.
“The circumstances here are we have a poultry operation that is under the regulatory authority of ODAFF and has the authority to enforce all the water quality concerns that have been expressed by the protestants,” Sullenger told the board.
Aamodt disagreed, saying both the law and Judge Denney’s ruling state that the board must take water pollution into consideration when awarding permits.
“The applicant’s argument, which failed before the … District Court is the same argument that is put forth by the hearing examiner,” Aamodt said, “and that is there is some sort of special exception for agricultural interests in the groundwater application. That’s not how the law reads.”
The board unanimously approved both applications, which were both amended by the board slightly.
Aamodt hinted that the decision may be facing an appeal, which would likely go before the Delaware County District Court.
“If the Water Board refuses to implement the state district court’s order,” Aamodt said, “then of course the appeal on this matter will go back to that same state district court, who I imagine will be relatively frustrated by hearing that the Water Board is failing to comply with his valid order.”
Read the proposed findings of fact and conclusions of law for the poultry operations below.