JAY — Witness testimony wrapped up on Wednesday in a lawsuit brought by Delaware County residents against the Oklahoma Water Resource Board that is seeking an injunction to prevent the water board from issuing any more short-term groundwater permits to a nearby poultry farm.
Attorneys for OWRB, the poultry farm and the plaintiffs must now submit to the court their respective proposed findings of fact and conclusions of law to Delaware County District Judge Barry Denney by Dec. 11 before the court rules on the requested preliminary injunction. An administrative hearing by OWRB on an application for a long-term groundwater permit for the same poultry farm that is also being challenged by the plaintiffs is also scheduled for Nov. 22.
Delaware County residents Louanna Cochran, Andrea Cochran, Gerald Cochran, William Cochran, Melissa Foreman, Suzanne Maupin and Viola Powell filed suit against the OWRB in March. The poultry farm’s owners, Chau Tran and Donna Nguyen, were later added to the suit as interested parties.
The lawsuit comes after a significant increase in poultry operations in eastern Oklahoma — especially in Delaware County — beginning in late 2017 after Simmons Foods announced its plans to build a new poultry processing facility in Gentry, Ark. Residents who live near the new poultry farms have reported decreased water well levels, air and water pollution, and said they were given little to no notice that the chicken farms were moving in.
In 2018, the poultry farm Blossom Farms, a Simmons contractor for broiler chickens, moved in across the road from Louanna Cochran’s rural Delaware County home. Cochran said that runoff from the poultry farm was flowing onto her property and into a nearby creek. Under their contract with Simmons Foods, Tran and Nguyen are required to have two water sources for chickens at their poultry operation.
The lawsuit seeks a declaratory judgement against the OWRB’s issuance of administrative short-term 90-day permits for the withdrawal of groundwater while a protested long-term groundwater applications are under consideration, against the issuance of temporary groundwater permits after a protest against one has been filed and against the serial issuance of the 90-day temporary permits for long-term water use.
Two main legal questions have delayed OWRB hearing the long-term ground permit application from the poultry operation — whether or not the poultry farming operations will pollute and thereby waste groundwater or stream water and whether or not the board’s issuance of 90-day provisional temporary permits to the applicant require notifying and allowing a right to protest the application by surrounding landowners.
The poultry farm involved in the suit, the Simmons Foods broiler chicken contractor Blossom Farms, filed an application for a long-term groundwater permit in late 2017, but has been granted five separate temporary 90-day groundwater permits since mid-2018.
Unlike the long-term permits, the granting of temporary permits is decided by OWRB’s director rather than the full water board. The process also does not allow for protests against the short term permit application and does not require notification of neighbors that an application has been filed or a permit granted.
Most of Wednesday’s testimony came from Kent Wilkins, chief of OWRB’s planning and management division, who was called to testify by OWRB Assistant General Counsel Jonathan Allen.
Wilkins said Tran and Nguyen met all of the requirements by OWRB for a short-term groundwater permit while their long-term permit was under consideration, and that the poultry farm has used much less water than it had been granted access to.
Wilkins said when considering whether to grant a permit, OWRB must determine whether the applicant meets four points required by law: the land over the groundwater must be owned or leased by the applicant, that the water used will be considered a beneficial use, ground water will not be wasted by the applicant, and the use will not degrade the surface water that comes from a sensitive sole-source groundwater basin.
However, Wilkins testified, when it comes to entities whose activities are regulated by the Oklahoma Department of Environmental Quality or the Oklahoma Department of Agriculture, Food and Forestry, OWRB is precluded from determining whether groundwater is being wasted because of pollution. Rather, Wilkins said, that determination of waste by pollution would fall to one of those other entities.
“The waterboard would only be allowed to look at their own jurisdictional areas regarding waste, otherwise we are precluded from determining whether waste will occur” as a result of their operations, Wilkins said.
If there is a complaint to OWRB from another agency that groundwater waste or pollution is occurring, then OWRB would evaluate the information and, if substantiated, the permit may be revoked, Wilkins said. And if OWRB has reason to believe that waste by pollution is occurring by an entity regulated by DEQ or the Department of Agriculture, the complaint must be forwarded to those agencies, he said.
A protest filed with OWRB against the poultry operation’s long-term permit included an allegation that ground and surface water would likely be polluted by the farm, said the plaintiffs’ attorney, Jason Aamodt of the Indian and Environmental Law Group in Tulsa. When asked during cross-examination by Aamodt whether he had forwarded that complaint to the Department of Agriculture, Wilkins said he did not and was unaware whether any other OWRB workers did so.
“Why did you not take our protest seriously?” Aamodt asked.
“We take every protest seriously,” Wilkins replied.
Later, when asked by Allen about the issue, Wilkins said that the allegations in the protest were too broad, had no evidentiary backing provided that their interests would be violated and did not touch on the four points of law OWRB considers in groundwater permit applications.
“That alone would not be sufficient to be a valid protest,” Wilkins said.
Aamodt pointed out that state law puts jurisdiction over implementing the state’s surface water anti-degradation policy within the realm of OWRB and asked whether any statute exempted OWRB from bringing that into consideration while considering granting groundwater permits, which is one of three OWRB programs that affects surface water quality.
“I’m saying our general counsel does not require us to utilize this when evaluating permits,” Wilkins said.
“So you’ve never actually done this?” Aamodt asked.
“Correct,” Wilkins responded.
After testimony concluded, Cochran told The Frontier the arrival of the poultry farm has negatively changed the area she has lived in for almost half a century.
“I’ve lived there pretty close to 50 years. I’ve seen a lot there. I’ve seen it grow and people come in when it used to be just us there,” Cochran said. “It feels closed in. I feel invaded.”
Anna Tran, the daughter of Chau Tran and Donna Nguyen, testified on Wednesday that she often helps her parents with translating and the business’s paperwork. She told The Frontier that the lawsuit has created a great deal of uncertainty for the business, but that she and her family remain optimistic about the case.,
“We just want to have our farm operation,” Anna Tran said. “It (the lawsuit) definitely doesn’t help.”
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