Water Wars Waged Again With Latest Lawsuit
Complaint Comes As Water Quality Improves, Officials Say
By Jeff Niese
The NW Arkansas Morning News
A water-quality lawsuit filed this week against area poultry companies sounds a lot like Revenge of the Okie. The third lawsuit in two decades between parties in Oklahoma and Arkansas is shaping up as a battle only George Lucas could rival.
"(The lawsuit is) a shakedown of the poultry industry for money," said Marcus Devine, director of the Arkansas Department of Environmental Quality.
Devine and others say the latest lawsuit damages the goodwill created from a 2003 agreement between the states. It also comes as the water quality of the Illinois River improves, he said.
"The (Oklahoma) attorney general's lawsuit has a chilling impact on the progress we have been making. We're still analyzing how it will affect the agreement," said Randy Young, director of the Arkansas Soil and Water Conservation Commission.
Oklahoma Attorney General Drew Edmondson maintains he filed Monday's lawsuit to stop pollutants that enter scenic rivers in eastern Oklahoma and 22 public water supplies.
"The companies now know I am in deadly earnest and will proceed to court if they are not more productive in reaching a resolution," Edmondson said in a phone interview Wednesday.
Edmondson said although progress has been made with municipal wastewater treatment plants, the poultry industry is failing to stop contamination of Oklahoma rivers.
The lawsuit names eight poultry companies, including the world's largest poultry company, Tyson Foods Inc. of Springdale, and six subsidiaries of those companies.
At issue is the phosphorus levels in the Illinois watershed. The Illinois River flows into Oklahoma, where it is listed as a scenic river, and eventually into Lake Tenkiller near Tahlequah, Okla., about 60 miles southwest of Fayetteville.
The 2003 agreement requires Northwest Arkansas cities that discharge into the Illinois watershed to meet a phosphorus level of 0.037 milligrams per liter by 2012. Most cities discharge with a phosphorus level of 0.1 milligrams per liter now.
Additionally, legislation passed in that same year requires farmers in the watershed to create chicken-litter application plans and to file them with the state.
Chicken litter contains high levels of phosphorus. Farmers spread the litter on their fields as a fertilizer. Runoff from the fields during heavy rains can carry phosphorus into a river as an indirect pollution source.
The Illinois River has a phosphorus level of 0.15 to 0.2 milligrams per liter on average throughout the year, about seven times higher than the 0.037 limit set by Oklahoma in 2002, according to Derek Smithee, water quality division chief for the Oklahoma Water Resources Board.
Oklahoma sued Fayetteville in 1986 over the city's plans to discharge wastewater into the Illinois River. The case went to the Supreme Court where Oklahoma lost, sort of. The justices in a 1992 decision said Oklahoma could not stop Fayetteville's plans to discharge in the Illinois. However, the state can require the city to meet Oklahoma's water standards.
The water quality in the Illinois River has improved over the past three years during regular base flow periods, Smithee said. He attributes the improvement to the 2003 agreement.
Episode two occurred in 2001 when the city of Tulsa sued six poultry companies and the city of Decatur for damaging Tulsa's water supply. An out-of-court settlement appointed a special master who decides where and how much chicken litter farmers can use.
Kit Williams, Fayetteville city attorney, said Edmondson will face "proof problems" in pinning the pollution on a specific source -- like a particular poultry farm.
There are 2,871 poultry houses in the two states that are in the Illinois watershed, according to the Oklahoma Attorney General's office.
And the poultry companies have no plans of going it alone.
Up to 130 third party entities, including fertilizer companies, have been notified by the poultry companies targeted by Edmondson that they will be brought into the suit for allegedly contributing to pollution of the Illinois River, according to Janet Wilkerson, a spokeswoman for the companies being sued.
Edmondson said he has not ruled out a pretrial settlement. As such he has held off serving papers to the poultry companies.
"We're not looking to stop all of the waste used as fertilizers. We're looking to stop the excess waste. And to use what the land can absorb. Use what they need to grow crops and get the rest out of there," said Charlie Price, spokesman for the Oklahoma Attorney General's office.