Poultry waste continues to pollute Illinois River Watershed, experts testify

Judge hears new testimony in nineteen-year-old federal lawsuit between the State of Oklahoma and eleven poultry companies.

December 17, 2024

The poultry industry continues to shirk responsibility for polluting the Illinois River Watershed (IRW) as lawyers for the eleven companies named in a federal lawsuit called its own expert witnesses on December 16.

As reported by the Tulsa World, the director for the Arkansas Department of Agriculture’s Livestock and Poultry Division, Patrick Fisk, testified that more poultry litter is being shipped out of the region and less is being applied to lands inside the watershed since the original trial ended in 2010, based on statistics produced by his office.

Environmental scientist Dimitrios Vlassopoulos, another defense witness, testified that urban development has also contributed to elevated levels of pollutants in the watershed since the first trial ended, the Tulsa World reported. The region’s population has increased by 24 percent since 2010, and the number of people served by wastewater treatment plants in the area has increased by 85 percent, Vlassopoulos said.

On Friday, December 6, the poultry industry’s first expert witness, John Connolly, testified that the probable cause of phosphorous in the IRW is point-source discharge from area municipal wastewater treatment plants, not poultry litter land application, a nonpoint source. He also said that phosphorous concentrations have decreased at some sampling locations in the past fifteen years.

This recent testimony seeks to refute evidence offered by the plaintiff in the case, the State of Oklahoma, as represented by the office of Attorney General Gentner Drummond. According to the state’s expert witnesses, who testified in early December, the IRW has continued to be polluted by elevated phosphorous levels resulting from past and current and land application of poultry waste created by industrial-scale chicken production in northeastern Oklahoma and northwestern Arkansas.

In a lawsuit spanning nineteen years, U.S. District Judge Gregory Frizzell called for this month’s evidentiary hearing to determine whether his 2023 ruling, based on evidence presented at trial fifteen years ago—that the IRW had been polluted as a result of land application of phosphorous-rich chicken litter which then ran off into nearby waterways—is still in fact happening or has changed for the better, as the poultry industry claims.

Then Attorney General Drew Edmondson filed the lawsuit in 2005 against more than a dozen poultry companies operating in Oklahoma and Arkansas.

State attorneys called seven witnesses, including six from four different state agencies, said Leslie Berger, Press Secretary for the Office of Oklahoma Attorney General. “The State presented evidence concerning the ongoing elevated phosphorus levels in the IRW and the continued impact of phosphorus from current and historic land-application of poultry waste in the IRW for which the defendants are responsible.”

Shanon Phillips, director of water quality at the Oklahoma Conservation Commission, testified on Thursday, December 5, that chicken farms in the IRW produce an estimated 255,120 tons of poultry litter (a mix of waste, bedding, and chicken carcasses) every year, but only about half of it gets exported out of the region.

In 2022, there were 479 poultry houses in the Oklahoma portion of the watershed, including 414 that are attributable to companies named in the lawsuit, the state’s lawyers wrote in a brief filed with the court, citing information provided by the Oklahoma Department of Agriculture, Food, and Forestry. Another 1,143 poultry houses are in Arkansas, totaling 85 percent of the chicken farms in the watershed.

According to the state’s lawyers, more than 234 million chickens are raised in the watershed annually, including about 53 million in Oklahoma.

In January 2023, Frizzell ruled that “hundreds of thousands of tons of poultry litter generated by defendants’ chickens and turkeys” are being spread annually onto the lands of the Illinois River watershed. Runoff caused by rain and irrigation carry phosphorous in the litter into the nearby streams and rivers. Frizzell also ruled that land application of poultry waste has caused the soil in many areas of the watershed to have phosphorous levels “in excess of any agronomic need.”

Since the conclusion of the trial in 2010, poultry growers contracted to the defendants—including Tyson Foods Inc., Cal-Maine Foods Inc., Cargill Inc., Simmons Foods Inc., George’s Farms Inc., and Peterson Farms Inc.—have “continued to land apply quantities of poultry waste on the surface of the ground of the Illinois River watershed in both Arkansas and Oklahoma,” Phillips wrote in her report.

Furthermore, the watershed’s land and waters remain polluted by phosphorous, with several stretches of streams and rivers included on the Environmental Protection Agency’s list of polluted waters, Phillips wrote. “The legacy phosphorous in the lands of the Illinois River watershed will continue to make its way into the (watershed) for many years to come, causing them to remain polluted.”

According to Phillips, the only way to eliminate the phosphorous pollution in the IRW is to end land application of poultry waste in the region and to institute measures such as buffer strips that would limit run-off of existing phosphorous into waterways. “This process will take a long time to correct the water quality problems that have been caused by defendants’ decade-long pollution practices,” Phillips wrote in a report submitted as evidence.

Julie Chambers, environmental programs manager at the Oklahoma Water Resources Board, submitted a report stating that Lake Tenkiller has become eutrophic due to high concentrations of phosphorous, which causes an increase of blue-green algae, a decrease in water clarity, and a decrease in dissolved oxygen, in violation of Oklahoma’s antidegradation standards.

Despite the poultry industry’s claim that phosphorous levels have decreased since the 2010 trial, the Illinois River, based on state and federal water quality data, shows an upward trend in its phosphorous loadings over a five-year span from 2019-2023, wrote Chambers in her report.

Another expert witness for the state, research specialist Katie Mendoza, wrote in a report presented as evidence that only 3.46 percent of the total phosphorous loading into the watershed comes from point sources like wastewater treatment plants, while the other 96.54 percent comes from nonpoint sources like land runoff. Mendoza works at Texas A&M University’s AgriLife Research center, where she develops hydrologic computer models that analyze soil and groundwater data.

Even if the land application of poultry litter had stopped completely in 2010, the amount of phosphorous still in the soil by 2031 would still have averaged approximately 600 percent greater than the state’s water quality standard of .037 milligrams per liter, according to the computer model analysis, Mendoza wrote.

Frizzell granted a defense motion to bar Mendoza from testifying in person during the hearing, but lawyers for the state and the poultry industry agreed to include her written report as her testimony, Berger said.

Soil scientist Gregory Scott submitted an expert report on behalf of the state calling for a moratorium on poultry waste application in the region. “To help reverse the phosphorous pollution in the waters of the IRW, we have to stop making the problem worse. That means we need to stop the land application of poultry waste. Nothing else will begin to clean up the problem until the land application of poultry waste stops,” Scott wrote. “As it is, if we stopped land application today, ‘legacy’ phosphorous already in the soil from decades of land application will continue to leak into the waters for decades.”

Producing hay and physically removing it from the IRW would help deplete the amount of legacy phosphorous in the soil, Scott wrote. “Removing one ton of hay grown in the phosphorous laden soils of the IRW would remove about 15-20 pounds of phosphorous per ton of hay. This would help remove the phosphorous from the watershed and make a cleanup of the water occur faster.”

The evidentiary hearing was scheduled to conclude on Tuesday, December 17.

Chicken poop gets political

The lawsuit has featured several political twists and turns in recent months.

Governor Kevin Stitt fired his cabinet secretary of energy and environment, Ken McQueen, on December 3 after McQueen attended the evidentiary hearing in Tulsa. “I am disappointed that Ken McQueen would join AG Drummond, former AG Drew Edmondson and environmentalists in opposition to Oklahoma farmers and landowners by appearing at a court hearing today in his capacity as Secretary,” Stitt posted on social media. “This nearly two-decade-old case is a radical left attempt at backdoor regulation through litigation. I’ve fired him from his position as Secretary of Energy and Environment and Director of the Department of Energy effective immediately.”

The Frontier reported after McQueen’s firing that he had submitted a letter of resignation in November, stating his intention to leave the post at the end of 2024. On the same day he fired McQueen, Stitt announced the appointment of energy industry executive Jeff Starling as the new secretary of energy and environment.

In September, Oklahoma Secretary of Agriculture Blayne Aurthur wrote a letter to Judge Frizell expressing her concern that his final ruling could circumvent the lawmaking process, which, in her words, "is best left to elected legislators and officials in the executive branch.”

Aurthur explained that the Oklahoma Legislature in 2022 passed phosphorous testing limits higher than those recommended by the United States Department of Agriculture’s Natural Resources Conservation Service and Frizzel’s own 2023 ruling. “Any such court-ordered ruling will conflict with state law,” Aurthur said, echoing the poultry industry’s assertion that conditions in the IRW have improved since 2010.

The Oklahoma Legislature passed SB 1424 this year, amending the Oklahoma Registered Poultry Feeding Operations Act. The language, “There shall be no discharge of poultry waste to waters of the state,” was stricken, replaced with language tying “best management practices” to the concept of nutrient management plans, which are plans approved by ODAFF that outline how poultry waste is to be handled and disposed of.

Governor Stitt eagerly signed SB 1424 into law.

The law now forbids property owners in the IRW whose lands and surface waterways have been polluted by runoff from poultry litter from pursuing legal action against contracted poultry growers unless an enforcement action has been taken by the Oklahoma Department of Agriculture, Food, and Forestry. The law also provides legal immunity to poultry corporations, legally called integrators.

In an op-ed published last spring in The Oklahoman, former attorney general Drew Edmondson and former governor Frank Keating wrote that this legislation was the latest in a years-long effort by state lawmakers to protect the poultry industry from taking responsibility for polluting the IRW. “(The law) is the most blatant special interest legislation to come down the pike,” they wrote. “It benefits only out-of-state companies making billions of dollars at the expense of Oklahoma’s rivers and lakes. It does not protect farmers. It does not protect Oklahoma resources.”

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