A federal district judge ruled last week that the State of Oklahoma has proven with data and anecdotal evidence that there has not been any substantive change in poultry litter pollution of the Illinois River watershed.
The ruling by Oklahoma Northern District U.S. Judge Gregory Frizzell included the finding that phosphorus and bacteria from poultry waste continues to be a significant source of damage to the waters of the Illinois River watershed and Lake Tenkiller.
Poultry litter spread on land dissolves in rain and flows into the Illinois and Spavinaw rivers and on into Lake Tenkiller, which is an impoundment of the Illinois River, reported Bob Jackman of Tulsa, a hydrogeologist.
Frizzell pointed to evidence showing that Lake Tenkiller has become eutrophic – enriched with dissolved nutrients that stimulate the growth of aquatic plant life – which was caused by phosphorus concentrations in the reservoir. Eutrophication is “manifested in a variety of ways, including an increase in amounts of algae, including blue-green algae, a decrease in water clarity, and a decrease in dissolved oxygen,” the judge found. In addition, sections of Lake Tenkiller are listed on Oklahoma’s 2022 303(d) list as impaired for phosphorus.
The federal court previously found that in 2005 there were approximately 1,900 active poultry houses in the Illinois River watershed, 425 of which were located in Oklahoma and the other 1,475 were in northwest Arkansas.
Fifteen years later the watershed was polluted by more than 431,000 tons of chicken litter generated in 2020 by hundreds of northwest Arkansas broiler house – statistics Jackman said were lifted from a State of Arkansas official report.
Public reports prepared by the Arkansas Department of Agriculture’s Livestock and Poultry Division showed that during Fiscal Year 2023, there were 1,004 houses with a total capacity of 23 million birds in Benton County, Arkansas, and 729 houses with a total capacity of more than 19 million birds in Washington County, Arkansas. That year, 205,433 tons of poultry litter were generated in Benton County and 102,106 tons of poultry litter were generated in Washington County.
Based on exhibits prepared by Patrick Fisk, director of the Livestock and Poultry Division for the Arkansas Department of Agriculture, only 46.83% of those 307,539 tons of litter produced in just two counties in 2023 was transferred out of the Illinois River watershed, Frizzell noted.
Frizzell initially presided over a trial that spanned 52 days over the course of five months, and subsequently conducted an evidentiary hearing in the case Dec. 3-6 and again Dec. 16-17, 2024.
While the judge has yet to issue a final ruling in the 20-year-old lawsuit, Oklahoma Attorney General Gentner Drummond said he wants to secure an agreement that ensures clean water and a robust poultry industry.
“I’m committed to finding a path forward that restricts poultry producers from polluting the Illinois River and allows us to clean up the watershed to preserve it for future generations,” Drummond said.
“We very much value the poultry companies... But that doesn’t mean the industry can pollute the Illinois River, one of our state’s greatest treasures. Having a clean river doesn’t mean we can’t also have good industry. Both can, and should, exist.” Mediation failed Frizzell ruled in favor of Oklahoma in January 2023, but subsequent mediation between the Attorney General’s Office and poultry companies was unsuccessful. Later, the defendants moved to have the suit dismissed, arguing in part that there had been a significant reduction in phosphorus levels since the time of trial.
The judge determined that not to be the case, finding phosphorous concentrations remain alarmingly high in the impacted rivers and streams. Data “further demonstrates an upward tick in total phosphorus loadings from 2019 to 2023,” Frizzell wrote.
Seven segments of the Illinois River and its tributaries have been listed on Oklahoma’s 2022 303(d) list as impaired for phosphorus, and those listings were approved by the U.S. Environmental Protection Agency, the jurist added.
Consequently, Frizzell previously ruled that phosphorus concentrations in streams and rivers of the Illinois River watershed in Oklahoma are “elevated beyond natural or background levels in violation of Oklahoma’s antidegradation standards for these waters.”
The court further found that phosphorus concentrations in the Illinois River, Flint Creek and Baron Fork Creek “exceeded the total phosphorus criterion applicable to scenic rivers, and the aesthetics beneficial use was impaired for total phosphorus in violation of Oklahoma water quality standards.”
During trial, Lance Phillips, environmental programs manager for the Rivers and Streams Section of the Oklahoma Water Resources Board who earned a Bachelor of Science degree in environmental management from Northeastern State University at Tahlequah, testified that the elevated phosphorus concentration levels have resulted in significant increases in algae in the rivers and streams of the Illinois River watershed, which has adversely affected the aesthetics of those rivers and streams.
Phillips also testified that the current phosphorus concentrations in excess of background or natural levels “have caused excessive growth of periphyton, phytoplankton, or aquatic microphyte communities in the rivers and streams” of the watershed “which impairs the aesthetics, fish and wildlife, and beneficial uses.”
The State of Oklahoma, via Attorney General Drummond and Oklahoma Secretary of Energy and Environment Jeff Starling in his capacity as the trustee for natural resources for the State of Oklahoma, have “satisfied their burden to show that conditions have not materially changed in the Illinois River watershed following trial,” Frizzell decreed.
“Phosphorus runoff from land-applied poultry waste continues to be a signif icant source of phosphorus which is causing actual and ongoing injury to the waters of the Illinois-River watershed,” the judge wrote. “Thus, circumstances have not ‘changed since the beginning of litigation that forestall any occasion for meaningful relief.’ … Accordingly, this matter is not prudentially moot.”