A nod appears to be as good as a wink for state legislators who have all but given carte blanche to poultry producers when it comes to protecting — or not — the state’s clean water, scenic rivers and Lake Tenkiller from poultry waste.

The Oklahoma House of Representatives on Monday overwhelmingly passed House Bill 4118, which shields poultry producers from liability — past, present and future — when they engage in good-faith efforts to avoid water pollution. Rep. Jim Olsen, R-Roland, was among those legislators who approved the bill.

The bill, which now heads to the Senate, obfuscates the absolute prohibition against polluting state waters, placing the onus on producers to engage in best-practices efforts, and minimizes the consequences for failure to do so.

The legislation replaces “there shall be no discharge of poultry waste to waters of the state” with “when developing Nutrient Management Plans Each Nutrient Management Plan shall contain measures designed to prevent the discharge of poultry waste to waters of the state.”

If the plan doesn’t work, any penalties are more symbolic than compensatory.

As the House shepherded the bill through the legislative process, the Save the Illinois River (STIR) organization rallied its members to petition state representatives and state senators to defeat the bill.

The not-for-profit association chartered exclusively for the preservation of the Illinois River, Flint Creek, Barren Fork Creek, Lake Tenkiller and their tributaries implored its members “to look closely and wisely at this bill, as it appears to step backwards from the meager protections from poultry waste which we now have.”

STIR believes the bill “will not help meet our mission to protect, preserve and restore the Illinois River, its tributaries, its aquifers and Lake Tenkiller.”

The bill, by Rep. David Hardin, R-Stilwell, greatly reduces poultry producer liability, including past transgressions.

Because of the consequences to northeastern Oklahoma, water conservationists are alarmed by the jeopardy the bill places on drinking water from watersheds impacted by poultry operations.

With lax oversight and weak penalties, the bill all but provides immunity for producers from poultry-related pollution responsibility.

More than a year ago, poultry companies were found liable for polluting the 25,000-squaremile, two-state Illinois River Watershed. Then in January, those same companies, including processing giant Tyson Foods, filed a motion to get the judgment dismissed. How the bill might influence the poultry producers’ responsibility is unknown.

While poultry companies would like to avoid any culpability for increased levels of nitrogen, phosphorus and even E. Coli in waterways within the watershed, the state wants accountability — and continued stringent pollution controls.

The state first began its pursuit of reform and resolution 23 years ago, but stall tactics and litigious delays by the poultry industry and its allies may have paid dividends with the impending passage of the bill.

How it all started

While chicken farms in northeastern Oklahoma and northwestern Arkansas are not new to the watershed area, raising poultry flourished in the 1990s into the 2000s, thanks to burgeoning production contracts between local farms and companies like Tyson Foods and Simmons Foods.

But the increased chicken population and newfound profits came at a cost: Lots and lots of chicken litter produced on the farms and used by area crop farmers as fertilizer, creating pollutants that seep into the groundwater.

That’s when residents near Lake Tenkiller and the Illinois River started noticing the once-clear waters were no longer so clear.

Importantly, those scenic waterways are the source for numerous utility companies providing drinking water to the area. But runoff from chicken farms was believed to increase pollution, which increased water treatment costs.

The same pollution has occurred for homes with groundwater wells.

That’s when Oklahoma Attorney General Drew Edmondson launched the state’s push in 2001 to reduce water pollution and hold the growing poultry industry accountable.

But negotiations were laborious and fruitless. Early talks included mostly disingenuous settlement proposals by poultry companies the state could not reasonably accept.

Meanwhile, the growing pollution problem continued toward an irreversible tipping point, despite Edmondson’s urgent calls to preserve clean water.

And the problem has not gotten any better. The state chicken population has more than doubled to more than 200 million, according to the Oklahoma Department of Agriculture.

By 2004, Tyson Foods had submitted a settlement offer characterized as addressing the state’s concerns about phosphorus, but the companies were still unwilling to accept the state’s terms regarding waste management.

While a subsequent settlement proposal by Tyson agreed to cap phosphorus levels in fertilizer application, the amount was still almost twice as high as the peracre requirement the state would accept.

Just as important in the early negotiations was the financial compensation the state expected from the companies in fines and lake restoration costs (calculated in 2002 at $23.3 million) along with rehabilitation of scenic river watersheds (projected at about $70 million).

The court of public opinion With Edmondson and poultry companies negotiating, Oklahoma Farm Bureau, the state’s largest agriculture lobbying organization, wanted to be included in the fray.

When Edmondson, a Democrat, said no, OFB turned to the court of public opinion, running commercials and ads criticizing the state’s pursuits against the poultry industry, and claiming any agreement would negatively impact the livelihood of local chicken farmers. In addition, supporters were urged to air their grievances with state legislators and the state attorney general’s office.

The Oklahoma Farm Bureau, which receives financial support from poultry companies, perpetuated claims that Edmondson was targeting small operations rather than the large poultry corporations. In addition, the OFB likened the fate of poultry farmers to that of the 1990s’ tobacco industry, which settled for billions of dollars in state lawsuits, characterizing Edmondson as a money-grubber and political opportunist.

While phosphorus rates have declined in some parts of the Illinois River Watershed during the past 20 years, a report by Save the Illinois River showed rates at more than twice the state’s limit for scenic rivers.

Litter ‘is a major contributor’

The district court judge’s ruling said the state had established its case regarding excess phosphorus in watershed waters, which is alleged to have leached into nearby streams due to over application of fertilizer on lands within the 1 million-acre watershed, usually in close proximity to poultry farms. The judge found compelling the state’s allegation that poultry waste generated by poultry farmers was the source of the phosphorus, and that the environmental damage to watershed waters was inextricably tied to poultry litter.

In his ruling, the judge wrote “it is clear that poultry waste is a major contributor to the levels of phosphorus in the water of the [watershed],” and that the poultry companies “have done little — if anything — to provide for or ensure appropriate handling or management of the poultry waste generated by their birds at their growers houses.”

Defendants include Tyson Foods, Tyson Poultry, Tyson Chicken, Cobb-Vantress, Cal-Maine Foods, Cargill, Cargill Turkey Production, George’s, George’s Farms, Peterson Farms and Simmons Foods.

The state also wants poultry companies to remediate the watershed, to pay to investigate remedial actions regarding the effects of poultry litter application and to pay for implementing remedial actions.