TAHLEQUAH, Okla. – Litigants embroiled in a decades-long battle to protect the crown jewel of Oklahoma’s scenic rivers and streams entered 2025 with a new task.
Oklahoma Attorney General Genter Drummond must convince U.S. District Judge Gregory Frizzell there has been little, if any, improvement in water quality of streams within the Illinois River Watershed since 2010. His legal team also must show the business practices of poultry integrators continue to be a primary source of elevated phosphorus levels that jeopardize Oklahoma’s scenic rivers and streams.
A cadre of lawyers that represents 11 poultry integrators sued in 2005 by the state of Oklahoma contend conditions within the watershed have improved. They also maintain an upward trend in phosphorus levels that surfaced about six years ago can be traced to sources unrelated to poultry production.
All parties were to stake out positions relative to their interests on or before Jan. 31, when they were expected to offer proposed findings of competing facts and conclusions of law. Those documents, based on evidence presented during a six-day hearing in December, will be drafted to advance the competing interests of the parties.
Frizzell will draw from those documents any facts he deems necessary to update his factual findings and legal conclusions or render a final decision. Based on evidence presented during a 52-day trial that concluded in February 2010, Frizzell found the poultry integrators responsible for polluting the land and waters within the Illinois River watershed.
In a 219-page document published Jan. 18, 2023, the judge points to an overwhelming amount of evidence that shows defendants were aware of the environmental harm caused by the poultry industry’s business practices. Those business practices include the application of nutrient-rich waste generated by poultry growers to land within the watershed.
“Poultry waste generated by the operations of each of the defendants and their growers is a significant source of the phosphorus in the rivers and streams of the Oklahoma portion of the IRW and in Lake Tenkiller,” Frizzell writes in the document. “The State’s injuries from phosphorus concentrations in the rivers and streams of the IRW and Lake Tenkiller are significant.”
The defendant’s business practices, Frizzell concluded, “constitute a public nuisance” and an “actual and ongoing injury to the waters of the IRW.” The judge found the poultry integrators’ operations continue to cause “irreparable harm” that could be subject to injunctive relief.
Lawyers representing the poultry companies argue the evidence presented nearly 15 years ago at trial is stale and no longer reflects present conditions. That argument – one Frizzell rejected while denying defendants’ request to dismiss the case – prompted an order for an evidentiary hearing, which took place in December.
Drummond and his legal team presented witnesses – both expert and laymen. Testimony included statistical and observational evidence indicating any improvement of water quality within the IRW has been minimal.
Lance Phillips, an environmental programs manager with Oklahoma Water Resources Board, cited data that show phosphorus loadings and concentrations present an “ongoing threat” to the Illinois River and the Flint and Barren Fork creeks.
Shanon Philips, water quality division manager for Oklahoma Conservation Commission, testified about nonpoint sources of phosphorus within the watershed. A report of her expert testimony examines in-basin applications of poultry waste and litter exported for application outside the watershed.
“Nonpoint source contributions of phosphorus pollution in the Illinois River and Lake Tenkiller remain significantly higher than point sources, just as they were greater during the 2009-2010 trial,” Phillips states in her report. “Since that time, nonpoint source contributions have become an even greater percentage of the overall phosphorus loading to the IRW.”
Phillips said that fact remains despite investments totaling more than $56 million in programs designed to reduce phosphorus loading from nonpoint sources. Despite the success of similar programs in other watersheds, Phillips said legacy phosphorus that remains in soils due to past overapplication and ongoing application of poultry waste to land located within the IRW. Lawyers for poultry integrators acknowledged the continued impairment of water quality of IRW streams and rivers but cited other sources as culprits. Their witnesses cite rapid development of urban areas in upper reaches of the watershed as the most problematic.
Patrick Fisk, director of the Arkansas Department of Agriculture’s Livestock and Poultry Division, said less poultry waste is being applied within the IRW for two reasons. Litter is removed from houses less often, and when it is removed more of it is being shipped and applied outside the IRW.
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Dimitrios Vlassopoulos, and environmental scientist who testified on behalf of the poultry integrators, cited urban growth of areas in northwest Arkansas as a significant contributor of phosphorus in IRW streams and rivers. Since 2010, the area’s population has grown by 24 percent, and he said the number of people served by wastewater treatment plants that discharge into tributaries of the Illinois River has increased by 85 percent.
John Connolly, who testified for poultry integrators during the 2009-2010 trial and the evidentiary hearing in December, said he believes the most probable cause of phosphorous in the IRW is point-source discharges by municipal wastewater treatment plants. He cited a decrease in the amount of land-applied poultry waste within the basin and reports of lower phosphorous concentrations at some sampling locations during the past fifteen years.
Connolly’s assertion may be undermined by data compiled for a dozen wastewater treatment plants operating within the IRW. A document entered as evidence by joint stipulation agreed to by all parties shows those facilities discharged 36,418 tons of phosphorus in 2020 – roughly the same as the 36,308 tons discharged in 2010.
Katie Mendoza, a researcher at Texas A&M whose expert report was introduced as evidence by the state, helped create water quality models for the IRW. Her work shows past and present applications of poultry waste to land within the IRW are significant contributors of current phosphorus.
Mendoza estimates about 20 percent of the phosphorus from poultry waste remains in the soil after it is applied as fertilizer and consumed by vegetation. According to her report, the phosphorus that remains in the soil year after year increases the phosphorus loading in IRW streams and rivers by an average of 57 percent annually.
Overall, Mendoza said widely accepted and peer-reviewed models she uses show about 3.46 percent of total phosphorus loading in IRW streams and Lake Tenkiller can be traced to point sources. The remaining 96.54 percent of phosphorus loading in the IRW, she states, comes from nonpoint sources.
Gregory Scott, a soil scientist who testified for the state, said elevated phosphorus levels in the Illinois River and its tributaries “must start by stopping the deposition of additional phosphorus in the watershed.” The chert geology common throughout the watershed, he said, allows phosphorus from the soil to leach into “the upper ground flow of water” and ultimately “into the streams and rivers” of the IIRW.
“Phosphorus can also enter the waters of the IRW when soil containing phosphorus erodes and is mixed with water,” Scott notes in his report. “Fixing the water pollution problem must start by stopping the deposition of additional phosphorus in the watershed.”
Ed Fite, water quality manager for Grand River Dam Authority, kicked off testimony for the state during the evidentiary hearing in December. Fite has observed changes within the watershed in an official capacity since 1983, when he was appointed director of Oklahoma Scenic River Commission.
“The old gal is not well,” Fite said of the Illinois River during his testimony for the state. “She’s still impaired.”
John Elrod, a lawyer who represents Simmons Foods, pushed back against Fite’s comments. He produced an article published in 2016 that include Fite’s comments that appear to contradict his more recent observations.
Fite said his comments for one of the two articles referenced reductions of bacteria levels, not phosphorus. While phosphorus levels trended downward during the first few years after trial concluded, he said conditions have worsened since 2016, and he has become “more aware of the algal growth” that regularly coats the streambed “like astroturf.”
Nautical Adventures Scuba owner Tim Knight of Cookson said declining water quality of Lake Tenkiller forced him to change his business model. His company “ceased diving mid-lake about 15 years ago due to safety” after horizontal visibility was reduced from 25 feet or more to less than five feet.
“We had to change our diving courses,” Knight said. “We no longer have technical training.”
Julie Chambers, environmental program manager at Oklahoma Water Resources Board, said decreased water clarity at Lake Tenkiller continues “to adversely impact recreational activities and aesthetics.” The lake’s eutrophic state, she said, is “caused by phosphorus concentrations in the reservoir.”
Witnesses presented by both the state and the poultry integrators ultimately acknowledged the water quality of IRW streams, rivers and lake remains impaired. There also was agreement about the validity of the 0.037 mg/L phosphorus standard set for Oklahoma’s scenic rivers and streams and the ongoing exceedance of that standard at the state line.
The parties may disagree about the source of elevated phosphorus levels. And that disagreement likely will be resolved only by a final court order – something most everyone agrees will trigger appeals of the decision.
The appellate process will further delay any meaningful change required for water-quality improvements in the Illinois River and its tributaries. Improvements also could be delayed by political pressure.
Oklahoma Secretary of Energy and the Environment Jeff Starling, who was appointed by Gov. Kevin Stitt in December, told Oklahoma Farm Report the lawsuit would best be seen in the rear-view mirror. As a named plaintiff in the case, the secretary said he believes the “it’s a matter of fundamental unfairness to have a lawsuit hanging over companies for 20 years.”
Stitt dismissed Starling’s predecessor, Ken McQueen, after learning about his attendance during the evidentiary hearing in December. Both men assumed the role of plaintiff by virtue of their appointments by the governor as his energy and environment secretaries.