(CN) – Chickens aren’t the only creatures mucking up the water in Oklahoma, the 10th Circuit noted, rejecting the state’s bid to block farmers from scattering poultry waste on land in the Illinois River Watershed. The court said the state failed to pin the blame for bacterial contamination on large-scale poultry farmers such as Tyson Foods and Cargill Turkey.
The state objected to the use of “poultry litter,” which includes the birds’ bedding materials and feces, as field fertilizer. Poultry litter contains the bacteria E. coli, salmonella and campylobacter, all of which can lead to illness and even death in humans.
Industrial poultry farms are scattered throughout the Illinois River Watershed, a region of about 1 million acres spanning Arkansas and Oklahoma. A popular area for water recreation, the watershed also supplies drinking water for local residents.
Oklahoma filed suit under the Resource Conservation and Recovery Act (RCRA), seeking to enjoin Tyson from applying or allowing its feeders to apply poultry waste to any land within the watershed.
Tyson argued that the bacteria come from a variety of sources, including wildlife, cattle and humans. It added that its methods for storing and using the litter effectively killed any bacteria, because the waste was thoroughly dried before use and was applied to fields in thin layers, thus exposing bacteria to sunlight.
After hearing expert testimony from both sides, the district court concluded that Oklahoma failed to establish that “bacteria in the waters of the [watershed] are caused by application of poultry litter rather than by other sources, including cattle manure and human septic systems.”
The Denver-based federal appeals court agreed on a 2-1 vote.
“The district court, based on the evidence presented, simply could not establish a sufficient link between land-applied poultry litter and bacteria in the [watershed],” Judge Kelly wrote, “and therefore preliminary injunctive relief was not appropriate.”
In a partial dissent, Judge Ebel said the lower court had applied an overly strict legal standard in evaluating the state’s claims.
The state needed only to demonstrate a substantial risk of harm, not prove causation, Ebel argued.