Attorney General of the State of Oklahoma et al v. Tyson Foods, Inc. et al

Filing 2979

FINDINGS OF FACT AND CONCLUSIONS OF LAW by Judge Gregory K Frizzell , setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 3/17/2023) (lah, Chambers)

Case 4:05-cv-00329-GKF-SH Document 2979 Filed in USDC ND/OK on 01/18/23 Page 1 of 219

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
STATE OF OKLAHOMA, ex rel. GENTNER
DRUMMOND, in his capacity as Attorney
General of the State of Oklahoma and
OKLAHOMA SECRETARY OF ENERGY
AND ENVIRONMENT KEN McQUEEN,
in his capacity as the TRUSTEE FOR
NATURAL RESOURCES FOR THE
STATE OF OKLAHOMA,*
Plaintiffs,
v.
TYSON FOODS, INC.,
TYSON POULTRY, INC.,
TYSON CHICKEN, INC.,
COBB-VANTRESS, INC.,
CAL-MAINE FOODS, INC.,
CARGILL, INC.,
CARGILL TURKEY PRODUCTION, LLC,
GEORGE’S, INC.,
GEORGE’S FARMS, INC.,
PETERSON FARMS, INC., and
SIMMONS FOODS, INC.,
Defendants.

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Case No. 05-CV-329-GKF-SH

FINDINGS OF FACT AND CONCLUSIONS OF LAW

DATED: January 18, 2023

_______________________
* Pursuant to Fed. R. Civ. P. 25(d), Oklahoma’s current Attorney General and current Secretary of
Energy and Environment are substituted as relators.

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TABLE OF CONTENTS
FINDINGS OF FACT AND CONCLUSIONS OF LAW .............................................................. 1
I.

Overview and History of the Case ...................................................................................... 1

II.

Findings of Fact .................................................................................................................. 6
A.

Geology and Soils of the IRW ............................................................................................ 6

B.

Historical Aesthetic Quality of IRW Waters ...................................................................... 9

C.

Land Uses in the IRW ....................................................................................................... 10

D.

Regulation of the Waters of the IRW ............................................................................... 12
1.

Water Quality Standards ......................................................................................... 13

2.

Antidegradation Standards ...................................................................................... 17

3.

Designated Beneficial Uses of Waters in the IRW ................................................. 18

4.

Total Maximum Daily Load ................................................................................... 19

E.

Phosphorus in the IRW ..................................................................................................... 22

F.

State Regulation of Poultry Litter ..................................................................................... 23
1.

2.

Oklahoma ................................................................................................................ 23
a.

Phosphorus Standards in Oklahoma ............................................................... 26

b.

Compliance ..................................................................................................... 31

Arkansas Laws and Regulations Governing Land Application of Litter ................ 34

G.

Uses of the Waters of the IRW ......................................................................................... 38

H.

Condition of the Waters of the IRW in Oklahoma ........................................................... 39
1.

Rivers and Streams ................................................................................................. 39
a.

High Phosphorus Levels and Algae ................................................................ 39

b.

Phosphorus-Induced Algae Biomass and its Consequences ........................... 45
(1) Aesthetics .................................................................................................. 45
(2) Dissolved Oxygen Concentrations .......................................................... 47
(3) pH ............................................................................................................ 49
(4) Aquatic Habitat........................................................................................ 49
(5) Disinfection Byproducts .......................................................................... 50
(6) Personal Observation ............................................................................... 53

c.
2.

Summary ......................................................................................................... 53

Lake Tenkiller ......................................................................................................... 55
a.

Trophic State ................................................................................................... 55

b.

Phosphorus ...................................................................................................... 60
i

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3.

I.

J.

K.

L.

c.

Blue-Green Algae ........................................................................................... 62

d.

Chlorophyll ..................................................................................................... 62

e.

Transparency ................................................................................................... 63

f.

AHOD ............................................................................................................. 64

g.

Dissolved Oxygen ........................................................................................... 64

h.

Dr. Cooke’s Conclusions ................................................................................ 64

i.

Government Studies ........................................................................................ 65

j.

Defendants’ Response ..................................................................................... 65

Consequences of Phosporus-Induced Eutrophic Condition of Lake Tenkiller ....... 66
a.

Aesthetics ........................................................................................................ 66

b.

Aquatic Habitat ............................................................................................... 67

c.

Water Quality .................................................................................................. 71

d.

Summary ......................................................................................................... 71

Sources of High Phosphorus Loading to the Waters of the IRW ..................................... 73
1.

Point Sources .......................................................................................................... 74

2.

Nonpoint Sources .................................................................................................... 74

3.

Relative Loading of Phosphorus in the IRW Between Point
and Nonpoint Sources ............................................................................................ 75

4.

Relative Environmental Impacts of Point Source/Nonpoint Source Phosphorus
Loading ................................................................................................................... 78

5.

Summary of Findings .............................................................................................. 82

Overview of the Poultry Industry in the IRW ................................................................... 82
1.

Structure of Poultry Industry in the IRW ................................................................ 84

2.

Characteristics, Concentration and Locations of Operations in the IRW ............... 88

3.

Summary ................................................................................................................. 89

Poultry Waste .................................................................................................................... 89
1.

Constituents of Poultry Waste ................................................................................ 89

2.

Constituents of Poultry Excrement ......................................................................... 90

3.

Amounts .................................................................................................................. 94

4.

Summary ................................................................................................................. 96

Poultry Waste Land Application ....................................................................................... 96
1.

Manner .................................................................................................................... 96

2.

Location .................................................................................................................. 97

3.

Behavior of Phosphorus in the Soil and STPs ........................................................ 97

ii

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4.

Balance/Over-Application ...................................................................................... 99

5.

Summary ............................................................................................................... 103

M. Land-Applied Poultry Waste as a Source of High P Loading in the IRW ..................... 103
1.

Government Reports ............................................................................................. 104

2.

Mass of Poultry Waste Generated/Method of Disposal ........................................ 106

3.

Phosphorus Loading from Nonpoint Sources ....................................................... 107

4.

Mass Balance Analysis ......................................................................................... 108

5.

Geology of the IRW .............................................................................................. 114

6.

Chemical Ratio Analysis....................................................................................... 115

7.

Pathway Concentration Analysis .......................................................................... 125
a.

Leachate Test ................................................................................................ 125

b.

Design, Methodology and Results ................................................................ 127

c.

Olsen’s Conclusion ....................................................................................... 129

d.

Defendants’ Critique ..................................................................................... 130

e.

Weight Accorded to Pathway Concentration Analysis ................................. 131

8.

Geochronological Sediment Analysis ................................................................... 131

9.

Poultry House Density Analyses ......................................................................... 136

10.

a.

Dr. Engel’s Analysis ..................................................................................... 136

b.

Dr. Stevenson’s Analysis .............................................................................. 139

c.

Defendants’ Critique of Poultry House Density Studies .............................. 141

Modeling Analysis ................................................................................................ 144
Defendants’ Critique ..................................................................................... 151

11.

Upstream – Downstream Sampling ...................................................................... 157

12.

Direct Observation ................................................................................................ 158

13.

Defendants’ Expert ............................................................................................... 158

14.

Defendants’ Admissions ....................................................................................... 159

15.

Phosphorus from Land-Applied Poultry Waste Ends Up in the Waters
of the IRW ............................................................................................................ 162

16.

Phosphorus Concentrations in Other Watersheds ................................................. 163

N.

Phosphorus in Runoff from Land-Applied Poultry Waste is a Significant Source of
Phosphorus Causing Injury to IRW Waters .................................................................... 164

O.

Defendants’ Awareness that Phosphorus from Land-Applied Poultry Waste is
Contributing to Water Pollution in the IRW ................................................................... 165

P.

Other Contributors to Phosphorus Loading to the Waters of the IRW ........................... 172
1.

Point Sources (Waste Water Treatment Plants) .................................................... 172
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2.

Urban Runoff ........................................................................................................ 172

3.

Commercial Fertilizers.......................................................................................... 172

4.

Cattle ..................................................................................................................... 172

5.

Streambank Erosion .............................................................................................. 174

6.

Roads..................................................................................................................... 175

7.

Septic Systems ...................................................................................................... 175

8.

Nurseries ............................................................................................................... 176

9.

Golf Courses ......................................................................................................... 176

10.

Gravel Mining ....................................................................................................... 176

11.

Human Recreational Activity ............................................................................... 177

12.

State Conduct ........................................................................................................ 177

13.

Summary ............................................................................................................... 177

Q.

Efforts by the State of Oklahoma to Address Phosphorus Loading in the IRW............. 178

R.

Remediation ................................................................................................................... 179

III.

Conclusions of Law ........................................................................................................ 180

A.

Standing .......................................................................................................................... 180

B.

Causation/Liability Issues ............................................................................................... 182

C.

1.

Liability for Litter Spread by Growers ................................................................. 182

2.

Concurrent Tortfeasor Liability ............................................................................ 184

3.

Direct/Circumstantial Evidence ............................................................................ 186

Nuisance Claims ............................................................................................................. 187
1.

Statutory Public Nuisance ..................................................................................... 187

2.

Federal Common Law Nuisance ........................................................................... 191

3.

Analysis of Nuisance Claims ................................................................................ 195

D.

Trespass Claim ................................................................................................................ 196

E.

Statutory Violation Claims ............................................................................................. 199

F.

Affirmative Defenses ...................................................................................................... 204

G.

Injunctive Relief.............................................................................................................. 208
Irreparable Harm ................................................................................................... 212

IV.

Conclusion ...................................................................................................................... 213

iv

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FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Illinois River runs 145 miles from East to West through the Ozarks of Northwest
Arkansas and Northeast Oklahoma. In the 1970s, the Oklahoma Legislature found the Illinois
River and its tributaries “possess[ed] such unique natural scenic beauty, water, fish, wildlife and
outdoor recreational values of present and future benefit to the people of the state” that it
designated most of the Illinois River and two of its tributaries as Scenic Rivers. 82 Okla. Stat.
§ 896.5. As late as the 1960s, its waters were crystal clear. But that is no longer the case. The
river is polluted with phosphorus, with adverse consequences that include low dissolved oxygen;
abundant filamentous green algae; blue-green algae in Lake Tenkiller near the river’s terminus;
greatly decreased transparency; and significant detrimental impacts on the numbers and species of
fish. The State has established that hundreds of thousands of tons of poultry litter generated by
defendants’ chickens and turkeys are spread onto the lands of the Illinois River Watershed (IRW)
each year. The State further established that a significant cause of the excess phosphorus in the
waters of the IRW is the land application of litter from defendants’ poultry.
I. Overview and History of the Case
The State of Oklahoma brought this case against eleven defendants: Tyson Foods, Inc.;
Tyson Poultry, Inc.; Tyson Chicken, Inc.; Cobb-Vantress, Inc.; Cal-Maine Foods, Inc.; Cargill,
Inc.; Cargill Turkey Production, LLC; George’s, Inc.; George’s Farms, Inc.; Peterson Farms, Inc.;
and Simmons Foods, Inc.1 The State alleges that the defendants have polluted and continue to

1

Tyson Foods, Inc., Tyson Chicken, Inc., and Tyson Poultry, Inc. are Delaware corporations
headquartered in Springdale, Arkansas, with operations in the IRW. [Doc. 1238 at 3, ¶¶6-7; Ct. Ex. 4,
Hudson Dep., at 28:24-29:2]. Cobb-Vantress, Inc. is a Delaware corporation headquartered in Siloam
Springs, Arkansas, with operations in the IRW. [Doc. 1238 at 4, ¶9]. Cal-Maine Foods, Inc. is a Delaware
corporation headquartered in Jackson, Mississippi. Cal-Maine, which is in the business of producing shell
eggs for market, has not had any production in the IRW since January 2005. [TR at 4412:7-10; OK Ex.
6082]. Cargill, Inc. is a Delaware corporation with its principal place of business in Minnesota. [Doc.

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pollute the waters of the IRW with phosphorus and bacteria from the waste generated from
defendants’ poultry and applied to lands in the IRW. [Doc. 2641, p. 2 (Pretrial Order)].
The State asserted ten causes of action in its First Amended Complaint: 1) cost recovery
under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA);
2) natural resource damages under CERCLA; 3) a Solid Waste Disposal Act (SWDA) citizen suit;
4) state law nuisance (including nuisance per se); 5) federal common law nuisance; 6) trespass; 7)
violation of 27A Okla. Stat. § 2-6-105 and 2 Okla. Stat. § 2-18.1; 8) violation of 2 Okla. Stat.
§ 10-9.7 and Oklahoma Administrative Code (OAC) § 35:17-5-5; 9) violation of OAC
§ 35:17-3-14; and 10) unjust enrichment/restitution/disgorgement. [Doc. 18].
Defendants filed motions to dismiss various counts of the First Amended Complaint, as
well as answers denying the remainder of the State’s allegations. [See Docs. 64-67, 75]. While
those motions were pending, the State of Arkansas petitioned the United States Supreme Court
seeking leave to file a bill of complaint to enjoin the lawsuit. Following the Supreme Court’s
denial of the petition, the State of Arkansas moved to intervene in this action. That motion was
denied. [Doc. 1141].
1240 at 5, Cargill Answer to Sec. Am. Compl.]. Cargill transferred its turkey business in the IRW to
Cargill Turkey Production, LLC, a wholly-owned subsidiary, in 2004, and currently has no contracts with
any poultry growers in the IRW. [TR at 4849:13-15 (Alsup)]. Cargill Turkey Production, LLC (“CTP”) is
a Delaware corporation. [Doc. 1241, CTP Answer to Sec. Am. Compl., at 5]. CTP processes turkey under
the brand name Honeysuckle White, among others. [TR at 4896:5-10]. George’s, Inc. is an Arkansas
corporation that contracts with 27 independent growers in the IRW, three of which are located in Oklahoma
and 24 of which are located in Arkansas. [TR at 3026:6-9 (M. Henderson)]. George’s also owns one farm
in the Arkansas portion of the IRW, and it operates nine other farms, which it leases but does not own, that
are located in the Arkansas portion of the IRW. [TR at 3024:16-3026:5 (M. Henderson)]. George’s Farms,
Inc., is a wholly owned subsidiary of George’s, Inc. Peterson Farms, Inc. is an Arkansas corporation. [TR
at 4841:14-4842:3 (Houtchens)]. All of Peterson’s operational assets were located in Decatur, Arkansas,
which is outside the boundaries of the IRW. [TR at 4841:14-4842:3 (Houtchens)]. Peterson has no
continuing relationship with poultry operations in the IRW, having sold its broiler production business to
Simmons Foods in July 2008. Most of its contract growers in the IRW signed contracts with Simmons
Foods [OK Ex. 0827 at 2; TR at 4786:1-4787:13 (Houtchens)]. Simmons Foods, Inc. is a family owned and
operated Arkansas corporation with its headquarters in Siloam Springs, Arkansas. [TR at 4119:9-15;
4119:25-4120:8; 4121:23-25].

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Meanwhile, defendants filed two third-party complaints naming over one hundred sixty
individuals, entities and municipalities for contribution and indemnity due to their activities
causing the release of phosphorous and hazardous substances into the Illinois River. [Doc. 80,
82]. The State moved to sever or stay the proceedings with respect to the thirdparty complaints and the court granted the motion.
At hearings on the motions to dismiss, the court dismissed the State’s claim under 27A
Okla. Stat. § 2-6-105 to the extent the State sought to affix liability for conduct occurring in
Arkansas. [Docs. 1187, 1206]. The court also dismissed the trespass claim, but granted leave to
re-plead. The State then filed a Second Amended Complaint [Doc. 1215] re-pleading the trespass
claim. Defendants filed a motion to dismiss the re-pled claim, and the court denied the motion.
The State then filed a motion for preliminary injunction under the Resource Conservation
and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B), asserting that fecal bacteria from the
disposal of poultry waste generated by defendants’ birds was causing an imminent and substantial
endangerment to human health. Following an eight-day evidentiary hearing, the court denied the
motion, finding in part:
The evidence produced to this Court reflects that fecal bacteria in
the waters of the IRW come from a number of sources, including
cattle manure and human waste from growing numbers of human
septic systems in that area’s karst topography. The record reflects
levels of fecal bacteria at similar levels in rivers and streams
throughout the State of Oklahoma, including waterways in whose
watersheds the record does not evidence similar application of
poultry waste. At this [stage of] the action, the State has failed to
meet the applicable standard of showing that the bacteria levels in
the IRW can be traced to the application of poultry litter.
Oklahoma v. Tyson Foods, Inc., 2008 WL 4453098, at *4 (N.D. Okla. Sept. 29, 2008). The State
appealed to the Tenth Circuit, and the Circuit affirmed the order denying preliminary injunctive
relief. Oklahoma v. Tyson Foods, Inc., 565 F.3d 769 (10th Cir. 2009).

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Defendant poultry companies moved to dismiss the State’s claims for damages on the
ground that the Cherokee Nation was a required party that had not been joined. The State argued
that the Nation was not a required party but had negotiated an agreement in which the Nation
purportedly assigned the State its interests in the litigation. The court ruled that the agreement was
invalid and granted the defendants’ motion, restricting the State to injunctive and other equitable
relief. In doing so, the court dismissed the State’s CERCLA claims, its claim for unjust
enrichment and its claims for damages under Oklahoma’s laws of nuisance and trespass, and under
the federal common law of nuisance. Oklahoma v. Tyson Foods, Inc., 258 F.R.D. 472 (N.D. Okla.
2009).
Nineteen days before trial, the Cherokee Nation sought to intervene. This court denied the
motion as untimely. The Cherokee Nation appealed, and the Tenth Circuit affirmed. Oklahoma v.
Tyson Foods, Inc., 619 F.3d 1223 (10th Cir. 2010).
The State seeks equitable relief against the defendant poultry companies on the following
claims set forth in the Final Pretrial Order:
1. violation of RCRA, 42 U.S.C. § 6972;
2. state law public nuisance and state law nuisance per se;
3. federal common law nuisance;
4. trespass; and
5. violations of 27A Okla. Stat. § 2-6-105 (Pollution of state air, land or waters – Order to
cease) and 2 Okla. Stat. § 2-18.1 (Pollution of air, land, or waters – Order to cease –
Administrative penalty).
[Doc. 2641, Pretrial Order at 2]. With respect to the RCRA, nuisance, trespass and 2 Okla. Stat.
§ 2-18.1 claims, the State seeks injunctive/equitable relief, including but not limited to abatement,
remediation, and costs associated with quantifying the amount of remediation. With respect to the

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27A Okla. Stat. § 2-6-105 claim, the State seeks both injunctive relief and civil penalties, as well
as attorney fees and costs associated with the recovery of civil penalties.
Defendants have asserted numerous affirmative defenses, including that the State lacks
standing to pursue the claims at issue; that the claims are preempted by federal law and the
Arkansas River Basin Compact; and that the relief sought violates defendants’ due process rights
as well as the Commerce Clause of the Constitution and principles of comity and federalism.
They assert the claims are barred by the doctrines of license and consent; that they are not liable
for acts of their poultry growers; and that they—at all times relevant to this action, have obeyed all
laws and regulations. [Doc. 2641, Pretrial Order at 3-4].
The parties tried the case to the court for 52 days over the course of five months, resulting
in a trial transcript of 11,889 pages and 8,392 pages of admitted exhibits. After the State rested,
the defendants moved for judgment on partial findings under Federal Rule of Civil Procedure
52(c). The court heard extensive argument on these motions from all parties over the course of
three days, then granted defendants’ motions in part and denied them in part. See Oklahoma v.
Tyson Foods, Inc., 2010 WL 653032 (N.D. Okla. Feb. 17, 2010). First, the court granted the
motions with respect to the State’s nuisance per se claim. Under Oklahoma law, a nuisance per se
is “an act, occupation or structure which is a nuisance at all times and under any circumstances,
regardless of location or surroundings.” Sharp v. 251st St. Landfill, Inc., 810 P.2d 1270, 1276 n.6
(Okla. 1991), overruled on other grounds by DuLaney v. Okla. State Dep’t of Health, 868 P.2d
676, 678-79 (Okla. 1993). In this case, the State failed to demonstrate that the land application of
poultry litter in the IRW is “a nuisance at all times and under any circumstances, regardless of
location or surroundings.” Expert testimony established that poultry litter may properly be used as
a fertilizer within the IRW under certain circumstances and with certain limitations, and the State

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itself permits land application of poultry litter under those circumstances. Tyson Foods, Inc., 2010
WL 653032, at *3-5. Second, the court granted the motions with respect to the State’s claim of
bacterial pollution because the State’s evidence was insufficient to prove: (a) that land application
of poultry litter has caused bacterial pollution of the IRW’s waters; or (b) that bacteria from
poultry litter poses a risk to human health or the environment in the IRW. However, the court
expressly excluded from that ruling the State’s allegations and evidence relating to blue-green
algae (sometimes referred to as cyanobacteria). Id. at *6-7. Third, the court granted defendants’
motions with respect to the State’s RCRA claim because, if properly applied, poultry litter can be
beneficially used as a fertilizer and soil amendment, because poultry litter has a market value, and
because the State had failed to prove that poultry litter was applied within the IRW for the sole
purpose of discarding it. Id. at *8-11 The court denied the defendants’ Rule 52(c) motions in all
other respects.
Pursuant to Fed. R. Civ. P. 52(a)(1), the court enters the following Findings of Fact and
Conclusions of Law with respect to the State’s remaining claims.
II. Findings of Fact
A. Geology and Soils of the IRW
1.

The IRW, which is comprised of slightly over one million acres, straddles northeastern

Oklahoma and northwestern Arkansas. [OK Ex. 3351 at OSU0005147]. Slightly more than half of
the watershed—approximately 576,030 acres—is located in Oklahoma. [Id.]. The IRW is located
within the western flank of the Ozark uplift, a large structural dome that centers in southeastern
Missouri. [TR at 1594:23-1595:2 (Fisher); OK Ex. 3351 at OSU0005148]. The Springfield
Plateau, which occupies the northern two-thirds of the IRW, consists of gently undulating to
steeply rolling topography. [OK Ex. 3351 at OSU0005148]. The Boston Mountains, the highest

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of the plateaus in the Ozarks, form the southern portion of the IRW. Local relief in some places
exceeds 1,500 feet, and the southern portion is characterized by greater slopes and overall
ruggedness. [OK Ex. 3351 at OSU0005155]. There is very little flat land in the IRW. [TR at
1598:3-7 (Fisher)].
2.

This topography determines the hydrology of the IRW. [TR 1594:2-3 (Fisher)]. Waters

that fall in the IRW travel, in general, from the northeast to the southwest. [TR at 1594:17-22
(Fisher)]. The major drainage features of the IRW include the Illinois River, which arises in the
eastern part of the IRW and flows into Lake Tenkiller in the southwestern part of the IRW; Caney
Creek, which arises near the Oklahoma-Arkansas border near Stilwell, Oklahoma, and flows east
to west into the Illinois River near Lake Tenkiller; Barren Fork (a.k.a. Baron Fork) River, which
arises in Arkansas and flows generally east to west into the Illinois River near Lake Tenkiller; and
Flint Creek, which arises in the northeastern portion of the IRW and flows into the Illinois River
in Oklahoma near the Oklahoma-Arkansas border. [TR at 1601:24-1602:3; 1603:2-8; 1603:211604.21 (Fisher); OK Ex. 2519]. Lake Tenkiller, a run-of-the-river reservoir, was created in 1954
by the impoundment of the Illinois River. [TR at 1678:25-1679:1, 2136:24-2136:25 (Fisher)]. As
a watershed, the IRW is a single, interconnected hydrologic unit. [TR at 5954:18-5957:3
(Chaubey)].
3.

The primary surface drainage channels in the IRW are a result of the underlying

geological structure—faults in the underlying limestone that are the consequence of the Ozark
uplift. [TR at 1604:25-1605:11 (Fisher)]. The primary pathways for groundwater flow are along
smaller fractures and joints and along bedding planes in the underlying limestone. [TR at
1605:12-21 (Fisher)]. Since limestones are fairly brittle, the underlying geology in the IRW is
broken “much like a china cup.” [TR at 1605:14-16 (Fisher)]. Because of the fractured limestone,

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rainfall percolates readily through the soil and into groundwater. Moreover, because of the
limestone fractures and karst topography (formed by the dissolution of soluble rocks such as
limestone and characterized by underground drainage systems), groundwater moves relatively
rapidly in the IRW. [TR at 1604:25-1606:11 (Fisher); OK Ex. 3312]. As a result of these
underground conduits, surface water and groundwater in the IRW are “fairly closely linked.” [TR
at 1606:14-21 (Fisher)].
4.

Under base flow conditions (times when there has not been significant precipitation),

rivers and streams in the IRW are fed primarily from alluvial groundwater. [TR at 5528:8-12;
5530:4-10; 5369:2-3 (Olsen)]. The alluvium—the soil area adjacent and contiguous to the rivers
and streams—is recharged by surface water in rivers and streams during high flow events; once
the river or stream level drops, the water from the recharged alluvium drains back into the river or
stream. [TR at 5778:11-18 (Engel); TR at 2071:1-16 (Fisher)].
5.

The IRW is a region of “mantled karst”—fractured limestone overlain by a mantle of

weathered material. [TR at 1608:11-25 (Fisher)]. This mantled karst is a critical geological
feature that plays a major role in the hydrology of the IRW. The limestone is calcium carbonate
and very soluble. [OK Ex. 3351 at OSU0005155]. Groundwater has formed networks of
underground drainage channels in the limestone. Over time, bedding planes, joints and faults in
the limestone have been enlarged by dissolution of the limestone, and sinkholes, caves and
fissures are common. [OK Ex. 3351 at OSU0005155; TR at 1608:18-25; 1619: 23-1620:13
(Fisher); OK Ex. 6923-STOK0033387; TR at 944:15-20 (Fite)]. A substantial amount of water
can, and does, pass through the mantled karst. [TR at 1620:3-5 (Fisher)].
6.

The weathered mantle overlying the limestone is a residual soil formed by in-place

weathering and dissolution of the limestone. [TR at 1609:8-10 (Fisher)]. It is a rocky cobble,

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generally with chert gravels and boulders in it, covered by a very thin layer of organic soil. [TR at
1609:10-15 (Fisher); OK Ex. 6923 at STOK0039169, STOK0047621].
7.

The soils in the Oklahoma portion of the IRW are “marginal, at best,” so it’s difficult to

grow row crops. [TR at 920:2-6 (Fite)]. The record reflects that bermuda grass and fescue are the
most common crops. In their natural state, the soils of the IRW are not high in nutrients. [TR at
1527:4-7 (Phillips)].
8.

The record reflects that the natural background level of phosphorus in the soils of the

IRW (soil test phosphorous, or “STP”) is less than 65 lbs/acre.
B. Historical Aesthetic Quality of IRW Waters
9.

The beauty of the waters of the IRW has long been recognized. For example, an 1867

report described the Illinois River as “a wide, clear, rapid, pebbly, ever-running stream,” and
stated, “[i]t is impossible in this brief Report to recount the riches, resources, and loveliness of this
river. . .” [OK Ex. 3100]. An 1870 report to the President from the Secretary of the Interior’s
Board of Indian Commissioners described the Illinois River as “one of the prettiest rivers on the
continent, sparkling with crystal waters.” [OK Ex. 3121 at OK0003528.] A 1952 report stated:
Any description of the Illinois River should properly be filled with glowing
adjectives and loaded with phrases of superlative beauty. For the “Illinois” is a
clear, spring-fed stream, flowing through the oak and hickory clad Ozark hills in a
succession of sparkling riffles and long, quiet pools, that inspires cries of
“Eureka!!” when first viewed by people from the short grass country.
[OK Ex. 3089]. An April 16, 1961, article described the Illinois River as “a sparkling spring-fed
masterpiece of nature” with “a succession of alternating deep pools and swift shallows flowing
over beds of gravel.” [OK Ex. 3116 at OK0003578]. A 1992 report stated, “[t]he Illinois River is
cherished for its beauty.” [OK Ex. 3351 at OSU005174]. A 1999 report described the river as
“unquestionably one of Oklahoma’s outstanding natural resources.” [DJX0147-0004]. Similarly,

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witnesses for the State testified about the historical clarity of the Illinois River. [TR at
669:12-672:2 (Fite in the early 1960’s); TR 610:2-11 (Hilsher in the mid-1970’s); 978:11-980:11
(Phillips)]. Lake Tenkiller, too, was once known for its clear water and beauty. [OK Ex. 3106 at
OK0003576 (1956); OK Ex. 3113 at p. 458; OK Ex. 5593A at p. 537; TR at 978:24-979:12
(Phillips)].
C. Land Uses in the IRW
10.

The IRW is predominantly a rural watershed. [TR at 1623:25 (Fisher); OK Ex. 2491].

According to the United States Geological Survey (“USGS”), “[t]he basin is dominated by about
equal proportions of agricultural (pasture and cropland) and forest land uses and is interspersed
with minor amounts of commercial and residential land uses.” [OK Ex. 5862 at p. 4]. The IRW is
comprised of 45 percent grassland, 44 percent forest land, two percent cropland, one percent
orchards and vineyards, six percent urban areas, and two percent “other land use,” including
confined animal feeding operations (CAFOs), roads and railroads and water. [OK Ex. 3351 at
OSU0005156].
11.

The easternmost portion of the IRW is the site of one of the fastest-growing urban areas

in the United States (Fayetteville-Springdale-Rogers, Arkansas). [OK Ex. 5862 at p. 4; TR at
10091:2-11 (Grip)]. The human population of the IRW at the time of trial was approximately
340,000. [TR at 1624:14-18 (Fisher)]. In 2000, it was approximately 280,000. [TR at
1624:14-15 (Fisher)]. Most of the population growth has occurred in urban areas. [TR at
1538:24-1539:4 (Phillips)]. Most of the waste from the urban population growth is treated at
wastewater treatment plants (“WWTPs”). [TR at 1539:5-8 (Phillips)].
12.

A significant amount of the IRW’s pastureland, located primarily in the upstream portion

of the IRW in Arkansas, is used for cattle production. [OK Ex. 5862 at 4]. The application of

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poultry waste as fertilizer on those pasturelands has enabled those lands to grow the grass
necessary to support the cattle industry. [TR at 951:20-25 (Fite); TR at 9603:9-14 (Smith)].
13.

Recent rapid population growth in Northwest Arkansas has resulted in attendant

residential and commercial construction, as well as deforestation. [TR at 10085:19-10091:11;
10092:15-10093:6 (Grip); TR at 8882:25-8883:7 (Connolly); DJX3494; DJX3676].
14.

The IRW is inhabited by other domestic animals and wildlife, including horses, sheep,

swine, deer, ducks, geese and wild turkeys. Defendants point to these other animals as
contributors to the total amount of phosphorus contained in animal manure deposited in the IRW.
[TR at 9850:10-9852:21 (Clay)]. However, the relative amount of waste from these other animals,
as compared to the systematic application of poultry waste onto the lands of the IRW, is small.
15.

The Illinois River and Lake Tenkiller are used for recreation, including floating

(canoeing, tubing, kayaking, and rafting), swimming, fishing, camping, hunting, scuba diving,
mountain biking, and foliage tours. [TR at 324:10-24; 326:4-327:1 (Tolbert); TR at 959:17960:14 (Fite)].
16.

The IRW contains at least seven WWTPs. [TR at 511:7-18 (Tolbert)]. These plants

have discharge permits which permit them to discharge effluent containing phosphorus directly
into the streams of the IRW, which ultimately drain to Lake Tenkiller. [TR at 511:7-512:6
(Tolbert)].
17.

The waters of the IRW are also used for drinking water. [TR at 339:1-340:18 (Tolbert)].

Eighteen utilities in the Oklahoma portion of the IRW treat water drawn from the Illinois River or
Lake Tenkiller and distribute drinking water to local populations. [TR at 11021:2-23 (McGuire);
OK Ex. 5202].

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D. Regulation of the Waters of the IRW
18.

27A Okla. Stat. § 2-6-102 sets out the State’s public policy regarding water pollution:
Whereas the pollution of the waters of this state constitutes a menace to public
health and welfare, creates public nuisances, is harmful to wildlife, fish and aquatic
life, and impairs domestic, agricultural, industrial, recreational and other legitimate
beneficial uses of water, and whereas the problem of water pollution of this state is
closely related to the problem of water pollution in adjoining states, it is hereby
declared to be the public policy of this state to conserve the waters of the state and
to protect, maintain and improve the quality thereof for public water supplies, for
the propagation of wildlife, fish and aquatic life and for domestic, agricultural,
industrial, recreational and other legitimate beneficial uses; to provide that no waste
or pollutant be discharged into any waters of the state or otherwise placed in a
location likely to affect such waters without first being given the degree of
treatment or taking such other measures as necessary to protect the legitimate
beneficial uses of such waters; to provide for the prevention, abatement and control
of new or existing water pollution; and to cooperate with other agencies of this
state, agencies of other states and the federal government in carrying out these
objectives.

19.

27A Okla. Stat. § 2-6-105(A) provides: “It shall be unlawful for any person to cause

pollution of any waters of the state or to place or cause to be placed any wastes in a location where
they are likely to cause pollution of any air, land or waters of the state. Any such action is hereby
declared to be a public nuisance.”
20.

With respect to poultry waste, the law states: “Poultry waste handling, treatment,

management and removal shall: (a) not create an environmental or a public health hazard, (b) not
result in the contamination of the waters of the state . . . .” 2 Okla. Stat. § 10-9.7(B)(4)(a) and (b).
21.

The State asserts “an interest in the beds of navigable rivers to their high water mark, as

well as all waters running in definite streams,” and also claims that it “holds all natural resources,
including the biota, land, air and waters located within the political boundaries of Oklahoma in

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trust on behalf of and for the benefit of the public.” [TR at 309:18-310:20 (Tolbert); Doc. 1215,
Sec. Am. Compl. ¶5].2
22.

The principal agencies having jurisdiction over environmental matters in the Oklahoma

Portion of the IRW include the Oklahoma Department of Environmental Quality (“ODEQ”), the
Oklahoma Water Resources Board (“OWRB”), Oklahoma Department of Agriculture, Food and
Forestry (“ODAFF”), Oklahoma Conservation Commission (“OCC”), Oklahoma Department of
Wildlife Conservation (“ODWC”) and the Oklahoma Scenic Rivers Commission (“OSRC”). [See
27A Okla. Stat. § 1-3-101; TR at 304:15-305:8 (Tolbert)]. The activities of these agencies are
coordinated through the Oklahoma Secretary of the Environment. [Id.].
23.

Additionally, the Arkansas-Oklahoma Arkansas River Compact Commission (“Compact

Commission”), was formed in 1970 to administer the appropriation of water in the Arkansas
River basin. [TR at 644:14-19 (Fite)]. The Compact Commission has no regulatory authority; its
primary role is water quantity, not water quality. [TR at 307:20-22 (Tolbert); 82 Okla. Stat.
§ 1421; TR at 307:25-308:9 (Tolbert); TR at 9464:23-9465:10 (Smith)].
24.

The Oklahoma Legislature has designated portions of streams and rivers in the IRW in

Oklahoma, specifically the Illinois River, the Barren Fork and Flint Creek, as “Scenic Rivers.”
[82 Okla. Stat. § 1452; TR at 312:5-25; 313:21-314:2; 315:6-17 (Tolbert); 3186:1-16; 3187:6-12;
3188:5-19 (Strong)], and as “outstanding resource waters” [TR at 3186:1-3187:12; 3188:5-19
(Strong)].
1. Water Quality Standards
25.

The OWRB sets water quality standards for the waters of the state, including the water in

the IRW. [See 82 Okla. Stat. §§ 1085.2(16), 1085.30(A)(1); TR at 323:15-25 (Tolbert)]. Water
2

The Cherokee Nation also claims ownership of much of the waters of the IRW. [See, e.g., 63 Cherokee
Nation Code § 201 (“Waters of the Nation”); Doc. 2362, Opinion and Order].

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quality standards are provisions of law that identify beneficial uses of the waters and govern how
clean that water is supposed to be. [TR at 321:16-20 (Tolbert); TR at 3180:6-12 (Strong)].
Beneficial uses are assigned on the basis of what those water bodies should be able to support
(e.g., a public water supply, agriculture, fish and wildlife propagation, recreation). [TR at
3180:13-20 (Strong); Okla. Admin. Code § 785:45-1-2)]. “Beneficial uses are protected through
the restrictions imposed by the antidegradation policy, narrative criteria and numerical standards.”
[See Okla. Admin. Code § 785:45-5-2(a)].
26.

Water quality standards differ for every body of water in the state based on scientific

surveys. [TR at 321:21-23 (Tolbert); TR at 3180:21-3181:4; 3183:7-19 (Strong)]. The standards
identify the beneficial uses of the water at issue, the criteria needed to protect those uses, and the
prohibitions against antidegradation. [TR at 321:23-322:7 (Tolbert)].
27.

Water quality standards apply to pollution from both point and non-point sources. [TR at

322:8-12 (Tolbert)]. A water body that does not meet water quality standards is described as
“impaired.” [TR at 322:-13-16 (Tolbert)].
28.

The State’s water quality standards are promulgated as regulations in the Oklahoma

Administrative Code. [Okla. Admin. Code § 785:45; OK Ex. 5108; TR at 3178:11-16 (Strong)].
The designated beneficial uses and antidegradation protections set for particular bodies of waters
are found in Appendix A to title 785, chapter 45 of the Oklahoma Administrative Code. [TR at
3184:5-10 (Strong)].
29.

The criteria are both numerical (e.g., a concentration level in the water) and narrative

(e.g., a qualitative description of the condition of water quality). [TR at 3182:8-3183:6 (Strong);
Okla. Admin. Code § 785:45-1-2]. Where there is a conflict between a narrative criterion and a
numerical criterion, the more stringent criterion controls. [Okla. Admin. Code § 785:45-5-4(d);

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TR at 3188:25-3189:3 (Strong)]. Additionally, as the term suggests, antidegradation standards
prohibit degradation of water quality in the waters of the state. [TR at 3183:20-23 (Strong).
30.

The State’s water quality standards contain a general narrative criterion with respect to

nutrients which is applicable to all beneficial uses. It provides that “[n]utrients from point source
discharges or other sources shall not cause excessive growth of periphyton, phytoplankton, or
aquatic macrophyte communities which impairs any existing or designated beneficial use.” [Okla.
Admin. Code § 785:45-5-9(d); TR at 3449:8-25 (Strong)].
31.

The narrative and numerical water quality standards for aesthetics beneficial use are

found at Okla. Admin. Code § 785:45-5-19. [TR at 3189:9-20 (Strong)]. The narrative standard
provides that “[t]o be aesthetically enjoyable, the surface waters of the state must be free from
floating materials and suspended substances that produce objectionable color and turbidity,” and
that “[t]he water must also be free from noxious odors and taste, from materials that settle to form
objectionable deposits, and discharges that produce undesirable effects or are a nuisance to aquatic
life.” [Okla. Admin. Code § 785:45-5-19(a) and (b); TR at 3190:6-22 (Strong)]. The numerical
standard provides that “[t]he thirty (30) day geometric mean total phosphorus concentration in
waters designated ‘Scenic River’ in Appendix A of this Chapter shall not exceed 0.037 mg/L.”
[Okla. Admin. Code § 785:45-5-19(c)(2); TR at 3189:21-3190:5 (Strong)]. The numerical
standard for total phosphorus became effective on July 1, 2002. [TR at 3190:23-25 (Strong)].
32.

The narrative and numerical water quality standards for the fish and wildlife propagation

(cool water aquatic community) beneficial use are found at Okla. Admin. Code § 785:45-5-12.
[TR at 3443:18-22 (Strong)]. The narrative biological standard provides that “[a]quatic life in all
waterbodies with the beneficial use designation of Fish and Wildlife Propagation (excluding
waters designated ‘Trout, put-and-take’) shall not exhibit degraded conditions as indicated by one

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or both of the following: (i) comparative regional reference data from a station of reasonably
similar watershed size or flow, habitat type and Fish and Wildlife beneficial use subcategory
designation or (ii) by comparison with historical data from the waterbody being evaluated.”
[Okla. Admin. Code § 785:45-5-12(f)(5)(A); TR at 3450:25-3451:18 (Strong)]. The standard
further provides that “[c]ompliance with the biological criteria to protect Fish and Wildlife
Propagation set forth in this paragraph shall be based upon measures including, but not limited to,
diversity, similarity, community structure, species tolerance, trophic structure, dominant species,
indices of biotic integrity (IBI’s), indices of well being (IWB’s), or other measures.” [Okla.
Admin. Code § 785:45-5-12(f)(5)(B); TR at 33451:19-25 (Strong)]. The numerical standard for
dissolved oxygen provides that “[e]xcept for naturally occurring conditions, the dissolved oxygen
criteria are as set forth in Table 1 of Appendix G.” [Okla. Admin. Code § 785:45-5-12(f)(1)(C).]
Appendix G provides that for early life stages (March 1 through May 31) the dissolved oxygen
criterion is 7 mg/L at seasonal temperatures of 22 degrees centigrade; for other life stages in
summer conditions (June 1 through October 15) the dissolved oxygen criterion is 6 mg/L at
seasonal temperatures of 29 degrees centigrade; and for other life stages in winter conditions
(October 16 through February 28) the dissolved oxygen criterion is 6 mg/L at seasonal
temperatures of 18 degrees centigrade. [Okla. Admin. Code § 785:45 (App. G); TR at 3444:173445:2 (Strong)].
33.

The narrative and numerical quality standards for public and private water supply

beneficial use are found at Okla. Admin. Code § 785:45-5-10. [TR at 3445:9-14 (Strong)]. The
numerical standard for chlorophyll-a provides,
The long term average concentration of chlorophyll-a at a depth of 0.5 meters
below the surface shall not exceed 0.010 mg/L in Wister Lake, Tenkiller Ferry
Reservoir, nor any waterbody designated SWS [sensitive water supply] in

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Appendix A of this Chapter. Wherever such criterion is exceeded, numerical
phosphorus or nitrogen criteria or both may be promulgated.
[Okla. Admin. Code § 785:45-5-10(7); TR at 3445:18-3446:10 (Strong)].
34.

The state’s water quality standards for the IRW have been submitted to and approved by

the Environmental Protection Agency (“EPA”), and as such have become federal law. [TR at
372:2-10 (Tolbert)].
35.

The OWRB has adopted a 0.037 mg/L aesthetics criterion for total phosphorus

concentration in designed Scenic Rivers. [Okla. Admin. Code § 785:45-5-19(c)(3)]. At the time
of trial, the State had not compelled wastewater treatment plants to reduce their phosphorus
discharge levels to meet the 0.037mg/L criterion. Instead, wastewater treatment plants were
merely required to meet a 1.0 mg/L phosphorus standard, which is nearly 30 times higher than the
0.037 mg/L goal. [TR at 884:22-885:14 (Fite)].
2. Antidegradation Standards
36.

Oklahoma’s water quality standards specifically provide that “[n]o water quality

degradation which will interfere with the attainment or maintenance of an existing or designated
beneficial use shall be allowed.” [Okla. Admin. Code § 785:45-3-2(d); TR at 3452:8-20 (Strong)].
37.

Oklahoma’s water quality standards establish a more stringent antidegradation

requirement for Scenic Rivers, Outstanding Resource Waters and waters located within the
watersheds of Scenic Rivers by providing that “[n]o degradation of water quality shall be allowed
in these waters.” [Okla. Admin. Code § 785:45-3-2(a); TR at 3452:21-3453:18 (Strong)].
38.

Oklahoma’s water quality standards also establish a more stringent antidegradation

requirement for High Quality Waters which are waters of the state that “possess existing water
quality which exceeds those levels necessary to support propagation of fishes, shellfish, wildlife,

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and creation in and on the water” by providing that “[t]hese high quality waters shall be
maintained and protected.” [Okla. Admin. Code § 785:45-3-2(b); TR at 3456:3-18 (Strong)].
39.

The implementation policies for these antidegradation standards include a prohibition on

any new point source discharges of designated pollutants, including phosphorus, or any increased
load of designated pollutants, including phosphorus, from any existing point source discharger in
Outstanding Resource Waters, Scenic Rivers, and waterbodies within the watersheds of Scenic
Rivers after June 25, 1992. [Okla. Admin. Code § 785:45-5-25(a) and (c)(1); TR at 3455:3-16
(Strong)].
40.

Similarly, these implementation policies include a prohibition on any new point source

discharges of designated pollutants, including phosphorus, or any increased load of designated
pollutants, including phosphorus, from any existing point source discharge in High Quality Waters
except in limited circumstances (which have not occurred in the IRW). [Okla. Admin. Code
§ 785:45-5-25(c)(3); TR at 3458:1-15 (Strong)].
3. Designated Beneficial Uses of Waters in the IRW
41.

The beneficial uses designated for Lake Tenkiller are public and private water supply,

cool water aquatic community, agriculture, primary body contact recreation and aesthetics. [Okla.
Admin. Code § 785:45 (App. A); TR at 3184:16-20 (Strong)]. Additionally, Baron Fork has been
designated as both an “outstanding resource water” and a scenic river. [Okla. Admin. Code
§ 785:45 (App. A); TR at 3186:7-16 (Strong)]. The beneficial uses designated for Baron Fork
from Highway 59 to the Arkansas state line are public and private water supply, cool water aquatic
community, agriculture, primary body contact recreation and aesthetics. [Okla. Admin. Code
§ 785:45 (App. A); TR at 3186:17-25 (Strong)]. Baron Fork has also been designated as an

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“outstanding resource water” and as being located in a “nutrient limited watershed.” [Okla.
Admin. Code § 785:45-5-29(B)(19); TR at 3187:1-5 (Strong)].
42.

The beneficial uses designated for the upper Illinois River upstream from the Baron Fork

confluence to the Arkansas state line are public and private water supply, cool water aquatic
community, agriculture, primary body contact recreation and aesthetics. [Okla. Admin. Code
§ 785:45 (App. A); TR at 3186:6-12, 3187:22-3188:1 (Strong)]. It has also been designated an
“outstanding resource water,” a scenic river, and as being located within a “nutrient limited
watershed.” [Okla. Admin. Code § 785:45 (App. A); § 785:45-5-29(b)(19); TR at 3186:6-12
(Strong)]. Further, the Illinois River is a “high use waterbody.” [TR at 3441:25-3442:7 (Strong)].
43.

The beneficial uses designated for Flint Creek from its mouth to the state line are public

and private water supply, cool water aquatic community, agriculture, primary body contact
recreation and aesthetics. [Okla. Admin. Code, § 785:45 (Appendix A); TR at 3188:5-9 (Strong)].
Flint Creek has also been designated an “outstanding resource water,” a scenic river and as being
located within a “nutrient limited watershed.” [Okla. Admin. Code, § 785:45 (Appendix A); Okla.
Admin. Code, § 785:45-5-29(b)(19); TR at 3188:10-16 (Strong)].
4. Total Maximum Daily Load
44.

Total maximum daily load (“TMDL”) is defined as:
The sum of the individual WLAs [Wasteload Allocations] for point sources and
LAs [Load Allocations] for nonpoint sources and natural background. If a
receiving water has only one point source discharger, the TMDL is the sum of that
point source WLA plus the LAs for any nonpoint sources of pollution and natural
background sources, tributaries, or adjacent segments. TMDLs can be expressed in
terms of either mass per time, toxicity, or other appropriate measure. If Best
Management Practices (BMPs) or other nonpoint source pollution controls make
more stringent load allocations practicable, then wasteload allocations can be made
less stringent. Thus, the TMDL process provides for nonpoint source control
tradeoffs.

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40 C.F.R. § 130.2(i).3
45.

A TMDL is a planning tool used to determine the greatest amount of loading that a water

body can receive without violating water quality standards (i.e., a load capacity), and to apportion
that loading capacity between loads from point and nonpoint sources. [TR at 3608:14-17 (Strong);
Court’s Ex. 13 at p. 12 (Thompson Dep.)]. A TMDL is not self-executing. See CL ##86-91.
46.

Oklahoma drafted a TMDL for the Oklahoma portion of the IRW, but that draft had not

been finalized at the time of trial. [TR at 1396:1-13 (Phillips); TR at 3704:9-14 (Strong)].
47.

Stephen Thompson, Executive Director of the ODEQ, testified that a completed TMDL

for the IRW will result in a determination that phosphorus loads from point sources and nonpoint
sources need to be reduced. [TR at 10769:12-25 (Thompson)]. Point sources in the Oklahoma
portion of the IRW include the cities of Tahlequah, Westville and Stilwell; ODEQ is legally
required to implement any loading reductions required by a TMDL in these cities’ point source
NPDES permits. [TR at 10770:1-26 (Thompson)]. However, ODEQ has no authority to mandate
reductions in poultry litter-based loads required by a TMDL, and can only make
recommendations. [TR at 10771:18-25 (Thompson)]. Further, although phosphorus loading also
3

Wasteload allocation means:
The portion of a receiving water’s loading capacity that is allocated to one of its existing or
future point sources of pollution. WLAs constitute a type of water quality-based effluent
limitation.

40 C.F.R. § 130.2(h). Load allocation means:
The portion of a receiving water’s loading capacity that is attributed either to one of its
existing or future nonpoint sources of pollution or to natural background sources. Load
allocations are best estimates of the loading, which may range from reasonably accurate
estimates to gross allotments, depending on the availability of data and appropriate
techniques for predicting the loading. Wherever possible, natural and nonpoint source
loads should be distinguished.
40 C.F.R. § 130.2(g).

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originates in the Arkansas portion of the IRW, no agency of the State of Oklahoma has authority
to enforce nonpoint source loading reductions required by a TMDL in the State of Arkansas. [TR
at 10776:17-10777:6 (Thompson)].
48.

Thompson testified the ODEQ is concerned the sampling methodology used to determine

the TMDL will result in an unfair allocation in load reductions between point sources and
nonpoint sources. [TR at 10769:7-11; 10772:23-10773:25; 10782:14-22 (Thompson)]. Both the
former and current Water Quality Division Chiefs worked with the OWRB to resolve the issue,
but at the time of trial, no resolution had been reached. [TR at 10776:9-16 (Thompson)].
Thompson did not know when OWRB would make its decision, and he testified that if the issue is
not resolved, ODEQ would have to proceed to generate a TMDL. [TR at 10787:9-15; 10785:1319 (Thompson)].
49.

In October 2009, the EPA proposed development of a model of the IRW incorporating

all relevant segments and nutrient sources in both Arkansas and Oklahoma. [DJX8090; TR at
10794:20-10795:15 (Thompson)]. The EPA’s stated purpose was “to provide a technically sound
basis upon which regulatory and non-regulatory decisions can be confidently based.” It stated,
“[w]e expect this modeling effort may lead to the development of one or more Total Maximum
Daily Load (TMDLs) for the Illinois Basin.” [DJX8090]. The EPA proposed a June 2012
deadline for having TMDLs established. [Id.] Both the ODEQ and the Arkansas Department of
Environmental Quality are participating in the effort. [TR at 10806:22-10807:6 (Thompson);
9544:3-11 (Smith)]. The modeling project (which the EPA expects may lead to the development
of one or more TMDLs for the Illinois Basin) was completed in April of 2018.
50.

Arkansas regulators believe that the 0.037 mg/L phosphorus scenic river criterion is

“unachievable.” [TR at 9519:8-9520:12; 9542:6-16 (Smith)]. Therefore, pursuant to a Joint

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Statement of Principles entered into in 2003 by the States of Oklahoma and Arkansas, Oklahoma
committed to “re-evaluate [the] .037 milligram per liter criterion for total phosphorus in
Oklahoma’s scenic rivers by 2012, based on the best scientific information available at that time.”
[TR at 3700:13-21 (Strong); TR at 10797:23-10799:24 (Thompson); OK Ex. 5928].4
51.

The State of Oklahoma has not adopted a numeric criterion for total phosphorus in the

numerous streams, creeks and rivers in the Oklahoma portion of the IRW not designated as Scenic
Rivers. [TR at 3602:1-12 (Strong); TR at 7308:1-19 (Stevenson)].
E. Phosphorus in the IRW
52.

Much of the evidence in this case refers generally to the various phosphorus compounds

at issue as “phosphorus” or the single letter, “P.” This shorthand does not refer to elemental
phosphorous (“P” on the periodic table). Elemental phosphorous “is not found naturally in the
environment,” but rather is “created in a laboratory and is used for things like fireworks.” [TR at
8894:3-10 (Connolly)]. For convenience, these findings and conclusions will occasionally adopt
the common shorthand of referring to phosphorus compounds simply as “phosphorus.”
53.

Broadly speaking, phosphorus can be divided into four categories: particulate organic

phosphorus, particulate inorganic phosphorus, dissolved organic phosphorus and dissolved
inorganic phosphorus. [TR at 8894:20-8898:7 (Connolly)]. Soluble reactive phosphorus, or

4

Oklahoma and Arkansas have entered into a Second Statement of Joint Principles and Actions, pursuant
to which Oklahoma committed to remove the date to achieve full compliance with the 0.037 mg/L Numeric
Phosphorus Standard set forth in OAC 785:45-5-19 and 785:45-5-25(d), and the States commissioned a
three-year Joint Phosphorus Criteria Study. [Doc. 2920, Ex. A]. The goal of the study was to determine
“the Total Phosphorus threshold response level, in milligrams per liter (mg/L), at which any statistically
significant shift occurs in algal species composition or algal biomass production resulting in undesirable
aesthetic or water quality conditions in the Designated Scenic River,” the purpose of which is “to provide
reliable and objective data and analysis that will then form the basis for the parties and EPA to make
informed decisions about the scientific merit of any proposed revisions to the phosphorus criteria for the
Designated Scenic Rivers.” [Id. at 2-4].

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“SRP” is mostly dissolved inorganic phosphorus, but includes a small amount of dissolved organic
phosphorus, and is available for algal growth. [TR at 8896:17-8897:1 (Connolly)].
F. State Regulation of Poultry Litter
54.

Both Oklahoma and Arkansas regulate the land application of poultry litter in the IRW.
1. Oklahoma

55.

Oklahoma regulates poultry feeding operations and litter application through the

Oklahoma Registered Poultry Feeding Operations Act (“ORPFOA”), 2 Okla. Stat. § 10.9:9.1-9.12,
and the Oklahoma Poultry Waste Applicators Certification Act (“OACA”), 2 Okla. Stat.
§ 10.9:9.16-9.24, both of which were enacted in 1998.
56.

Under the ORPFOA, all poultry feeding operations are required to register with the State

Board of Agriculture. [2 Okla. Stat. § 10-9.3]. Additionally, the ORPFOA requires that all
poultry feeding operations shall:

57.



utilize Best Management Practices, 2 Okla. Stat. § 10-9.7(A);



have an Animal Waste Management Plan (“AWMP”) and comply with the
application rates and instruction set forth therein; Okla. Admin. Code
§ 35:17-5-3(b); and



perform annual testing of the poultry litter and the soil to which it may be
applied. 2 Okla. Stat. § 10-9.7(E); Okla. Admin. Code § 35:17-5-5(a)(3).

The State Department of Agriculture is charged with administration and enforcement of

the OACA. [2 Okla. Stat. § 10-9.20]. The department has the authority to suspend, cancel, deny
or revoke applicator certificates. [2 Okla. Stat. § 10-9.21].
58.

The Oklahoma Department of Agriculture, Food and Forestry (“ODAFF”) has

promulgated regulations for both ORPFOA and OACA. [See Okla. Admin. Code § 35:17-5-1, et
seq. (ORPFOA regulations), and Okla. Admin. Code § 35:17-7-1, et seq.]. The purpose of the
regulations is to assist in ensuring the beneficial use of poultry waste while preventing adverse

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effects to waters of the State. [Okla. Admin. Code § 35:17-5-1; TR at 463:14-18 (Tolbert)]. The
ODAFF regulations set forth the factors that control the amount, location and manner in which
poultry litter may be applied to any particular field. [TR at 467:1-470:4 (Tolbert)].
59.

AWMPs are field-specific plans setting forth the time, location, and amount of poultry

litter that may be applied to a parcel of land. [See, e.g., DJX1, DJX3480; OK Ex. 4061; TR at
2899:15-2900:5 (Gunter)]. An AWMP must set forth “land application rates of poultry waste . . .
based on the available nitrogen and phosphorus content of the poultry waste and . . . provide
controls for runoff and erosion as appropriate for site conditions” based on “a soil test and current
[USDA Natural Resources Conservation Service (NRCS)] phosphorous standards.” 2 Okla. Stat.
§ 10-9.7(C)(5); Okla. Admin. Code § 35:17-5-3(b)(6), (7).
60.

AWMPs must also incorporate Best Management Practices (“BMPs”) including all those

set forth in the ORPFOA and accompanying regulations. [See 2 Okla. Stat. § 10-9.7(A); TR at
464:17-465:6; (Tolbert)]. For example, an AWMP will include instructions regarding how the
grower is “going to handle and utilize the poultry waste,” including storage. [TR at 2900:14-15
(Gunter)]. At the time of trial, about 20 percent of growers had not yet received an AWMP,
although they had all applied for one. An AWMP contains prohibitions against application in
certain circumstances, including “when the ground is saturated or during rainfall events or when
it’s frozen.” [TR at 2900:17-19 (Gunter)]. It prohibits application to locations within 100 feet of a
perennial stream, within 50 feet of an intermittent stream and to fields with a slope greater than 15
percent or soils less than 10 inches in depth. [TR at 484:2-485:8 (Tolbert)].
61.

Oklahoma regulations authorize the drafting and issuance of AWMPs on behalf of the

State “by the USDA NRCS or an entity approved by the State Department of Agriculture.” [Okla.
Admin. Code § 35:17-5-3(b)(3)]. Currently, AWMPs are drafted by soil scientists under contract

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with ODAFF, each of whom possesses training and expertise in this field. [TR at 2906:252907:11, 2909:11-16 (Gunter)].
62.

Each AWMP is supposed to be tailored to the characteristics of the specific parcel of

land to which the AWMP relates. [TR at 464:17-465:6 (Tolbert)]. Each plan “incorporates
everything from the statutes and the rules, but it also may incorporate particular issues that are
associated with that individual’s property, like is it a bordering stream or something to that effect.”
[TR at 2899:15-2900:5 (Gunter)].
63.

The ORPFOA requires AWMPs to include BMPs and provisions mandating that there be

“no discharge of poultry waste to the waters of the state” and no “contamination of the waters of
the state.” [2 Okla. Stat. § 10-9.7(B)]. Under ORPFOA, “[t]he procedures documented in the
[AWMP] must ensure,” that “poultry waste shall only be applied to suitable land at appropriate
times and rates,” and “[d]ischarge or runoff of waste from the application site is prohibited.” [2
Okla. Stat. § 10-9.7(C)(6)(c)].
64.

Similarly, ODAFF’s “Animal Waste Management Plan Requirements” mandate that

“[s]torage and land application of poultry waste shall not cause a discharge or runoff of significant
pollutants to the waters of the state.” [Okla. Admin. Code § 35:17-5-5(c)].
65.

The OACA requires that anyone who applies poultry litter—whether as a commercial or

private applicator—must first obtain an applicator’s certificate from the State Board of
Agriculture. [See 2 Okla. Stat. § 10-9.17(A); Okla. Admin. Code §§ 35:17-7-3(a), 4(a)]. The
OACA also requires litter application, whether by a private or commercial applicator, to “comply
at all times with the provisions set forth in . . . [t]he Animal Waste Management Plan, if
application is conducted on land operated by a registered poultry operation.” [2 Okla. Stat. § 10-

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9.19]. All other applications in a nutrient-limited watershed must comply with a Conservation
Plan. [Id.]
66.

The ORPFOA requires all poultry feeding growers and all certified applicators to receive

nine hours of education on “poultry waste handling” in the first year and two hours of continuing
education every year until the operator has received a total of 19 hours training; thereafter,
operators are required to receive two hours of continuing education every three years. [See Okla.
Admin. Code § 35:17-5-11.] The training is generally provided through the Oklahoma State
University Extension Service and usually includes participation by ODAFF officials in the
educational programs and training videos. [TR at 2917:23-2919:12 (Gunter); DJX1185 (OSU
Extension Service handouts); DJX1191-A (training video excerpt)].
a. Phosphorus Standards in Oklahoma
67.

The ORPFOA incorporates the standards set forth in the U.S. Department of

Agriculture’s Natural Resources Conservation Service’s (“NRCS”) Code 590, which are the
“current [NCRS] phosphorus standards.” [2 Okla. Stat. § 10-9.7(C)(5); Okla. Admin. Code
§ 35:17-5-3(b)(6), (7); see DJX3916 (Oklahoma-NRCS Code 590); TR at 472:3-25 (Tolbert)].
68.

NRCS Code 590 is “the primary document that the State of Oklahoma relies on for

putting [AWMPs] together.” [TR at 2910:16-2911:2 (Gunter)]. Indeed, the legislature has
mandated a specific Code 590 for use in Oklahoma (herein “Oklahoma NRCS Code 590”). [TR at
472:3-25 (Tolbert); DJX3916 (NCRS, OK Code 590)]. The purpose of Oklahoma NRCS Code
590 is, among other things, (1) “to minimize agricultural nonpoint source pollution of surface and
ground water resources” and (2) to “properly utilize manure or organic by-products as a plant
nutrient source.” [DJX3916 at1].

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69.

Oklahoma law requires Oklahoma-NRCS Code 590 standards to be incorporated into

individual growers’ AWMPs, and growers are required to follow these standards. [2 Okla. Stat.
§ 10-9.7(C)(5); Okla. Admin. Code § 35:17-5-3(b)(6), (7); TR at 2911:12-24 (Gunter)].
70.

Oklahoma NRCS Code 590 incorporates an agronomic rate for nitrogen as the limiting

nutrient, but does not incorporate an agronomic rate for phosphorus. [TR at 531:13-532:6
(Tolbert); DJX3916 at 4]. The agronomic rate is the soil test value of the measured constituent at
which there is 100 percent adequacy to grow the yield potential for a particular crop. [TR at
5003:23-5004:21 (Johnson)].
71.

Oklahoma NRCS Code 590 sets maximum limits on litter application that are dependent

on whether the land at issue is in a “Nutrient Limited” or “Non-Nutrient Limited” Watershed.
[DJX3916 at 21]. In nutrient limited watersheds, litter may not be applied to any land with an
STP (soil test phosphorus) level greater than 300. [Id.] The State first designated the Oklahoma
portion of the IRW as “Nutrient Limited” effective July 1, 2006. [TR at 2910:7-12 (Gunter)].
Prior to that time, the non-nutrient limited Code 590 standards applied to the IRW, including the
STP cap of 400 pounds per acre. [DJX3916 at 21; TR at 3657:11-25 (Strong)].
72.

The maximum land application rate of 300 lbs/acre STP in a nutrient limited watershed

set forth in Code 590 is not scientifically based. [TR at 3688:24-3689:5 (Strong); 5088:5-8
(Johnson)].
73.

As mentioned in paragraph 7, above, the principal pasture grasses grown in the IRW are

fescue and bermuda. [TR at 9864:23-9865:1 (Clay)]. At an STP of 40 lbs/acre, there is a 95
percent sufficiency of the phosphorus requirement for growth of these grasses, while at an STP of
65 lbs/acre, there is a 100 percent sufficiency. [OK Ex. 3169; OK Ex. 3168].

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74.

“Science-based fertilizer recommendations used by Oklahoma State University, based on

decades of field and laboratory research, show a STP value of 65 is adequate for production of
most crops.” [OK Ex. 3145 at p. 2; TR at 5001:9-12 (Johnson)].
75.

The Oklahoma Cooperative Extension Service states that “nutrient utilization standards

that are protective of the environment would require that animal manure applications do not result
in soil test phosphorus levels that exceed 120.” [OK Ex. 3145 at p. 2].
76.

A field-average soil test of 120 lbs/acre (based on 15 to 20 cores per field) can be used to

ensure that 95 percent of the area of a field has sufficient phosphorus with soil test levels of
65+lbs/acre to prevent any localized deficiencies due to soil variability. [OK Ex. 3145 at p. 2; TR
at 5020:19-5022:6 (Johnson)]. Nutrient utilization standards that are protective of the
environment require that animal manure applications do not result in soil test phosphorus levels
that exceed 120. [OK Ex. 3145 at p. 2 (Oklahoma Cooperative Extension Service Publication
entitled “Managing Phosphorus from Animal Manure”].
77.

Significantly, however, there would be no noticeable difference in crop response between

a field-average soil test of 120 lbs/acre and a field-average soil test of 65 lbs/acre. [TR at 5174:316; 5022:2-6 (Johnson)]. Put another way, at land application rates in excess of agronomic need
for phosphorus, there is no crop benefit. [TR at 5174:4-8; 5022:7-9 (Johnson)]. Indeed, the State’s
expert, Dr. Gordon Johnson,5 characterized additional land application of phosphorus from poultry
waste at levels above 120 STP as “waste disposal.” [TR at 5022:19-5023:9 (Johnson)].

5

Dr. Johnson received his Ph.D. in soil science with a specialty in chemistry and biology in 1969 from the
University of Nebraska at Lincoln. [TR at 4986:10-16 (Johnson)]. He was a professor of soil science at
Oklahoma State University from 1977 until he retired as Regents Professor in 2004. [TR at 4985:18-20
(Johnson)]. Before that, he was a professor in the Department of Agriculture, Chemistry and Soils at the
University of Arizona from 1969-1977, where he taught and conducted research in nutrient management.
[TR at 4986:18-24 (Johnson)]. In 1977, he was hired by OSU as a state specialist in nutrient management

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78.

The “protective rate”6 for commercial fertilizer in Arkansas regulations that became

effective January 1, 2010, recommends no additional phosphorus for soils having STP values
greater than 100 lbs/acre (the Arkansas agronomic critical value). [DJX8133 (New ANRC Rules,
Appendix B)].
79.

Elevated STP levels increase the amount of dissolved phosphorus in runoff. [TR at

5028:3-10 (Johnson); TR at 9209:1-6 (Connolly); OK Ex. 3312 at ADEQ-226; OK Ex. 3145 at
2249-2].
80.

Field-specific restrictions on the land application of poultry waste are a field

management tool, not a watershed management tool. [TR at 9597:1-5; 9597:9-14 (Smith)].
AWMPs and NMPs are “absolutely site specific” and are not written with a view to protecting the
watershed as a whole, but rather to attempt to reduce phosphorus running off from a specific field.
[TR at 6654:9-17 (Engel)]. As defendants’ expert, Dr. Timothy Sullivan,7 recognized, one of the
issues with nonpoint source pollution is that there can be what amounts to “death by a thousand
cuts.” [TR at 10932:16-22 (Sullivan)]. Put another way, over an entire watershed, individually
small but environmentally consequential releases of phosphorus combine to create the overall
pollution of a waterbody.
81.

Based upon the evidence presented at trial, the court finds by a preponderance that land

application of poultry litter in the IRW that results in soil test phosphorus levels in excess of
in the cooperative extension service and as the director of the soil, water and forage testing laboratory. [TR
at 4987:2-6 (Johnson)].
6
“Protective rate” is defined as “the application rate for commercial fertilizers approved by the
Commission for designated Nutrients that provides for proper Crop utilization and prevention of significant
impact to Waters within the State.” [DJX8133 (New ANRC Rules, Title XXII, § 2201.4(X))].
7
Dr. Sullivan has a Ph.D. in biological sciences from Oregon State University and conducted post-doctoral
research in Norway on hydrology flow paths in watersheds. [TR at 10565:15-25, 10568:25-10569:14]. He
is president of E & S Environmental Chemistry, Inc., a consulting firm which conducts work on human
activities and water quality, and on environmental restoration and watershed assessments. [TR at 10565:712, 10571:20-10572:20].

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120 lbs/acres results in continued and unnecessary pollution of the IRW by phosphorus from
poultry waste. However, the agronomic critical level for phosphorus in the IRW is 65 lbs/acre
STP, and the land application of poultry litter in the IRW in excess of this agronomic critical level
is not protective of the environment and likely results in continued phosphorus pollution.
82.

Oklahoma, through the ODAFF, currently has the statutory authority to alter land

application rates in the Oklahoma portion of the IRW. [TR at 487:5-8 (Tolbert); TR at 2914:212915:17; 2948:25-2950:18 (Gunter); 3564:22-3566:17 (Strong); 2 Okla. Stat. § 10-9].
83.

Neither the legislature, nor ODAFF, nor any other state agency has formally advocated

for the adoption of more stringent standards to limit or prohibit the land application of poultry
litter to the Oklahoma IRW. [TR at 532:7-23 (Tolbert)]. In fact, the State adopted the current
standard after the governor’s animal waste task force specifically considered and voted against
recommending lower STP ceilings. [TR at 3585:1-3588:20 (Strong); DJX2616].
84.

At the time of trial, the Office of the Oklahoma Secretary of the Environment had not

formally petitioned the legislature or ODAFF to lower the land application rates governing the
application of poultry litter in the Oklahoma portion of the IRW. [TR at 476:16-477:2, 488:12-17
(Tolbert)]. ODAFF’s Deputy General Counsel testified that ODAFF had not received a formal
request from any state agency to make such a change, although she admitted that ODAFF could
act unilaterally, as it does not need a formal request to amend its own regulations. [TR at 2915:36, 2915:18-2916:8 (Gunter)].
85.

During the pendency of this lawsuit, the State continued to draft, approve and issue

AWMPs to growers in the IRW. [TR at 475:2-6 (Tolbert); 3579:5-9 (Strong)].
86.

The Attorney General and Secretary of Energy and Environment, as relators, seek an

injunction against land applications of poultry litter that are made in accordance with site-specific

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State authorizations. The State’s position in this litigation reflects a disagreement with current
State law and regulations.
87.

For example, Secretary Tolbert testified that he “disagree[s] with the law as it currently

stands today,” in particular the standards set forth in Code 590. [TR at 489:8-15]. The Deputy
General Counsel for the Oklahoma Department of Agriculture, Teena Gunter, admitted that
through this lawsuit the State seeks a result “more restrictive than the present existing Code 590
and existing Animal Waste Management Plans as set out by [ODAFF’s] rules and regulations and
by the legislature.” [TR at 2980:14-23]. Shanon Phillips, director of the Water Quality Division
of the Oklahoma Conservation Commission, testified that her “preferred outcome” from this
litigation is, in part, to achieve a reduction in the land application of poultry litter in the IRW
through the imposition of land application rates more restrictive than those currently provided for
by Oklahoma law. [TR at 1504:15-1507:1]. The State’s expert, Dr. Johnson, acknowledged that
he did not consider the role of AWMPs drafted pursuant to the current legal standards because he
believes that “the laws of Arkansas and Oklahoma should be changed and replaced with [his]
absolute 120 STP criteria.” [TR at 5171:3-8].
b. Compliance
88.

Numerous Oklahoma poultry growers and/or certified applicators testified they rely on

AWMPs to ensure they are complying with Oklahoma law. [TR at 3857:14-20; 3859:7-18;
3860:1-9 (Pigeon); TR at 3944:13-16 (Collins); TR at 4100:20-4101:6; 4116:19-4117:9
(Anderson); TR at 4605:6-18 (Saunders); TR at 4483:22-25, 4517:6-19 (Reed)].
89.

Representatives of each defendant testified their companies rely on local, state and

federal regulations and state inspectors to ensure that contract growers were implementing sound
environmental practices. [TR at 3316:20-3317:6 (Keller, former Tyson employee); TR at

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4143:16-4144:16; 4146:12-17 (Simmons, Simmons representative); TR at 4308:3-4309:4
(McClure, George’s representative); TR at 4450:23-4451:7 (Storm, Cal-Maine representative); TR
at 4732:5-4733:3, 4734:14-4735:5; 4735:16-4736:9, 4771:21-4773:4, 4777:19-4778:7 (Maupin,
Cargill employee); TR at 4797:12-24; 4809:23-4810:13; 4831:15-23; 4832:13-19; 4834:7-4835:9,
4839:5-25, 4843:8-18 (Houtchens, Peterson representative); Ct. Ex. 7 (Butler Dep.) at 78:07-78:15
(Cobb-Vantress representative)].
90.

Under Oklahoma law, the ODAFF may (1) assess penalties and points to growers who

fail “to utilize or comply with Best Management Practices or the [AWMP] and [where] the failure
results in actual harm to natural resources of the state,” Okla. Admin. Code § 35:17-5-10.1(2)(H);
and (2) assess penalties and points for the “[f]ailure . . . to utilize or comply with Best
Management Practices or the [AWMP] and [where] the failure results in potential harm to natural
resources of the state.” [Okla. Admin. Code § 35:17-5-10.1(2)(I)]. The ORPFOA also provides
that “[v]iolations involving the greatest harm to the natural resources of the state, ground or
surface water quantity or quality, public health or the environment shall receive the most points
and shall be considered significant violations.” [2 Okla. Stat. § 10-9.12(B)(1)(a)]. The ORPFOA
also provides for criminal penalties for violations of the litter application laws. [See Okla. Stat. §
10-9.11].
91.

Regardless of points, the State Board of Agriculture is authorized to designate any

poultry feeding operation as a concentrated animal feeding operation (CAFO) if “it is determined
to be a significant contributor of pollution to the waters of the state.” [2 Okla. Stat. § 20-44(A)(3)
and (C); 2 Okla. Stat. § 10-9.9(A)]. Under Oklahoma’s CAFO Act, an animal feeding operation
designated as a CAFO is subject to greater scrutiny, stricter requirements, and more in-depth
record-keeping requirements. [2 Okla. Admin. Code § 20-40, et seq.].

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92.

ODAFF has only two poultry inspectors who work in the IRW and are responsible for

inspection of the operations for a total of 77 IRW growers in Oklahoma. [TR at 2923:12-2924:7
(Gunter)]. The inspectors conduct annual inspections of all farms at which litter applications
occur and investigate complaints received about the farms assigned to them. [TR at 2924:82925:18 (Gunter)].
93.

The representatives of the State who testified at trial had not been notified of any

violations of the Act or regulations. [See Ct. Ex. 15 (Peach Dep.) at 38:19-24, 39:1-4, 75:2-4,
75:6-10, 75:12-14, 75:16-76:2, 76:3-10, 92:25-93:4, 93:6; TR at 476:12-15, 478:2-5, 490:20-24
(Tolbert); TR at 2696:15-23 (Fisher); TR at 4843:19-4844:4 (Houtchens); TR at 4977:9-4978:13
(Alsup)].
94.

The growers and applicators appearing as witnesses at trial (all of whom were selected

and called by the State) testified uniformly that they comply with the litter application rates and
requirements set forth in their AWMPs. [TR at 3852:18-3853:3, 3864:20-3865:6 (Pigeon);
3937:21-24, 3939:1-3 (Collins); 4097:22-4098:8, 4103:11-25 (B. Anderson); 4493:8-11, 4508:425 (Reed); TR at 4588:20-25, 4595:19-23 (Saunders)].
95.

Based on the evidence adduced at trial, the Court finds that the defendants themselves

comply with state and federal regulations—including litter application rates and instructions set
forth in AWMPs or NMPs8—on company-owned or operated farms. [TR at 3088:25-3089:9 (M.
Henderson); TR at 3317:11-3318:8 (Keller)].
96.

Plaintiff’s expert, Dr. J. Berton Fisher,9 testified that the State hired a dozen Tulsa

detectives to conduct surveillance of litter hauling and spreading activities in the IRW; the
8

Nutrient Management Plans, discussed below.
Dr. Fisher holds a Ph.D. in earth sciences from Case Western University. [TR at 1560:11-16]. He has
experience with issues of fate and transport of environmental constituents and contaminants. [TR at

9

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surveillance did not result in any evidence of violations of the ORPFOA. [TR at 1654:15-19,
2696:15-23 (Fisher)].
97.

ODAFF grower files introduced at trial showed a handful of violations, most of which

involved deficiencies in record keeping and reporting or issues that were corrected by the grower
in consultation with the agency. [See, e.g., TR at 4977:9-4979:16 (Alsup); TR at 4595:19-4596:6
(Saunders); OK Ex. 2875B; TR at 3865:8-3872:15 (Pigeon); OK Ex. 2875D].
98.

There is no record evidence that any of the issues identified in the paragraph above

caused any pollution or injury to the waters of the Sate. [TR at 3578:12-18 (Strong)]. The current
and former Secretaries of the Environment confirmed that there have been no “significant
violations” of the ORPFOA. [TR at 477:16-478:5 (Tolbert); TR at 3579:20-3581:4 (Strong)].
The ODAFF Deputy General Counsel also confirmed that she was unaware of any “significant
violation.” [TR at 2968:9-2969:15 (Gunter)]. No poultry operation in the IRW has been
designated a CAFO because of a significant violation finding. [TR at 2931:10-2932:21 (Gunter)].
No criminal prosecution has been brought for an ORPFOA violation. [TR at 476:12-15 (Tolbert);
TR at 2968:9-2969:15 (Gunter)]. The ODEQ has never made a finding that the spreading of
poultry waste on any lands within the IRW presents an imminent and substantial endangerment to
human health. [Ct. Ex. 13 (Stephen Thompson Dep.) at 34:19-25].
2. Arkansas Laws and Regulations Governing Land Application of Litter
99.

The Arkansas Soil Nutrient Application and Poultry Litter Utilization Act was enacted

by the Arkansas Legislature in 2003. [See Ark. Code. Ann. § 15-20-1101, et seq.]. However, as
amended in 2005, the act provided that “[a]pplication of poultry litter to soils or to associated
crops within a nutrient surplus area shall be done in accordance with a nutrient management plan
1561:13-1575:15]. He is the founder of Lithochimea, Inc., an environmental consulting firm. [TR at
1574:10-14].

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or poultry litter management plan after January 1, 2007.” [Ark. Code. Ann. § 15-20-1106(f)].
Thus, it was not until January 2, 2007, that poultry growers were required by Arkansas law to
comply with nutrient management plans. In addition, while the Arkansas Natural Resources
Commission (“ANRC”) promulgated certain “Rules Governing the Arkansas Soil Nutrient and
Poultry Litter Application and Management Program,” those rules did not become effective until
January 1, 2006. [OK Ex. 5914 (Former ANRC Rules, Tit. XXII, § 2201.1(B))]. In any event, at
no time prior to the enactment of the 2003 legislation did Arkansas place any restriction on the
amount of poultry waste that could be applied on a field. [TR at 9515:2-8; 9598:17-23 (Smith)].
100. Following enactment of the legislation in 2003, the ANRC provided for a “protective
rate” to be used as an interim measure. [TR at 9514:7-23 (Smith)]. The “protective rate” set
limits on application of poultry litter or commercial fertilizer in nutrient-limited areas where land
owners had not yet obtained nutrient management plans for their land. [OK Ex. 5914 (Former
ANRC Rules, Title XXII, § 2202.3(a))]. The “protective rate” for poultry litter application
expired January 1, 2007. [OK Ex. 5914, Former ANRC Rules, Title XXII, § 2202.3(A)(1)].
Although the protective rate has expired, Earl Smith, the chief of the water management division
of the ANRC, cannot be sure that all farmers have nutrient management plans. [TR at 9596:10-22
(Smith)].
101. The ANRC Rules Governing the Arkansas Soil Nutrient and Poultry Little Application
and Management Program also provide for a “Phosphorus Index” to be referenced in all nutrient
management plans and to “govern the terms and conditions under with Nutrients may be landapplied.” [See ANRC Rules, Title XXII, § 2201.4(B)]. ANRC revised the rules effective January
1, 2010, to replace the original Phosphorus Index (developed in 2001) with a new Phosphorus
Index (developed in 2009). [DJX8133 (New ANRC Rules, Title XXII, § 2201.4(B); OK Ex. 5914

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(Former ANRC Rules, Title XXII, § 2201)]. The revised Rules also delete all mention of the
protective rate as it once pertained to the land application of poultry litter. [DJX8133 (New
ANRC Rules, Title XXII, § 2202.3, Appendix B); OK Ex. 5914 (Former ANRC Rules, Title
XXII, § 2202.3, App. B)].
102. The protective rate under the former ANRC Rules did not recommend land application
of commercial fertilizer on fields that have an STP value of more than 100 lbs/acre. [OK Ex. 5914
(Former ANRC Rules, Title XXII, Appendix B (Table 3))]. In contrast, the protective rate
allowed application of three tons of poultry waste if the STP was between 1-100 lbs/acre, and 1.5
tons of poultry waste if the STP was between 1000 and 1100 lbs/acre. [OK Ex. 5914, (Former
ANRC Rules, Title XXII, Appendix B (Table 1)); TR at 5018:18-5019:10 (Johnson)]. In other
words, this protective rate allowed land application of waste up to 11 times the Arkansas
agronomic critical level of 100 STP. [TR at 5019:25-5020:3; 5006:3-6 (Johnson)].
103. A phosphorus index is a nutrient management tool that operates on the principle of
relative risk rather than absolute risk of nonpoint source pollution from phosphorus. [TR at
5088:13-17, 5190:20-5191:10 (Johnson)]. A phosphorus index does not scientifically determine
how much nonpoint source pollution from phosphorus will reach streams from individual sites and
waste applications. [TR at 5088:12-23 (Johnson)]. Nor does a phosphorus index identify the
actual risk associated with how much phosphorus will make it all the way to a stream. [TR at
5088:24-5089:3 (Johnson)]. A phosphorus index thus allows land application of poultry waste in
excess of the agronomic critical level and contributes to the elevation of STPs in areas where it is
used. [TR at 5089:4-10 (Johnson)].
104. The Arkansas phosphorus index applies to individual farms or fields; it is not applied at
the watershed level. [TR at 9597:1-5, 9597:9-14].

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105. Significantly, the Arkansas protective rate was by and large more restrictive than the
Arkansas phosphorus index. [TR at 9515:8 -12, 9599:7-14 (Smith)]. Monty Henderson, former
president of defendant George’s, testified that he became concerned the Phosphorus Index was not
restrictive enough after attending a February 16, 2006, BMPS, Inc. board meeting. [TR at
3121:22-3122:12 (Henderson)]. Minutes from that meeting (which was attended by
representatives of the Tyson Defendants, the George’s Defendants, the Cargill Defendants and
defendants Simmons and Peterson) provide a summary of discussion concerning the Arkansas
Phosphorus Index:
Contract growers in the Nutrient Surplus watersheds are following new Arkansas
regulations and getting plans using the Arkansas phosphorus index, which allows
them to put out more litter per acre than they had in the past. Most contract
growers will continue to be allowed to apply litter to their land under the new
regulations. Therefore, there’s little pressure on the producers in Arkansas to
export their litter.
[OK Ex. 3041 (emphasis added)]. Several years before this board meeting, Preston Keller, then
Director of Environmental Agriculture for defendant Tyson Foods, Inc., voiced his concerns about
the new index, stating in a June 18, 2002 email:
The phosphorus index that Arkansas developed is a very good management tool.
Their application rates are somewhat questionable. Example: A farmer’s field
with zero to five percent slope, good forage coverage and soil test of 800 pounds
per acre of P could apply two tons per acre of manure. A little high, in my opinion.
Are we helping the farmers or not?
[OK Ex. 3187].
106. Smith admitted that Arkansas phosphorus index has not stopped nonpoint source
pollution from poultry waste. [TR at 9597:15-25 (Smith)].

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G. Uses of the Waters of the IRW
107. As previously noted, the waters of the IRW in Oklahoma have been designated for
multiple beneficial uses, including recreation and aesthetics, drinking water, and fish and wildlife
propagation. [OK Ex. 5862 at p. 3].
108. Recreational activity has taken place occurring in the Illinois River corridor as long as
people have been there. [TR at 4336:20-4337:10; 4339:3-4342:12 (Caneday); OK Ex. 3116; OK
Ex. 3113]. Dr. Lowell Caneday described the Illinois River, Flint Creek and the Baron Fork as the
“premier float streams in Oklahoma” and testified they are the longest stretch of unimpounded
water in float streams in Oklahoma. [TR at 4346:19-4347:1 (Caneday)].
109. With respect to the Illinois River, Ed Fite (former administrator of the Oklahoma Scenic
Rivers Commission and current Vice President, Scenic Rivers Operations at Grand River Dam
Authority) estimated that close to 500,000 individuals visit annually. [TR at 796:1-3; DJX0147 at
0057]. Approximately 105,000 registered floaters floated the Illinois River in 2007. [OK Ex. 505;
TR 4348:2-8 (Caneday)]. Fite estimated that of the 400,000-500,000 people who visit the IRW
for recreation annually, approximately 150,000 to 180,000 are potential floaters and the remaining
numbers would be swimmers, fishermen, hunters, campers, day users, equestrian tours, mountain
bike rides, motorcycle poker runs, foliage tours, church baptisms and retreats, groups, and camps.
[TR 959:13-960:14 (Fite)].
110. The smaller streams of the IRW are also used for recreational purposes. [TR at 7190:1823 (Stevenson)].
111. A total of 2.6 million people visited Lake Tenkiller in 2007. [OK Ex. 498; TR at
4359:25-4360:9 (Caneday)]. This number included approximately 375,000 campers and 2.3
million day visitors. [OK Ex. 495; OK Ex. 496; TR at 4355:12-18; 4356:21-4357:3 (Caneday)].

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There were just under 350,000 boaters (including water skiers and scuba divers) on Lake Tenkiller
in 2007. [OK Ex. 497; TR at 4358:8-4359:1 (Caneday)].
112. Economic contributions from recreational activities on the waters of the IRW are
significant. Tourists and other visitors spend between $11 million to $16.5 million per year in the
basin. [OK Ex. 5862 at p. 3; DJX0147 at pp. iv, 32-33].
113. The recreation-based economy of the area relies on maintenance of aesthetically pleasing
water quality in IRW streams and rivers and Lake Tenkiller. [OK Ex. 5862 at p. 3; OK Ex. 3285
at p. 34].
114. The waters of the IRW are also used for drinking water. [TR at 339:1-4 (Tolbert)].
Approximately 18 public water systems draw water from the Oklahoma portion of the IRW. [TR
at 6086:18-6087:9 (Teaf); OK Ex. 5202]. Many of those systems draw water from Lake Tenkiller.
[TR at 339:18-25 (Tolbert); OK Ex. 5202].
115. The rivers and streams of the IRW have historically been the habitat to a broad range of
fish, including smallmouth, largemouth, Kentucky spotted, rock and brownie bass; green perch,
crappie and channel cats. [OK Ex. 3116]. Lake Tenkiller has historically been stocked with cool
water fish, including smallmouth bass, walleye and striped bass, although neither walleye nor
striped bass have fared well. [TR at 7767:2-21; 7781:18-7782:5 (Welch)].
H. Condition of the Waters of the IRW in Oklahoma
1. Rivers and Streams
a. High Phosphorus Levels and Algae
116. The State’s expert, Dr. Jan Stevenson, developed and directed an IRW stream sampling
program conducted in the summer of 2006, spring of 2007 and summer of 2007. [TR at 6986:7-

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7000:10 (Stevenson)].10 The summer 2006 sampling program focused largely on measuring
habitat condition, land use, nutrient concentration, algal biomass, diatom species composition and
benthic invertebrates. [TR at 6988:1-6993:1 (Stevenson); OK Ex. 4508]. The spring 2007
sampling program focused largely on filamentous green algae and benthic invertebrate responses
to it. [TR at 6993:2-6996:19 (Stevenson); OK Ex. 4468]. The summer 2007 sampling program
focused largely on nutrient concentrations and fish assemblages. [TR at 6996:20-7000:10
(Stevenson); OK Ex. 4477]. Each sampling program investigated phosphorus concentrations in
the streams. [TR at 7012:2-13 (Stevenson)].
117. Dr. Stevenson testified that algae occur in two major habitats in aquatic ecosystems:
benthic algae are attached to the bottom of the water body, and planktonic algae float in the water
column. [TR at 6964:19-6965:4 (Stevenson)].
118. The two primary nutrients for algal growth are nitrogen and phosphorus. [TR at
7000:25-7001:2 (Stevenson)]. In most freshwater ecosystems, phosphorus is the limiting nutrient.
[TR at 7001:22-23 (Stevenson)]. “Limiting” refers to Liebig’s law of the minimum, that is, the
nutrient which is in lowest relative supply constrains the growth of algae. [TR at 7001:5-9
(Stevenson); 7376:20-25 (Cooke); 983:11-16 (Phillips)].
119. Algae have a nitrogen to phosphorus atomic ratio of 16 to 1 in their tissues; in other
words, they have 16 atoms of nitrogen for each atom of phosphorus. [TR at 7001:9-12

10

Dr. Stevenson holds a Ph.D. in natural resources and the environment from the University of Michigan.
[TR at 6962:9-20]. His Ph.D. research focused on benthic algae. [TR at 6965:5-7]. Dr. Stevenson is a
professor at Michigan State University. [TR at 6965:23-6966:2]. He served from 2007-2008 as the
president of the North American Benthological Society. [TR at 6971:21-6972:2]. He has published more
than 100 articles in peer-reviewed journals. [TR at 6971:1-20; 6973:8-6974:8; 6976:21-25]. In addition,
Dr. Stevenson is the author of the section of the EPA bioassessment protocols addressing methods that
should be used by federal and state agencies to assess algae in streams. [TR at 6975:16-6976:10]. He has
significant professional experience in studying nutrient and algal impacts on streams. [TR at 6972:146978:10]. Dr. Stevenson was retained by the State as an expert. [TR at 6978:11-13].

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(Stevenson)]. If nitrogen to phosphorus ratios are greater than 16 to 1, then nitrogen is in “luxury
supply,” i.e., there is excess nitrogen in the environment, and phosphorus is the limiting nutrient.
If the nitrogen to phosphorus ratio is less than 16 to 1, then phosphorus is in luxury supply and
nitrogen tends to be limiting. [TR at 7001:13-21 (Stevenson)]. The nitrogen to phosphorus ratios
in the Illinois River are almost always well above 16 to 1. [TR at 7001:23-25 (Stevenson)].
Therefore, phosphorus is the limiting nutrient in the Illinois River. [TR at 7001:25-7002:2
(Stevenson)].
120. The water column of an aquatic ecosystem typically contains three different fractions of
phosphorus: dissolved inorganic phosphorus (also referred to as PO4, phosphate or soluble
reactive phosphorus), dissolved organic phosphorus and particulate phosphorus. [TR at 7003:247004:5 (Stevenson)].
121. All three forms of phosphorus are available for algae to use in the aquatic ecosystem.
[TR at 7004:16-19 (Stevenson)]. Dissolved inorganic phosphorus—the primary form of
phosphorus available for algae growth—can be taken up immediately by algae across some
membranes. [TR at 7004:20-7005:2 (Stevenson); 8900:7-13 (Connolly)]. Most algae cannot take
up dissolved organic phosphorus directly. Rather, such algae secrete an enzyme called
phosphatase that cleaves the phosphate group off the organic phosphorus molecule. [TR at
7005:3-11 (Stevenson)]. Thus, when inorganic phosphate becomes depleted in the water column,
algae will start breaking down dissolved organic phosphorus for use. [TR at 7005:12-18
(Stevenson)]. Particulate phosphorus is composed of fractions of dead organic matter or algal
cells themselves which are floating in the water column and get entangled in the benthic algae.
[TR at 7005:20-25 (Stevenson)]. Bacteria then breaks the particulate phosphorus down into
inorganic phosphorus for use by the algae. [TR at 7005:20-7006:3 (Stevenson)]. Particulate

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phosphorus can often be an important source of phosphorus, particularly with respect to sustaining
thick algal mats. [TR at 7006:3-6 (Stevenson)]. Additionally, particulate phosphate can be
consumed by other organisms (meiofauna and aquatic invertebrates), broken down and partially
digested, then excreted into the benthic habitat, where it can be entangled in the benthic algae.
[TR at 7006:7-21 (Stevenson)].
122. Because all three forms of phosphorus are available for algae to use in the aquatic
ecosystem, Dr. Stevenson considered them all important in his investigation in characterizing
phosphorus availability. [TR at 7007:25-7008:5 (Stevenson)]. He used total phosphorus as the
best indicator of phosphorus availability in the water. [TR at 7008:6-9 (Stevenson)]. Dr.
Stevenson testified the EPA and his colleagues concur with this approach. [TR at 7008:10-18
(Stevenson)]. The defendants’ expert, Dr. Connolly, agreed that the EPA focused “[a]t a gross
scale” on total phosphorus as a benchmark for water quality. [TR at 9366:16-19 (Stevenson)].
123. The summer 2006 sampling program revealed total phosphorus concentrations ranging
from 0.008 mg/L to 0.648 mg/L, with a median concentration of 0.076 mg/L, and 25th and 75th
quartiles of 0.037 mg/L and 0.118 mg/L, respectively. [TR at 7013:3-7014:10 (Stevenson)]. The
spring 2007 sampling program revealed total phosphorus concentrations ranging from 0.007 mg/L
to 1.254 mg/L, with a median concentration of 0.057 mg/L, and 25th and 75th quartiles of 0.026
mg/L and 0.113 mg/L, respectively. [TR at 7014:13-18 (Stevenson)]. The summer 2007
sampling program revealed total phosphorus concentrations ranging from 0.007 mg/L to 0.945
mg/L, with a median concentration of 0.067 mg/L, and 25th and 75th quartiles of 0.029 mg/L and
0.142 mg/L, respectively. [TR at 7015:1-5 (Stevenson)].

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124. Similarly, defendants’ retained expert, Dr. Connolly, found that phosphorus
concentrations in the Illinois River are in the range of 0.100 mg/L. [TR at 9320:13-15
(Connolly)].
125. Dr. Stevenson testified that the phosphorus concentration in the rivers and streams of the
IRW is high compared to phosphorus concentrations in streams in similar geologies and climates
in the United States. In a study of streams in Kentucky and Michigan, and another study of
streams in Pennsylvania, West Virginia, Virginia and Maryland, phosphorus concentrations in
background natural conditions were about .01 mg/L. [TR at 7016:14-7017:10 (Stevenson)]. Two
to three percent of the streams in those areas had phosphorus concentrations greater than .1 mg/L.
[TR at 7017:11-16 (Stevenson)]. In the IRW, in contrast, more than 25 percent of the streams had
phosphorous concentrations higher than .1 mg/L. Dr. Stevenson testified that “the phosphorus
concentrations in the Illinois River Watershed are higher than anyplace that I’ve seen . . . in
similar geologic settings.” [TR at 7017:19-22 (Stevenson)].
126. During the spring and summer of 2007, the five sampling stations on the Flint and
Illinois River that are within the scenic river zone had total phosphorus concentrations in excess of
the .037 mg/L limit for scenic rivers. [TR at 7015:6-19 (Stevenson)]. Looking across the board at
the results of all three sampling programs, 75 percent of the streams sampled in the summer of
2006 had phosphorus concentrations in excess of the .037 mg/L scenic river standard and in the
spring and summer of 2007, 64 percent and 62 percent, respectively, of all streams sampled had
concentrations in excess of .037 mg/L. [TR at 7016:4-13 (Stevenson)].
127. Dr. Stevenson’s conclusions concerning the scope and severity of phosphorus pollution
in the IRW are corroborated by the findings of the USGS. In a 2006 report, the USGS found that

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the rivers and streams of the IRW have higher total phosphorus concentrations in comparison to
other relatively undeveloped watersheds in the United States:
Estimated mean flow-weighted phosphorus concentrations at the stations in the
basin were more than 10 times greater than the median flow-weighted
concentrations (0.022 mg/L) and were consistently greater than the 75th percentile
of flow-weighted phosphorus concentrations in relatively undeveloped basins of the
United States (0.037 mg/L). In addition, flow-weighted phosphorus concentrations
in 2000-2002 at all Illinois River stations and at Flint Creek were approximately
equal to or greater than the 75th percentile of all National Water-Quality
Assessment program stations in the United States (0.29 mg/L).
[OK Ex. 5862 at p. 20 (internal citations omitted)].
128. The State’s 2008 Water Quality Assessment Integrated Report (“Integrated Report”)
prepared by ODEQ and submitted to the EPA pursuant to sections 303(d) and 305(b) of the Clean
Water Act, which listed impaired waters of the State, also supports Dr. Stevenson’s conclusion
concerning phosphorus loading of the waters of the IRW. [OK Ex. 6008, App. C]. The Integrated
Report, which was approved by the EPA, lists seven segments of rivers or streams of the IRW in
Oklahoma with aesthetic impairment caused by total phosphorus:


a 7.68-mile segment of the Illinois River, segment code OK121700030010_00;



a 31.68-mile segment of the Illinois River, segment code OK121700030080_00;



a 15.65-mile segment of the Illinois River, segment code OK121700030280_00;



a 5.18-mile segment of the Illinois River, segment code OK12170030350_00;



a 23.30-mile segment of the Illinois River, segment code OK121700050010_00;



a 1.60-mile segment of Flint Creek, segment code OK121700030290_00; and



a 7.75-mile segment of Flint Creek, segment code OK121700060010_00.

[OK Ex. 6008, App. C at C-15, C-16; TR at 3493:15-3496:12, 3498:12-3500:8 (Strong)].
129. The 2007 Beneficial Use Monitoring Report (“BUMP”) for the Illinois River, Baron
Fork Creek and Flint Creek also confirms that these water bodies are not meeting water quality
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standards. The aesthetics beneficial use is impaired for total phosphorus and total phosphorus is
being exceeded for each of these bodies. [OK Ex. 5594].
130. The court finds that phosphorus concentrations in streams and rivers of the IRW in
Oklahoma are elevated beyond natural or background levels in violation of Oklahoma’s
antidegradation standards for these waters. Those standards prohibit degradation of water quality
in the IRW. See Okla. Admin. Code § 785:45-3-2(a). The court further finds that phosphorus
concentrations in the Illinois River, Flint Creek and Baron Fork Creek exceed the total phosphorus
criterion applicable to scenic rivers, and the aesthetics beneficial use is impaired for total
phosphorus in violation of Oklahoma water quality standards. See Okla. Admin. Code § 785:455-19(c)(2).
b. Phosphorus-Induced Algae Biomass and its Consequences
131. The State’s experts testified about ways in which increases in algae biomass impact the
waters of the IRW.
(1) Aesthetics
132. Algae biomass in the water column is determined with reference to the cell volume of
chlorophyll per unit volume of water, while algae biomass on the stream bottom is determined
with reference to the weight of algae per unit area. [TR at 7022:4-14 (Stevenson)].
133. Three basic types of algae are found in the Illinois River streams: cyanobacteria (also
referred to as “blue-green algae”), cyanobacteria diatoms (gold and brown algae), and filamentous
green algae. [TR at 7022:16-7023:5 (Stevenson); OK Ex. 4449].
134. The EPA recommends using filamentous green algae cover as an indicator of impaired
use for a stream. [TR at 7033:25-7034:5 (Stevenson)].

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135. At background or natural total phosphorus concentrations, filamentous green algae cover
is typically 5 to 10 percent. [TR at 7019:11-16 (Stevenson)]. When total phosphorus
concentrations increase, there is a dramatic increase in filamentous green algae. [TR at 7019:1719 (Stevenson)]. Dr. Stevenson considers filamentous green algae cover of 20 percent to be
nuisance level. [TR at 7020:6-12 (Stevenson)]. Dr. Connolly testified that studies from various
agencies and researchers conclude that between 20 to 30 percent algae coverage is a nuisance.
[TR at 9316:9-19 (Connolly)].
136. Filamentous green algae cover on IRW stream sites sampled in spring 2007 ranged from
0 to 91 percent, with a median of 20 percent. [TR at 7038:6-25 (Stevenson)]. That is to say, using
20 percent as the benchmark for nuisance, half of the streams sampled had nuisance levels of
algae. Further, 25 percent of the IRW stream sites had greater than 50 percent filamentous green
algae cover. [TR at 7039:22-7040:1 (Stevenson)]. Thus, using 30 percent as the benchmark for
nuisance level, some 35 percent of the stream sites sampled in the IRW had nuisance levels of
algae. [TR at 9319:5-15 (Connolly)].
137. There is a strong relationship between phosphorus concentrations in streams and algal
biomass in those streams. [TR at 7062:6-15 (Stevenson)]. Dr. Stevenson testified the total
phosphorus threshold for dramatic benthic algae growth in IRW streams is at concentrations of
0.027mg/L. [TR at 7070:4-17 (Stevenson)]. Streams with phosphorus concentrations up to the
low .02s of mg/L typically had algal biomass averaging 4 to 5 percent of the stream bottom. [TR
at 7070:18-22 (Stevenson)]. Once phosphorus concentration increased above .027 mg/L, the
average cover of filamentous green algae on the bottom of streams jumped to 36 percent. [TR at
7070:23-7071:7 (Stevenson); OK Ex. 4473].

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138. Dr. Stevenson concluded that 83 percent of the third order rivers and streams of the IRW
were injured for aesthetics due to having total phosphorous concentrations of 0.027 mg/L or
higher. [TR at 7159:5-8 (Stevenson)].11
139. Dr. Stevenson’s finding of significant benthic algae coverage of IRW rivers and streams
is confirmed by the testimony of other witnesses. The testimony before this Court established that
the rocks on the bottom of the Illinois River are covered with green and brown algae. [TR at
610:17-612:6 (Hilsher)]. Similarly, Ed Fite testified that, in April, May and the summer months of
2006, he observed algae, scum and unclear water on stream segments in IRW sub-basins that do
not receive discharges from wastewater treatment plants. [TR at 694:2-20 (Fite)].
140. The USGS has likewise concluded that “[e]levated phosphorus concentrations promote
algae growth in streams” and “[p]hosphorus levels in streams in the basin have resulted in the
growth of excess algae, which have degraded the aesthetic benefits of water bodies in the basin,
especially in the Illinois River and Lake Tenkiller.” [OK Ex. 5862 at p. 3].
(2) Dissolved Oxygen Concentrations
141. Increases in phosphorus concentrations stimulate increases in algae biomass, and
increases in algae biomass generate low dissolved oxygen conditions. [TR at 7091:8-13
(Stevenson)].
142. Algae are photosynthetic organisms. During the day, they use light and carbon dioxide
in the process of photosynthesis to create sugars, and they give off oxygen, which oxygenates the
water. At night, algae do not photosynthesize. So, at night, algae use—but do not produce—
oxygen. [TR at 7020:23-7021:12 (Stevenson)]. Thus, oxygen concentrations in streams
11

Although Dr. Stevenson attempted to measure algal biomass in water columns by measuring chlorophyll
concentrations, he was unable to do so because a laboratory incorrectly analyzed the chlorophyll-a samples
he submitted. [TR at 7060:7-7061:1 (Stevenson)].

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fluctuate—going up in the day with photosynthesis, and going down at night with respiration. [TR
at 7086:7-10 (Stevenson)]. As a result, large masses of algae in a stream cause dramatic decreases
in dissolved oxygen concentration at night. [TR at 7021:13-15 (Stevenson)].
143. Low dissolved oxygen stresses fish, reduces their reproductive capacities, and negatively
affects their health. It eliminates dissolved oxygen sensitive species from their habitats. [TR at
7086:11-7087:19 (Stevenson)].
144. High nutrient concentrations generate high algal biomasses, which support large amounts
of bacteria; and the high algal biomasses and bacteria can consume enough oxygen at night that
dissolved concentrations can go below critical levels. Fish and “invertebrate assemblages” can be
impaired, and fish-kills can result. [TR at 7087:6-18 (Stevenson)].
145. Oklahoma’s water quality standards address dissolved oxygen levels. [See Okla. Admin.
Stat. § 785:45 (App. G)]. The standard for dissolved oxygen levels in cool water streams from
June 1 through October 15 is 6 mg/L. [Id.]
146. The summer 2006 sampling results revealed that 30 out of 69 stream samples had
dissolved oxygen levels of less than 5 mg/L. [TR at 7089:8-15 (Stevenson)].
147. Dr. Stevenson also investigated a fish kill in April 2006 near Round Hollow on the
Illinois River. Crews documented the high and low oxygen concentrations and took photographs
at the site of the kill [TR at 7092:14-24 (Stevenson)]. His investigation revealed large amounts of
algae biomass and dissolved oxygen levels of between 1 mg/L to 2.5 mg/L. [OK Ex. 4451
(photographs); TR at 7092:25-7093:17 (Stevenson)]. Dr. Stevenson concluded that low dissolved
oxygen was the likely cause of the fish kill. [TR at 7096:4-12 (Stevenson)].
148. The State’s 2008 Integrated Report corroborates Dr. Stevenson’s conclusion that low
dissolved oxygen levels are impairing fish and wildlife propagation in cool water aquatic

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communities on the rivers and streams of the IRW in Oklahoma. [OK Ex. 6008 at App. C; TR at
3492:8-14, 3492:22-25; 3493:15-3496:12; 3498:12-3500:8 (Strong)].
(3) pH
149. Dr. Stevenson testified that pH levels are one of the most important environmental
variables affecting biodiversity in rivers and streams; changes in pH levels can adversely affect
fish, invertebrates and algae in rivers and streams. [TR at 7101:4-20 (Stevenson)].
150. When algae photosynthesize, they consume carbon dioxide, which causes a shift in the
carbonate equilibrium in the water, thereby alkalizing the water. [TR at 7102:1-7 (Stevenson)].
Background levels of pH in streams of the IRW are 8 to 8.5. [TR at 7104:6-9 (Stevenson)].
151. Sampling data revealed that with increased algae biomass in IRW streams there was also
an increase in high pH values. [TR at 7103:16-24 (Stevenson)]. Dr. Stevenson testified that the
frequency of pH values found that were above 9 are not natural and are related to high algal
biomasses. [TR at 7104:10-13 (Stevenson)].
152. Oklahoma’s water quality standards address pH, requiring that it should be between 6.5
and 9, unless it naturally occurs outside that range. [TR at 7102:8-15 (Stevenson)].
(4) Aquatic Habitat
153. The natural condition of an IRW stream is bare rock. When large masses of filamentous
green algae attach to the rock, it disrupts the natural habitat for fish, invertebrates and other algae
that live among the rocks. [TR at 7026:4-16 (Stevenson)]. As discussed above, increased algae
can also disrupt the aquatic habitat by causing changes in dissolved oxygen levels and pH. [See
FF ##141-152].
154. Dr. Stevenson concluded the changes in natural condition of the rivers and streams of the
IRW have caused a 20 percent reduction in the number of fish species in those rivers and streams.

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[TR at 7132:8-7133:9 (Stevenson)]. Actual numbers of fish belonging to carnivorous species have
been reduced by 70 percent. [TR at 7133:10-7134:1 (Stevenson)].
155. Significant detrimental impacts on fish numbers and species diversity occur in waters
such as those in the IRW when total phosphorus concentrations reach or exceed 0.060 mg/L. [TR
at 7139:7-18 (Stevenson)]. Using that phosphorus threshold criteria, about 47 percent of the third
order rivers and streams in the IRW have been injured by a reduction in fish biodiversity. [TR at
7159:11-17 (Stevenson)]
(5) Water Quality
156. The State’s expert, Dr. Christopher Teaf,12 testified that disinfection byproducts (DBPs)
are chemicals formed during the disinfection of drinking water, typically conducted by
chlorination processes which kill the bacteria. [TR at 6078:11-17 (Teaf)]. Various factors
influence the amount of DBPs created during the disinfection of drinking water, including the
amount of organic carbon in the raw water, pH level, water temperature, chlorine contact time and
whether the water has been pretreated before chlorination. [TR at 6079:8-21 (Teaf)].
Eutrophication—a process that introduces higher levels of organic carbon into the raw water—
causes higher levels of DBPs. [TR at 6079:22-6080:5 (Teaf)].
157. DBPs are a human health concern because of their carcinogenic qualities and also
because they present developmental and reproductive risks such as embryotoxity. [TR at
6085:3-20; 6100:9-6101:11 (Teaf); 7462:20-22 (Cooke)].

12

Dr. Teaf holds a Ph.D. in toxicology from the University of Arkansas. [TR at 6039:6-12]. He is board
certified by the Academy of Toxicological Sciences. [TR at 6046:13-16]. He has been on the faculty at
Florida State University for 30 years, is a faculty member at the Center for Biomedical and Toxicological
Research at the university, and since 1983, has served as the associate director of the center. [TR at
6040:1-10, 6040:22-26]. Dr. Teaf has a toxicology and risk assessment consulting firm, Hazardous
Substance and Waste Management Research. [TR at 6044:8-6045:6].

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158. Until 2012, DBPs were regulated by the Stage 1 DBP Rule, which set the maximum
contaminant level (“MCL”) at 80 micrograms per liter for trihalomethanes and 60 micrograms per
liter for haloacetic acids. [TR at 11124:23-11125:12 (Gibb)]. The Stage 1 DBP Rule was
determined by the EPA to be inadequate to protect human health. [TR at 6083:10-12 (Teaf)].
Therefore, in 2006, the EPA promulgated the Stage 2 DBP Rule [TR at 6083:12-13 (Teaf)], which
Oklahoma adopted effective in 2012. [TR at 6083:6-15; 6097:21-25 (Teaf)].
159. The Stage 2 DBP Rule includes a maximum contaminant level goal (“MCLG”) for
DBPs. [TR at 6092:11-21 (Teaf)]. The MCLG is a health-based standard related to the potential
for causing cancer, after which cost and feasibility must be applied to determine what the
maximum containment level will be. In addition to the MCLG, there is a separate risk-based
screening level criterion. [TR at 6092:23-6093:15 (Teaf)]. While the risk-based screening level
criterion is not part of the Stage 2 DBP Rule, it is used by toxicologists as a starting point for
evaluating potential health risk. [TR at 6093:2-15 (Teaf)]. It represents a baseline or one-in-one
million chance risk that found the starting point for screening evaluations at all potential drinking
supplies. [TR at 6093:10-15].
160. Dr. Teaf evaluated the presence of DBPs in water treatment systems in the IRW. First,
he evaluated the total organic carbon loading found in the State’s edge-of-field samples, and found
that they were higher in edge-of-field samples than in background samples. [TR at 6080:19-25
(Teaf)]. Dr. Teaf testified that the organic carbon in the water, whether it comes from algae or
from direct, dissolved and particulate organic carbon, is chlorinated and forms the DBPs. [TR at
6081:15-19 (Teaf)].
161. Next, Dr. Teaf evaluated data from ODEQ reporting the values of various DBPs in the
treated water produced by the water treatment plants in the IRW (i.e., tap water). [TR at 6086:18-

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6087:19, 6094:6 (Teaf); OK Ex. 5212].13 He found that a little over 90 percent of the ODEQ
values exceeded the risk-based screening level criterion; that 55.5 percent of the ODEQ values
exceeded the risk-based screening level criterion for the DBP dibromochloromethane; that 92.5
percent of the ODEQ values exceeded the risk-based screening level criterion for the DBP
bromodichloromethane; that 11.4 percent of the ODEQ values exceeded the Stage 2 Rule MCL for
the DBP total trihalomethane (“TTHM”), and that 11.2 percent of the ODEQ values exceeded the
Stage 2 Rule MCL for the DBP haloacetic acids (“HAA5”). [TR at 6093:22-6096:15; 6097:166099:9 (Teaf); OK Ex. 5212].
162. Finally, Dr. Teaf evaluated DBP data gathered by Camp Dresser & McKee from tap
water distribution points in water systems in the IRW. [TR at 6101:12-6102:16 (Teaf)]. He
testified that he found numerous exceedances of the risk-based screening level criterion or MCLG
for various DBPs in the treated water he evaluated. [TR at 6109:9-6111:17 (Teaf); OK Ex. 5213].
163. Based upon his investigation, Dr. Teaf concluded that “the breadth both in time and in
space of the detected concentrations, the magnitude of those concentrations and the significance of
the substances renders this to be a significant health issue that needs to be addressed.” [TR at
6117:5-20 (Teaf)].
164. Defendants’ expert, Dr. Michael McGuire,14 criticized Dr. Teaf’s comparison of
concentration levels of DBPs in IRW water supplies with concentration standards that were lower

13

Dr. Teaf’s chart compares concentration levels of chloroform against both MCLG standards and riskbased standards. According to Dr. McGuire, there is no MCL standard for chloroform. [TR at 11027:1215]. Dibromochloromethane and bromodichloromethane concentrations are compared against only risk
based standards. TTHM and HAAS concentrations are compared with MCL standards. [OK Ex. 5212].
14
Dr. McGuire received a Ph.D. in environmental engineering from Drexel University. [TR at 10987:1218 (McGuire)]. He has worked as an engineer for the Philadelphia Water Department, and with the USGS
sampling watersheds and investigating urbanization of streams, as well as with Brown and Caldwell
Consulting Engineers in California on wastewater, industrial waste cleanup and surveys. [TR at 10988:710989:21 (McGuire)]. He was a project engineer/water quality engineer for the Metropolitan Water

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than either MCLs set by the EPA or regulatory requirements for water utilities in Oklahoma at the
time. [OK Ex. 5212; TR at 11026:2-16 (McGuire)]. Further, the reported violations were based
on single exceedances, when they should be based on running annual averages from the data
produced by the water utilities. [TR at 11029:5-12 (McGuire)].
165. Dr. McGuire testified that when EPA’s MCL standards were applied, there were only a
total of 24 exceedances for all 18 facilities over the time period of 1997 to 2008. [TR at 11030:1519 (McGuire)]. The exceedances occurred at only six of the 18 facilities, and 67 percent of the
exceedances occurred at only three utilities. [TR at 11031:3-14 (McGuire)]. Twelve of the
facilities had no exceedances. [TR at 11031:15-19 (McGuire)].
166. In light of Dr. McGuire’s testimony, the court finds Dr. Teaf’s analysis of DBP levels in
public water supplies in the IRW to be of slight value, and accords it little weight. Thus, the court
finds that the State has failed to establish that land based application of poultry litter in the IRW
has resulted in exceedances in DBP levels that pose significant risks to human health.
(6) Personal Observation
167. Ed Fite, who both sides agree is one of the most knowledgeable persons about the rivers
and streams of the IRW, disagrees that there have been improvements in the condition of the
Illinois River or the Baron Fork, [TR at 785:1-786:7 (Fite)] and the Court finds Mr. Fite’s
testimony to be entirely credible.
c. Summary
168. Based upon the foregoing factual findings, the court finds that the rivers and streams of
the IRW have elevated phosphorus concentration levels above natural or background levels. The

District of Southern California, where he headed the water quality laboratory. [TR at 10990:14-10991:13
(McGuire)]. He is president of Michael J. McGuire, Inc., which provides consulting services to water
utilities on water quality and treatment issues. [TR at 10987:6-11 (McGuire)].

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elevated phosphorus concentration levels have resulted in significant increases in the algae
biomass in the rivers and streams of the IRW. The increases in algae biomass have impacted the
aesthetics of the rivers and streams of the IRW.
169. The court finds that increases in algae biomass have resulted in lowered dissolved
oxygen concentrations, higher pH, and other adverse effects on the aquatic habitat of the rivers
and streams of the IRW, and these adverse effects have injured fish communities in the rivers and
streams.
170. The court further finds that phosphorus concentrations in excess of natural or background
levels have caused degradation of water quality in the rivers and streams of the IRW in Oklahoma
in contravention of Oklahoma’s antidegradation standards in Okla. Admin. Code § 785:45-519(c)(2) of Oklahoma’s Water Quality Standards.
171. The court finds that phosphorus concentrations in excess of background or natural levels
have caused excessive growth of periphyton, phytoplankton or aquatic macrophyte communities
in the rivers and streams of the IRW which impairs the aesthetics, fish and wildlife beneficial uses
in violation of Okla. Admin. Code § 785:45-5-9(d).
172. Further, the court finds that as a result of phosphorus concentrations in excess of natural
or background levels in the rivers and streams of the IRW in Oklahoma, these rivers and streams
contain floating materials and suspended substances that produce objectionable color and
materials that settle to form objectionable deposits in contravention of Section 785:45-5-19(a) and
(b).
173. The court finds the State has failed to prove that increases in the amounts of algae and
organic carbon in the waters and streams of the IRW caused by land application of poultry litter

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have resulted in the creation of DBPs in the IRW’s public water treatment facilities and supplies
that present an increased risk to human health.
2. Lake Tenkiller
a. Trophic State
174. The State’s expert, Dr. G. Dennis Cooke,15 testified that “[t]rophic state” is an estimation
of the degree of biological production of a lake or reservoir. [TR at 7348:7-9 (Cooke)]. There are
three types of trophic states: oligotrophic, mesotrophic and eutrophic. There are no distinct
breaks between the states; rather, they represent a continuum. [TR at 7348:17-21 (Cooke)].
175. Oligotrophic reservoirs have very low inflows of phosphorus to the reservoir. [TR at
7349:20-25 (Cooke)]. As a result, such reservoirs have low phosphorus concentrations, and the
water is clear and has high transparency. There is an absence of scum-forming or bloom-forming
blue-green algae or cyanobacteria. Productivity of algae is very low, as is total organic carbon,
and there is a lot of dissolved oxygen in the system from surface to bottom. [TR at 7349:5-11
(Cooke)]. The sediments of an oligotrophic reservoir are nutrient poor and there is little or no
sediment phosphorus release. [TR at 7349:1-19 (Cooke)].
176. The next trophic state on the continuum—mesotrophy—is one in which the reservoir has
more biological productivity than an oligotrophic reservoir. “Productivity” means the rate at
which algae biomass is produced. [TR at 7350:1-15 (Cooke)].

15

Dr. Cooke received a Ph.D. from the University of Iowa Department of Zoology with a major in
limnology and a minor in developmental biology, after which he was a post-doctoral fellow at the
University of Georgia for two years, sponsored by the National Institute of Health and the National
Aeronautics and Space Administration. [TR at 7334:2-24]. He was a professor at Kent State University
from 1967-2003, where he taught and conducted research on eutrophication in lakes and reservoirs. [TR at
7335:23-7337:5]. He was the founding president of the North American Lake Management Society and
associate editor of its journal. [TR 7342:1-9].

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177. In the third stage of the continuum—eutrophy—the reservoir has even more biological
productivity and very high amounts of algae. [TR at 7350:16-19 (Cooke)]. A eutrophic reservoir
has no dissolved oxygen in the bottom waters, and possibly none even in middle zone waters. The
water is not clear and transparency is low. It is characterized by abundant blue-green algae. The
rate at which oxygen is consumed by bacterial growth in the eutrophic reservoir is high—a
condition called “aerial hypolimnetic oxygen deficit” or “AHOD.” [TR at 7350:19-7351:12
(Cooke)]. Eutrophic systems have a very low population—if any—of cool water game fish such
as smallmouth bass and walleye, and may have an abundant population of warm water game fish
such as largemouth bass and bluegills. [TR at 7351:13-19 (Cooke)]. The lake sediments are also
greatly enriched with phosphorus. [TR at 7351:20-24 (Cooke)].
178. Dr. Cooke, a limnologist, testified that the key difference between the three stages—
oligotrophic, mesotrophic and eutrophic—is their phosphorus inflow concentrations. [TR at
7351:25-7352:4 (Cooke)].
179. Eutrophication is the addition of nutrients, organic matter, and silt to lakes and reservoirs
at a rate that increases biological production and sometimes leads to a decrease in volume of the
system. [TR at 7347:24-7348:3 (Cooke)]. Eutrophication can be either natural or cultural.
Natural eutrophication means weathering of the land, for example, when rain falls on land, it runs
off into streams and, from there, into the reservoir, and takes with it some soil. It may take with it
leaves and sticks and small animals. Over time, the rocks begin to dissolve, and that material
enters the reservoir. [TR at 7352:5-19 (Cooke)]. The rate of natural eutrophication is measured in
centuries, or possibly millennia. [TR at 7352:19-21 (Cooke)]. Cultural eutrophication involves
human activities that lead to runoff in the watershed, including runoff from urban areas, streets,
parking lots; the discharge of wastewater treatment plants; and agricultural activities that produce

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nutrients, such as row crop agriculture or animal agriculture. [TR at 7352:22-7353:3 (Cooke)].
Cultural eutrophication, which can occur within decades, requires that nutrient materials flow into
a reservoir at very high rates. [TR at 7353:4-8 (Cooke)].
180. Reservoirs differ from natural lakes in that they always have a one-way flow of water
through them, with inflow from rivers and/or streams and outflow over or through a dam. [TR at
7353:19-7354:8; 1754:16-18 (Cooke)]. In contrast, lakes do not have a one-way flow of water and
some lakes may not even have a visible outlet. [TR at 7354:18-20 (Cooke)]. The one-way flow
characteristic is an important factor in causing eutrophy. [TR at 7354:23-25 (Cooke)].
181. Reservoirs have three zones: the riverine zone, the transition zone and the lacustrine
zone. [TR at 7358:15-19 (Cooke)]. The water area where the river water enters the reservoir is
called the “riverine zone.” [TR at 7354:12-14 (Cooke)]. The riverine zone is loaded with
nutrients, silt and/or organic matter, including algae, if it is nutrient rich. [TR at 7354:25-7355:4
(Cooke)]. As the flowing water hits the wider (and possibly deeper) part of the reservoir, the
velocity of water slows down and materials such as nutrients, silt and organic matter begin to sink.
[TR at 7355:4-9 (Cooke)]. In this area, known as the transition zone, there is less and less nutrient
concentration. [TR at 7355:10-14 (Cooke)].
182. The plunge point in a reservoir is where the velocity of water has slowed down
sufficiently that the pull of gravity is greater than the rate of water flow, so large quantities of
materials fall out of the water. [TR at 7355:24-7356:5 (Cooke)]. The water itself also falls with
the materials, because river water is cooler—and therefore heavier—than reservoir water. [TR at
7356:14-17 (Cooke)]. The water plunges to a depth equal to its weight, which generally is in the
middle zone of the reservoir. [TR at 7356:18-20 (Cooke)].

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183. The water plunging into lower waters (the “hypolimnion”) of the lake is high in organic
matter, algae and wastewater treatment plant discharges, all of which are food for bacteria. [TR at
7356:25-7357:10 (Cooke)]. The bacteria eating these substances use dissolved oxygen in the
respiration process. [TR at 7357:10-13, 7357:18-23 (Cooke)].
184. Not only is the tongue of water flowing down the reservoir low in dissolved oxygen, but
the water beneath it has little to no dissolved oxygen. [TR at 7357:14-17 (Cooke)]. Deeper levels
of a reservoir are completely isolated from the atmosphere, and re-aeration cannot occur there.
Nor is there sufficient light for photosynthesis to occur at that level. Therefore, when organic
matter falls into deep water, the dissolved oxygen is consumed in a short time. [TR at 7358:4-9
(Cooke)].
185. The lacustrine zone is the deep open water of the reservoir, where most materials have
fallen out and concentrations of phosphorus are low relative to the riverine and transition zones.
[TR at 7358:20-7359:3 (Cooke)]. Less algae is produced and the water is clearer in the lacustrine
zone. [TR at 7359:4-5 (Cooke)].
186. These general reservoir descriptions and processes occur in Lake Tenkiller. [TR at
7358:10-14, 7354:9-14 (Cooke)].
187. Down the length of a reservoir is a gradient of conditions that can range from extremely
eutrophic in the upper reservoir to much less eutrophic by the time the water reaches the dam.
[TR at 7359:6-10 (Cooke)]. Thus, while a true lake might have a “representative zone,” no single
area or zone of a reservoir can represent the entire reservoir due to the gradient. [TR at 7359:1118 (Cooke)]. Dr. Cooke identified two types of reservoir gradients. One runs the length of the
reservoir from the riverine zone to the lacustrine zone at the dam. [TR at 7359:19-23]. The other
gradient runs from the surface to the bottom; surface waters are loaded with dissolved oxygen,

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they are warm, and the sun shines in them. Bottom waters, in contrast, have no dissolved oxygen,
no fish, and little life, except microbes. [TR at 7359:24-7360:4 (Cooke)].
188. Dr. Cooke testified that in order to properly evaluate the trophic status of a reservoir, one
must sample along both gradients, i.e., along the length and from surface to bottom of the
reservoir. [TR at 7360:17-21 (Cooke)]. Trophic state analysis of a reservoir should be done from
late spring to early fall, because this is the time of year when the reservoir is most responsive to
nutrients. [TR at 7370:5-24 (Cooke)].
189. Parameters used to determine the trophic condition of a lake or reservoir include
chorophyll-a, secchi disc depth, total phosphorus, total nitrogen, aquatic macrophytes, organic
nitrogen, turbidity, lake user surveys, and hypolimnetic oxygen depletion rates. [OK Ex. 0578 at
p. 17].
190. In connection with their analysis of the trophic state of Lake Tenkiller, the State’s experts
undertook a sampling program to supplement extant data. [TR at 7366:15-24 (Cooke)]. They
sampled Lake Tenkiller in the summers of 2005-2008, from late May until mid-September. [TR at
7366:25-7367:3; 7371:4-8 (Cooke)]. Samples were taken at four stations along the length of the
reservoir. [OK Ex. 705; TR at 7368:15-7369:4 (Cooke)]. The stations were located near stations
used in earlier studies by governmental agencies, so that the data would be as directly comparable
to the previous studies as possible. [TR at 7369:10-20 (Cooke)].
191. For purposes of comparison, the State’s experts also undertook a sampling program at
Broken Bow Reservoir, which is in the same eco-region as Lake Tenkiller, but is not closely
impacted by phosphorus. [TR at 7421:6-16 (Cooke)]. Like Lake Tenkiller, phosphorus is the
limiting nutrient in Broken Bow Reservoir. [TR at 7381:25-7382:9 (Cooke)]. Additionally, a

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body of data existed on Broken Bow Reservoir from its riverine zone to its dam, as well as data on
fish populations. [TR at 7423:17-21 (Cooke)].
192. Dr. Cooke testified that the key differences between Lake Tenkiller and Broken Bow
Reservoir are (1) the land uses within the respective watersheds—the IRW is approximately 45
percent forest and 45 percent pastures, with a significant number of poultry houses, while the
Broken Bow Reservoir’s watershed is approximately 80 percent forest, with comparatively fewer
poultry houses; and (2) the “tremendous” difference in the phosphorus concentrations flowing into
the respective reservoirs. [TR at 7424:12-7425:11 (Cooke)].
b. Phosphorus
193. Phosphorus concentrations in Lake Tenkiller were determined by the flow weighted
concentrations of phosphorus entering the lake from the Illinois River, less what is deposited in its
sediments. [TR at 7736:8-7737:2 (Welch)]. On an annual basis, the volume weighted phosphorus
concentration entering Lake Tenkiller is 0.227 mg/L. [TR at 7737:7-8; 7745:23-7746:4 (Welch)].
For Lake Tenkiller, this equates to a phosphorus loading of 5.1 grams per square meter of lake
surface per year. [TR at 7739:2-14; 7746:5-10 (Welch)].
194. Additionally, a fraction of the phosphorus deposited as sediment recycles back into the
water column—a process called “sediment phosphorus release” or “sediment flux of phosphorus.”
[TR at 7742:19-22; 7744:2-7745:2; 7748:23-7751:22 (Welch)]. Dr. Eugene Welch’s investigation
revealed that this form of internal loading contributes approximately 23 mg/m² per day, a rate he
characterized as “very high.” [TR at 7751:20-22 (Welch)].16

16

Dr. Welch, who testified as an expert for the State, received a Ph.D. in fisheries from the University of
Washington. His dissertation was on the effects of nutrients on algae and dissolved oxygen in an estuary.
He retired as a professor in the department of civil and environmental engineering at the University of
Washington.

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195. Dr. Welch testified that the natural or background phosphorus inflow concentrations for
a water body such as Lake Tenkiller should be approximately 0.020 mg/L. [TR at 7748:7-15]. As
of the time of trial, the phosphorus inflow concentrations for Lake Tenkiller were roughly ten
times that amount. [TR at 7748:16-17]. Phosphorus loadings to Lake Tenkiller were higher than
all but 2 of 39 North American lakes Dr. Welch investigated. [TR at 7748:3-6 (Welch)].
196. As previously noted, phosphorus is the limiting nutrient in Lake Tenkiller and thus
controls the amount of algae production in the lake. [TR at 7375:22-24, 7381:25-7382:3 (Cooke);
OK Ex. 0747]. Therefore, phosphorus is the key to eutrophication of the lake. [TR at 7374:5-12
(Cooke); 7733:15-16 (Welch)].
197. Limnologists agree that a reservoir transitions from oligotrophic to mesotrophic at
phosphorus concentration levels of about 0.010 mg/L, from mesotrophic to eutrophic at
phosphorus concentration levels of about 0.030 mg/L and from eutrophic to hypereutrophic at
phosphorus concentrations of about 0.100 mg/L. [TR at 7386:15-7387:5 (Cooke); OK Ex. 0745].
198. Water residence times, i.e., the length of time between when a drop of water enters the
reservoir and when it exits the reservoir, also affect phosphorus concentrations in the reservoir.
[TR at 7387:11-20; 7388:4-11 (Cooke)]. Residence times in various zones of a reservoir can vary
based upon reservoir inflows. [TR at 7390:9-7393:3 (Cooke); OK Ex. 0747].
199. On the basis of their respective phosphorus concentrations, Lake Tenkiller is eutrophic,
while Broken Bow Reservoir is on the borderline between oligotrophic and mesotrophic except for
1997, when the concentration of total phosphorus was in the eutrophic category. [TR at 7429:257430:5 (Cooke); OK Ex. 0714; OK Ex. 0747].
200. The average spring-summer inflow phosphorus concentration for Lake Tenkiller was
0.166 mg/L, while the spring-summer inflow phosphorus concentration for Broken Bow Reservoir

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was 0.027 mg/L. [TR at 7431:3-10 (Cooke)]. Dr. Cooke testified this explains why Lake
Tenkiller is eutrophic, while Broken Bow Reservoir is oligotrophic. [Id.]
c. Blue-Green Algae
201. Dr. Cooke testified that an abundance of cyanobacteria, also known as blue-green algae,
is definitive for eutrophication of a reservoir. [TR at 7394:3-7 (Cooke)]. Blue-green algae floats
up to the surface, forming scums or blooms on the surface of the water. [TR at 7394:9-11;
7395:3-9 (Cooke)].
202. Historical reports containing data about algae in Lake Tenkiller from 1960 through 1975
show that samples contained green algae and certain diatoms indicative of oligotrophic conditions,
and only trace amounts of blue-green algae. [TR at 7396:17-7397:18 (Cooke)]. In contrast,
sampling data from 2001-2007 revealed that blue-green algae was the dominant type of algae at
every sampling site in the lake. [TR at 7398:12-7403:1 (Cooke); OK Ex. 0706].
203. Dr. Cooke opined that the abundance of blue-green algae in Lake Tenkiller is directly
related to phosphorus concentrations, and if phosphorus concentration in the lake was reduced,
blue-green algae would be reduced. [TR at 7476:2-10 (Cooke)].
d. Chlorophyll
204. In addition to examining the species of algae in Lake Tenkiller, Dr. Cooke investigated
the quantity of algae in the reservoir. [TR at 7405:1-10 (Cooke)]. The traditional method by
which limnologists evaluate biomass is to measure chlorophyll in the water. [TR at 7405:13-19
(Cooke); OK Ex. 754]. Scientists have adopted certain measures of chlorophyll as borderlines
between the various trophic stages. Between oligotrophic to mesotrophic, the transition line is
chlorophyll levels of about 0.0035 mg/L; between mesotrophic to eutrophic, the transition line is

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chlorophyll levels of about 0.009 mg/L; and between eutrophic and hypereutrophic, the transition
line is chlorophyll levels of about 0.025 mg/L. [TR at 7408:10-21 (Cooke); OK Ex. 754].
205. Based upon the chlorophyll levels found in the Lake Tenkiller sampling data, Dr. Cooke
concluded that “presently, and since 1986, [Lake Tenkiller] is eutrophic.” [TR at 7410:12-17,
7420:1-7 (Cooke)]. In contrast, based on chlorophyll data for Broken Bow Reservoir, Dr. Cooke
concluded that this reference reservoir is oligotrophic to borderline mesotrophic. [TR at 7433:1516 (Cooke); OK Ex. 715].
e. Transparency
206. Transparency is another metric for determining the trophic state of a reservoir.
Transparency is determined using a device called a Secchi disk—a metal disk 10 centimeters in
diameter and divided into four quarters, alternating black and white. The disk is lowered into
water until it cannot be seen, then slowly brought back up until it is visible. The depth at which
the disk can be seen determines the measure of transparency. [TR at 7412:13-7413:7 (Cooke)].
207. The data reflects nearly a 30 percent decrease in the transparency of the water of Lake
Tenkiller between 1986 and 2007. [TR at 7419:19-7420:7 (Cooke); OK Ex. 756]. The average
seasonal transparency for Lake Tenkiller typically falls in the eutrophic and hypereutrophic
category except during dry years and at stations near the dam, which are in the mesotrophic
category. [TR at 7437:13-20; OK Ex. 756]. In contrast, the data for Broken Bow Reservoir show
transparencies in the mesotrophic category in every year except 1997, when the average seasonal
transparency fell in the eutrophic category, and 2006, when transparency was in the oligotrophic
category. [TR at 7437:21-7438:1 (Cooke); OK Ex. 716].

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f. AHOD
208. Hypolimnetic oxygen depletion rates are another way to measure the trophic state of a
water body. The aerial hypolimnetic oxygen deficit (“AHOD”) rate is an indicator of the rate of
oxygen removal in a reservoir as a whole. [TR at 7788:13-7789:1 (Welch)]. AHOD is measured
in milligrams per square meter per day. [TR at 7789:1-6 (Welch)]. As with chlorophyll, total
phosphorus, and transparency, scientists have set benchmark AHOD levels to differentiate trophic
states. [TR at 7789:7-7790:1 (Welch)]. For AHOD, the boundary level between eutrophic state
and hypereutrophic state in lakes is 550 mg/m²/day. [TR at 7792:2-7 (Welch); OK Ex. 726].
209. The average AHOD in Lake Tenkiller measured at about 1300 mg/m²/day. [TR at
7793:3-9 (Welch)]. Based upon this data, Dr. Welch concluded that Lake Tenkiller is
hypereutrophic. [TR at 7796:19-21]. He found that Lake Tenkiller’s AHOD rate was higher than
all 39 North America reservoirs he evaluated. [TR at 7796:1-6 (Welch)]. AHOD rates for the
Broken Bow Reservoir averaged about 530 mg/m²/day—or about 40 percent of the AHOD in
Lake Tenkiller. [TR at 7796:7-14 (Welch)].
g. Dissolved Oxygen
210. A lack of dissolved oxygen in lake waters is also evidence of eutrophication. [TR at
7350:16-25 (Cooke)]. A comparison of dissolved oxygen levels at Tenkiller and Broken Bow
shows that at Tenkiller, oxygen is gone by the end of July throughout the water column; Broken
Bow, in contrast, has oxygen content well above four milligrams per litter for most of the
summer.” [TR at 7784:6-12 (Welch); OK Ex. 726].
h. Dr. Cooke’s Conclusions
211. Dr. Cooke concluded:

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Tenkiller has become eutrophic. It wasn’t always eutrophic. The algae data tell us
very strongly that Tenkiller, . . . in 1960 . . . was oligotrophic. And the same in
1974 and 1975. By 1986, no question, Tenkiller is eutrophic, and has remained so.
[TR at 7420:7-12 (Cooke)]. He based his conclusion on ten years of chlorophyll values, ten years
of transparency data, six years of phosphorus data and nine years of algae determinations. [TR at
7420:13-22 (Cooke)]. Dr. Cooke testified that “this represents possibly the largest dataset for
evaluation of trophic state in North America. There may be some as good, but few, if any, better
than this one.” [TR at 7420:23-7421:1 (Cooke)].
212. Dr. Cooke further concluded that Lake Tenkiller’s eutrophic state is being caused by the
increasing phosphorus concentrations in the reservoir. [TR at 7382:14-19 (Cooke); see also
7732:20-7733:4 (Welch)].
i. Government Studies
213. The June 1996 “Clean Lakes” study of Lake Tenkiller conducted by the OWRB, the U.S.
Army Corps of Engineers, and Oklahoma State University concluded that “[t]he present trophic
status of Lake Tenkiller is classified as “eutrophic.” [OK Ex. 3285 at p. 80]. The classification is
based on “excessive levels of nitrogen and phosphorus concentrations in the lake, nitrogen and
phosphorus loads impinging the lake, and resultant increased algal standing crop and hypolimnetic
oxygen depletions.” [Id.]
214. Additionally, the 2007 BUMP Lakes Report stated, “[i]n summary, Tenkiller Ferry Lake
was classified as eutrophic, indicative of high primary productivity and nutrient levels.” [OK Ex.
5593 at p. 540].
j. Defendants’ Response
215. Defendants’ expert, Dr. Connolly, pointed out that, using only data from the lacustrine
portion of the lake, Lake Tenkiller would in most cases qualify Lake Tenkiller as mesotrophic.

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[TR at 9418:3-6 (Connolly)]. However, the trophic state of a reservoir is determined by
evaluating the entirety of the reservoir. [TR at 7359:11-18 (Cooke)]. And even using Dr.
Connolly’s approach, some portions of Lake Tenkiller are eutrophic. [TR at 9418:10-9419:17
(Connolly)].
216. Dr. Connolly also testified the trophic state of Lake Tenkiller is not unusual for lakes in
Oklahoma. [TR at 9122:18-9123:10 (Connolly)]. However, he admitted that Lake Tenkiller is in
a different ecosystem than most of the lakes in central and western Oklahoma, which tend to be
more naturally eutrophic than Lake Tenkiller. [TR at 9423:21-9424:6 (Connolly)].
3 Consequences of Phosphorus-Induced Eutrophic Condition of Lake Tenkiller
a. Aesthetics
217. Eutrophication has caused aesthetic changes in Lake Tenkiller. [TR at 7445:15-22
(Cooke)]. Due to the abundance of algae in the lake, the water is green. [TR at 7445:25-7446:3
(Cooke)]. During the summer, at least two zones have low transparency—i.e., a meter or less on
average—and most other zones have transparency of two meters or less. [TR at 7446:4-16
(Cooke)]. There are blue-green algae blooms in Lake Tenkiller, creating a scum on the surface of
the water. [TR at 7449:7-20 (Cooke); OK Ex. 743; 4362:11-4363:10 (Caneday)].
218. The State’s recreational expert, Dr. Lowell Caneday, testified the decrease in
transparency of Lake Tenkiller “has definitely changed the recreational use of the lake.” [TR at
4364:24-25 (Caneday)].17 In the late 1980s and early 1990s, when Lowell was director of the
former School of Health, Physical Education and Leisure at Oklahoma State University, the school
offered scuba classes. [TR at 4363:19-4364:2 (Caneday)]. Scuba students performed check dives
17

Dr. Caneday holds a Ph.D. in recreation, park and leisure studies from the University of Minnesota. [TR
at 4328:25-4329:6 (Caneday). He is a professor of leisure studies in the School of Applied Health and
Educational Psychology at Oklahoma State University. [TR at 4327:24-4328:5 (Caneday)]. He is a
certified park and recreation professional (“CPRP”). [TR at 4329:14-16 (Caneday)].

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at the southeast portion of Lake Tenkiller near the dam. [TR at 4364:2-10 (Caneday)]. By 1991,
however, visibility in the lake was “down to less than an arm’s length,” and by 1993, the school
stopped using the lake for its scuba classes. [TR at 4364:19 (Caneday)]. Caneday also testified
that there used to be a number of scuba outfitters near Lake Tenkiller, but it is now down to only
one licensed operator. [TR at 4365:5-18 (Caneday)].
219. Shanon Phillips, the Director of the Water Quality Division of the Oklahoma
Conservation Commission, testified that when she was a child, adults could see their feet when
they were swimming in the lake, but now “you can’t see past your knees.” [TR at 978:21-979:9
(Phillips)].
220. The State’s 2008 Integrated Report corroborates the conclusions of the State’s experts
and the testimony of lay witnesses, that phosphorus is impairing the aesthetics of Lake Tenkiller.
[OK Ex. 6008, App. C at p. 15; TR at 3492:8-18; 3492:22-25 (Strong)]. The report lists total
phosphorus as causing aesthetic impairment to an 8,444 acre segment of Lake Tenkiller. [OK Ex.
6008, Appx. C at p. 15; TR at 3499:18-3500:8 (Strong)].
221. Similarly, the USGS has concluded that “[p]hosphorus levels in streams in the basin have
resulted in the growth of excess algae, which have degraded the aesthetic benefits of water bodies
in the basin, especially . . . Lake Tenkiller.” [OK Ex. 5862 at pp. 3, 20].
b. Aquatic Habitat
222. Eutrophication, when coupled with the plunging effect of river water coming into Lake
Tenkiller, affects dissolved oxygen levels in the reservoir. [TR at 7753:17-24 (Welch)].
Dissolved oxygen levels, in turn, have an impact on aquatic life. [TR at 7763:25-7764:2 (Welch)].
223. Over the course of the year, the water column in a reservoir naturally stratifies by
temperature as the weather warms, with the warmer water above and the denser, cooler water

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below. [TR at 6701:9-17 (Wells)]. During the winter, the water in Lake Tenkiller is isothermal—
that is, the water is the same temperature and density from top to bottom. [TR at 6701:23-25
(Wells)]. In the spring, the surface temperature warms due to solar heating, resulting in an upper
layer—the epilimnion—which is warmer and lighter than the water below. [TR at 6701:256702:5 (Wells)]. In the fall, the epilimnion increases in size until gradually, in October or
November the lake de-stratifies and becomes isothermal again. [TR at 6702:7-12 (Wells); TR at
7364:1-6 (Cooke)].
224. Dissolved oxygen levels in Lake Tenkiller are driven by multiple factors, including reaeration—that is, the exchange between the atmosphere and the surface water. [TR at 6708:10-16
(Wells)]. Because of stratification, the lower portions of the water column, which are not exposed
to the atmosphere, do not get re-aerated. [TR at 6708:17-20 (Wells); TR at 7364:7-7365:14
(Cooke)].
225. Algae production is the major factor determining dissolved oxygen levels in Lake
Tenkiller. [TR at 6709:10-21 (Wells)]. As phosphorus is the limiting nutrient in Lake Tenkiller,
phosphorus concentrations determine the amount of algae growth in the lake. [TR at 6709:226710:5 (Wells)].
226. Most algae will settle to the bottom of the lake, where they continue to consume oxygen
as they respire and decay. [TR at 6708:21-6709:3; 6709:10-17 (Wells)]. In addition, as
previously discussed, plunging flow from the riverine zone of Lake Tenkiller depletes the oxygen
in the cooler metalimnion. [See FF 182-183]. By the end of July, both the hyperlimnium and
metalimnion of Lake Tenkiller become oxygen-depleted. [TR at 7761:1-7; OK Ex. 721 (Welch)].
It is common for dissolved oxygen levels to be zero milligrams per liter below the depth of the
epilimnion, which is the well-mixed upper level. [TR at 6710:11-17 (Wells)]. Because of this,

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Lake Tenkiller does not meet State water quality standards for a cool water fishery during the
summer months. [TR at 7766:19-24 (Welch)].
227. Smallmouth bass and walleye are important fish to Lake Tenkiller. [TR at 7765:17-19
(Welch)]. Eutrophication specifically affects smallmouth bass and walleye in Lake Tenkiller
because they are cool water species squeezed by the lack of suitable habitat. [TR at 7765:207766:8 (Welch)]. During the summer months, when water temperature increases and begins
exceeding their preferred temperatures, smallmouth bass and walleye exist in a water layer that
has insufficient oxygen, which impacts their activity and growth. [TR at 7765:25-7766:5;
7773:23-7774:5 (Welch)]. This is characterized as habitat “squeeze.” [TR at 7766:55-8 (Welch);
TR at 6728:14-17 (Wells)].
228. For approximately two-and-one-half months during the summer, there is no water in
Lake Tenkiller suitable for the optimal growth of smallmouth bass. [TR at 7772:11-15 (Welch);
OK Ex. 733]. For about three months in the summer there is no volume of water in Lake Tenkiller
suitable for even suboptimal growth of walleye. [TR at 7775:13-19 (Welch); OK Ex. 733]. As a
result, during the summer months, Lake Tenkiller does not meet Oklahoma’s water quality criteria
for cool water fish species. [TR at 7766:19-24 (Welch)].
229. Consequently, Lake Tenkiller is no longer stocked with smallmouth bass and walleye.
[TR at 7767:8-21; 7781:18-21 (Welch)].
230. Based on catch rates, the abundance of smallmouth bass in Broken Bow Reservoir, the
reference lake, is three times higher than the abundance of smallmouth bass in Lake Tenkiller.
[TR at 7777:7-7778:15 (Welch); OK Ex. 730]. The abundance of walleye in Broken Bow
Reservoir is two times higher than the abundance of walleye in Lake Tenkiller. [TR at 7780:3-17
(Welch); OK Ex. 730].

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231. Largemouth bass in Lake Tenkiller are not affected by habitat squeeze because they are a
warm water species and they prefer eutrophic waters. [TR at 7766:9-18 (Welch)]. The abundance
of largemouth bass in Tenkiller is twice the abundance of largemouth bass in Broken Bow
Reservoir. [TR at 7785:22-7786:5 (Welch)].
232. Dr. Welch testified, based on his analysis of data, that with respect to smallmouth bass
and walleye, the quality of the fisheries in Broken Bow Reservoir, the reference reservoir, is better
than the quality of the fisheries in Lake Tenkiller. [TR at 7782:6-14 (Welch)]. Thus, increased
eutrophication of Lake Tenkiller’s waters has caused injury to Lake Tenkiller’s fisheries. [TR at
7765:17-7766:5; 7766:19-24 (Welch)].
233. Low dissolved oxygen in Lake Tenkiller also affects bottom invertebrates such as
worms, midge larvae and snails. [TR at 7786-22:7787:3 (Welch)]. Dr. Welch’s investigation
revealed that the population density of bottom invertebrates in Lake Tenkiller is roughly one-sixth
that of Broken Bow Reservoir. [TR at 7787:15-7788:12 (Welch)]. The reduced number of
invertebrates living in the sediments of Lake Tenkiller is due to low levels of dissolved oxygen
during the summer months. [TR at 7788:5-12 (Welch)].
234. The State’s 2008 Integrated Report corroborates Dr. Cooke’s and Dr. Welch’s
conclusion that low levels of dissolved oxygen impair fish and wildlife propagation in Lake
Tenkiller. [OK Ex. 6008, App. C]. The report lists low levels of dissolved oxygen as causing
impairment to fish and wildlife propagation in an 8,440 acre segment and another 5,030 acre
segment. [OK Ex. 6008 at C-15; TR at 3493:15-3496:12; 3498:12-3500:9 (Strong)].

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c. Water Quality
235. The State’s 2008 Integrated Report lists chlorophyll as causing impairment to public and
private water supply uses of a 5,030 acre segment of Lake Tenkiller. [OK Ex. 6008 at App. C-15;
TR at 3492:8-14; 3492:22-25 (Strong)].
236. Eutrophic lakes are known to be a source of increased DBPs in water treatment plants.
[TR at 7463:18-25 (Cooke)]. Eutrophic reservoirs contain a large quantities of organic matter
from various sources, including wastewater treatment plants, runoff from urban areas, and algae
from eutrophic streams. [TR at 7464:1-9 (Cooke)]. Additionally, phosphorus and algae in the
reservoir itself produce organic molecules. [TR at 7464:10-13 (Cooke)]. Dr. Cooke testified that
as much as two-thirds of the organic molecules that go into a drinking water plant may have come
from algae. [TR at 7464:14-18 (Cooke)].
237. High pH in the raw water also contributes to DBP formation. [TR at 7464:19-7465:24].
The process of photosynthesis of algae in reservoirs removes carbon dioxide from the water,
thereby raising pH levels. [TR at 7464:25-7465:10 (Cooke)].
238. Degradation of water quality directly impacts water supply users, as decreases in water
quality require more treatment or alternate water supply sources. [OK Ex. 3285 at p. 34].
d. Summary
239. The court finds that Lake Tenkiller has become eutrophic, and this eutrophication is
caused by phosphorus concentrations in the reservoir.
240. Further, the court finds that Lake Tenkiller’s phosphorus-induced eutrophic condition is
manifested in a variety of ways: an increase in amounts of algae, including blue-green algae, a
decrease in water clarity and a decrease in dissolved oxygen.

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241. The court finds that the decreases in water clarity in Lake Tenkiller are having an adverse
impact on recreational activities and aesthetics.
242. The court also finds that decreases in dissolved oxygen in Lake Tenkiller are having an
adverse impact on cool-water fish and bottom invertebrates.
243. The court finds that phosphorus concentrations in excess of natural or background levels
have caused degradation of water quality in Lake Tenkiller and impairs its aesthetics, fish and
wildlife, and public water supply beneficial uses in violation of Oklahoma’s antidegradation
standards in Okla. Admin. Code § 785:45-3-2(b) and (d).
244. The court finds that phosphorus concentrations have caused excessive growth of
periphyton, phytoplankton or aquatic macrophyte communities in Lake Tenkiller, which impairs
its aesthetics, fish and wildlife, and public water beneficial uses in violation of Okla. Admin. Code
§ 785:45-5-9(d).
245. The court finds that total phosphorus concentrations have caused impairment of the
aesthetic beneficial use for 8,440 acres of Lake Tenkiller that is designated in Section 785:45
(Appendix A) of the Oklahoma Water Quality Standards.
246. The court finds that as a result of phosphorus concentrations, the waters of Lake
Tenkiller are not meeting their aesthetics beneficial use due to floating materials and suspended
substances that produce objectionable color and materials, which settle to form objectionable
deposits in violation of Section 785:45-5-19(a) and (b) of Oklahoma’s Water Quality Standards.
247. The court finds that phosphorus concentrations have caused impairment of the fish and
wildlife beneficial use designated in Section 785:45 (App. A) of the Oklahoma Water Quality
Standards in Lake Tenkiller by depleting dissolved oxygen in the hypolimnion and metalimnion,
violating the dissolved oxygen standard in Section 785:45-5-12(f)(1)(C) and Appendix G of the

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Oklahoma Water Quality Standards, and because aquatic life in Lake Tenkiller exhibit degraded
conditions based on comparative reference historical data in violation of Section 785:45-512(f)(5)(A) of the Oklahoma Water Quality Standards.
248. The court finds that as a result of phosphorus concentrations, a 5,030 acre section of
Lake Tenkiller is not meeting its public water supply beneficial use and is violating water quality
standards due to chlorophyll-a levels in excess of the numerical criterion in Section 785:45-510(7) of the Oklahoma Water Quality Standards.
249. The court finds that phosphorus has caused, and is causing, injury to the rivers and
streams of the IRW in Oklahoma, as well as the biota therein.
250. The court further finds that phosphorus has caused injury to Lake Tenkiller, as well as
the biota therein.
I. Sources of High Phosphorus Loading to the Waters of the IRW
251. Nonpoint source pollution is pollution from diffuse sources, often resulting from runoff
of pollutants over land surface.
252. In contrast, point source pollution comes from a specific discernible place, such as an
outfall from a discharge from a wastewater treatment plant or an industrial site. [TR at 977:4-10
(Phillips)].
253. Once a specific phosphorus molecule enters the waters of the IRW, it is not possible to
determine whether it is from a point or nonpoint source. [TR at 1492:5-13 (Phillips)]. However,
as set forth below, it is possible to determine relative loadings of phosphorus from point and
nonpoint sources.

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1. Point Sources
254. Wastewater treatment plants are the primary source of point-source phosphorus loading
to the waters of the IRW. [TR at 3149:22-3150:4 (Strong); TR at 9128:8-24 (Connolly)].
255. Two wastewater treatment plants in Oklahoma and five wastewater treatment plants in
Arkansas discharge into the waters of the IRW. [TR at 511:7-13 (Tolbert); OK Ex. 5862 at p. 2].
256. Oklahoma and Arkansas have made concerted efforts to reduce phosphorus
concentrations from wastewater treatment plant discharges in the IRW. [See OK Ex. 5666,
Attachment C, p. 4 (Statement of Joint Principles and Actions)].
257. The wastewater treatment plants at Westville and Tahlequah have reduced the
phosphorus in their point source discharges to less than 1.000 mg/L. [TR at 3168:22-3169:12
(Strong)]. In addition, some wastewater treatment plants in Arkansas have reduced the
phosphorus in their point source discharged to less than 1.000 mg/L. [TR at 3169:13-23 (Strong)].
Wastewater treatment plant upgrades were largely completed by 2004. [TR at 8915:9-10
(Connolly)]. However, upgrades to the wastewater treatment plant at Siloam Springs that would
reduce the phosphorus in its point source discharges to less than 1.0 mg/L had not been completed
at the time of trial. [TR at 9525:11-9526:19 (Smith)].
2. Nonpoint Sources
258. Nonpoint sources contributing to phosphorus loading include poultry waste, septic
systems, urban runoff, commercial fertilizer, stream bank erosion, cattle, nurseries, recreational
users and golf courses. The parties dispute how much, if any, phosphorus each nonpoint source
contributes.

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3. Relative Loading of Phosphorus in the IRW Between Point and Nonpoint Sources
259. It is undisputed that point sources account for less than 20 percent of the total
phosphorus load reaching Lake Tenkiller. [TR at 8922:8-20 (Connolly); TR at 10907:23-10908:1
(Sullivan)]. Defendants’ expert, Dr. Connolly, testified that 82 percent of the phosphorus load
reaching Lake Tenkiller is from nonpoint sources. [TR at 9141:15-9142:8 (Connolly)]. His
opinions in this regard are consistent with the findings of many other researchers who have studied
nutrient loading in the IRW.
260. The USGS has extensively studied phosphorus loading to the Illinois River and its
tributaries. [See Ok Ex. 5861; OK Ex. 5862]. Its 2006 report makes clear that the overwhelming
majority of phosphorus loading to the rivers and streams of the IRW is from nonpoint sources:
Runoff components of the annual total [phosphorus] load for Flint Creek ranged
from 68 to 84 percent from 2000 to 2004 (table 5). At the Illinois River stations,
the range in the runoff component of the annual total load was 75 to 88 percent
(table 5). Runoff components of the annual total load at Baron Fork ranged from
91 to 96 percent (table 5).
[OK Ex. 5862 at p. 11].
261. The USGS also found that “[p]hosphorus concentrations in the Illinois River basin were
significantly greater in runoff samples than in base flow samples.” [OK Ex. 5862 at p. 1].
Notably, the USGS observed that “[h]istorical water-quality data collections in the Illinois River
basin has been biased towards sampling during base-flow (non-runoff) conditions,” and as a result,
“calculations using historic data may have underestimated true phosphorus concentrations, loads,
and yields.” [OK Ex. 5862 at p. 3].

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262. The State’s expert, Dr. Indrajeet Chaubey,18 testified that the major source of nutrient
loading in the watershed occurs during high-flow conditions. [TR at 6018:24-6019:2 (Chaubey)].
263. Defendants’ expert, Dr. Connolly, agrees it is reasonable to assume that total phosphorus
concentrations above background in the waters of the IRW are likely due to anthropogenic
sources, and he acknowledged that at a substantial number of locations in the IRW with high
phosphorus concentrations, wastewater treatment plant discharges are not occurring. [TR at
9217:3-9218:10; 9222:3-9224:7; 9224:22-9225:2 (Connolly)].
264. The USGS has also extensively studied phosphorus loading to Lake Tenkiller. [OK Ex.
5861; OK Ex. 5862]. Its 2006 report concludes that the overwhelming majority of phosphorus
loading to Lake Tenkiller is from non-point sources:
The estimated mean annual phosphorus load entering Lake Tenkiller ranged from
about 391,000 pounds per year to 712,000 pounds per year, and from about 83 to
90 percent of the load was transported to the lake by runoff.
[OK Ex. 5862 at p. 1].
265. The USGS numbers are consistent with the calculations of defendants’ expert, Dr.
Connolly. [TR at 8922:8-20; 9142:5-8 (Connolly)]. The numbers are also consistent with the
Clean Lakes study conducted by the OWRB, the U.S. Army Corps of Engineers and OSU. [OK
Ex. 3285 at p. 55 (Table XXIV)].19
266. As previously discussed, there are three principal types of phosphorus in the waters of
the IRW: dissolved inorganic phosphorus (also referred to as soluble reactive phosphorus),

18

Dr. Chaubey received a Ph.D. in biosystems engineering from Oklahoma State University and is a
tenured professor at Purdue University, with appointments in the departments of agricultural and biological
engineering, earth and atmospheric sciences, and ecological and environmental engineering. [TR at
5925:5-11, 5917:23-5918:21 (Chaubey)].
19
The Clean Lakes study concluded that phosphorus loads to Lake Tenkiller were derived predominantly
from non-point sources during high flows. During low flow periods, point and nonpoint source
contributions were approximately equal. [OK Ex. 3285 at p. iv, p. 55 (Table XXIV)].

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dissolved organic phosphorus, and particulate phosphorus. [See FF ##52-53; ##120-121]. All
three forms are available for algae to use in the aquatic ecosystem. [Id.]
267. At base flow at Tahlequah, 15 percent of total phosphorus is particulate and 85 percent is
dissolved. [TR at 9289:19-9290:1 (Connolly)]. Typically, 80 percent or more of total phosphorus
in the waters of the IRW is soluble reactive phosphorus. [TR at 5363:19-21 (Olsen)].
268. With respect to the total phosphorus in IRW wastewater treatment discharge samples,
approximately 70 percent is dissolved phosphorus and 30 percent is particulate phosphorus. [TR
at 9285:19-9286:3 (Connolly)]. Roughly 80 percent of the dissolved phosphorus is soluble
reactive phosphorus. [TR at 9286:4-11 (Connolly)]. Put another way, only slightly more than 50
percent of the total phosphorus from wastewater treatment plants is soluble reactive phosphorus.
[TR at 9286:12-16 (Connolly)].
269. There is more dissolved phosphorus than particulate phosphorus in nonpoint source
runoff. [TR at 9298:11-9299:4 (Connolly)]. And soluble reactive phosphorus comprises almost
half of nonpoint source runoff from fields. [TR at 5356:17-19 (Olsen)]. As noted by Tyson, water
goes downhill and groundwater gets into streams. [TR at 5969:22-5970:5].
270. Importantly, once phosphorus leaves the fields, “that soluble-reactive part is pretty
conservative as it moves through the basin.” [TR at 5367:8-19; 5369:11-15 (Olsen)]. Soluble
reactive phosphorus is a conservative substance that is not volatized and lost. [TR at 5367:12-19
(Olsen); 6233:4-8 (Engel)]. Once phosphorus enters the streams, “it’s a matter of time before it
ultimately reaches some point further downstream,” even if temporarily delayed. [TR at
6462:15-6463:4 (Engel)]. Thus, nonpoint sources directly contribute soluble reactive phosphorus
to the waters of the IRW. [TR at 9134:24-9135:16; 9129:12-17; 9133:24-9134:8 (Connolly)].
Under natural rainfall conditions, concentrations of nonpoint source soluble reactive phosphorus

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can be equal to or greater than such concentrations from wastewater treatment plants. [TR at
9412:24-9413:7 (Connolly)].
271. In tributaries of the Illinois River not impacted by wastewater treatment plant discharges,
two-thirds of the total phosphorus at base flow is soluble reactive phosphorus. [TR at 11370:411372:10; 11374:5-13; 11381:5-10 (Engel)]. The average base flow soluble reactive phosphorus
in such tributaries was 0.027 mg/L. [TR at 11371:11-20 (Engel)].
272. Nonpoint-source phosphorus ends up in the waters of the IRW in two ways. First, with
rainfall, a certain amount of water infiltrates and moves through the soil, picking up some
phosphorus in the process. [TR at 11372:11-21 (Engel)]. Ultimately, it may become shallow
groundwater that later seeps out of the banks and re-enters the stream beds of some of the
tributaries during dry days. [TR at 11372:21-25 (Engel)]. Second, during runoff events, water
containing soluble reactive phosphorus refills voids left by water seepage from the banks, filling
the alluvium along the streams; on dry days, the water trickles back into the streams and slowly
flows to downstream locations. [TR at 11373:1-22 (Engel); see also 5778:11-18 (Engel); 2071:116 (Fisher)].
273. In sum, both point sources and nonpoint sources contribute all three types of phosphorus
to the total phosphorus loading of the waters of the IRW.
4. Relative Environmental Impacts of Point Source/Nonpoint Source Phosphorus Loading
274. Defendants’ expert, Dr. Connolly, does not dispute that 70 to 80 percent of the
phosphorus moving into Lake Tenkiller comes from nonpoint sources. [TR at 8907:14-16
(Connolly)]. Nevertheless, he opines that point source phosphorus loading has the “dominant”
impact on water quality in the IRW, and that nonpoint source phosphorus loading is not having a
significant impact on water quality in the IRW. [TR at 8924:13-24; 9437:5-21 (Connolly)]. Dr.

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Connolly testified, “[i]n other words, if you cut off the nonpoint sources, in my view you wouldn’t
dramatically improve the water quality in Lake Tenkiller or the Illinois River.” [TR at 9437:1821].
275. With respect to the rivers and streams of the IRW, Dr. Connolly bases his opinion
principally on his contention that they flow too quickly for phosphorus loading from nonpoint
sources to have a significant impact on water quality. [TR at 8904:19-8906:12 (Connolly)]. He
testified that algal growth depends not only on the volume of soluble reactive phosphorus, but also
“its fate and its availability to algae.” [TR at 8904:19-8905:8 (Connolly)]. He explained:
[T]here’s a time factor here. Algae can’t instantly grow so they have to see that
phosphorus for a period of time to actually increase and grow off of it.
One of the things that happens in a runoff event is that the water’s flowing fairly
quickly, and so—and the Illinois River in Oklahoma is actually a fairly highgradient river, so under high-flow events the water’s moving pretty fast. So the
transit time through the river is very short, not enough time to grow algae…
[TR at 8905:8-18 (Connolly)]. Dr. Connolly admitted, however, that even in a watershed with a
relatively high gradient, there are some low gradient tributaries in the system, and even during a
high flow event, water will move slowly enough to allow algae growth. [TR at 8905:25-8906:8
(Connolly)].
276. With respect to Lake Tenkiller, Dr. Connolly bases his opinion principally on the
contention that the phosphorus from nonpoint sources plunges into the metalimnion before algae
can form. [TR at 8988:22-8996:5 (Connolly)].
277. Dr. Connolly’s opinion refers to nonpoint sources versus point sources in general as to
their impact on water quality; it does not differentiate between soluble reactive phosphorus and
other forms of phosphorus. [TR at 9412:16-19 (Connolly)].

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278. The IRW is the most studied watershed in Oklahoma. [TR at 399:18-400:5 (Tolbert)
(testifying that “dozens and dozens” of federal and state agencies and universities have conducted
studies of phosphorus impairment of the IRW); TR at 7420:13-7421:1 (Cooke) (testifying the data
for Lake Tenkiller “represents possibly the largest dataset for evaluation of trophic state in North
America”)].
279. Despite this fact, Dr. Connolly is aware of no other investigator who has reached the
conclusion that phosphorus from nonpoint sources has no significant impact on Lake Tenkiller.
[TR at 9165:12-9166:18; 9189:22-9190:4 (Connolly) (stating that he disagrees with the Clean
Lakes study’s conclusion that “[n]onpoint source phosphorus loading was found to be the cause of
eutrophication of Lake Tenkiller”); TR at 9197:21-9198:10 (Connolly) (disagreeing with the
conclusion of the Illinois River Cooperative River Basin Resources Base Report that “[a]
significant part of the water quality problems in the basin appear to be a precipitate of the large
volume of poultry waste generated and disposed of in the basin each year”)].
280. With respect to the rivers and streams of the IRW, Dr. Connolly admitted his conclusions
regarding bioavailability of phosphorus are based on analysis of data from a single geographical
point on the Illinois River at Tahlequah; he did not analyze flows elsewhere on the Illinois River
or in other rivers and streams. [TR at 9131:20-9132:20; TR at 9136:15-17 (Connolly)].
281. Dr. Connolly conceded there is an opportunity for dissolved organic phosphorus and
other forms of phosphorus, including particulate phosphorus, to have an impact on water quality at
some locations in the IRW based on phosphorus cycling. [TR at 9137:3-8 (Connolly)]. Further,
he acknowledged that even in the Illinois River, there are areas where the water slows down
enough for algae to form. [TR at 9137:9-15 (Connolly); see also OK Ex. 3116 at OK0003578
(“The Illinois is a succession of alternating deep pools and swift shallows flowing over beds of

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gravel. The average drop is 5 feet per mile and the normal speed of river flow is 13 miles per
hour—much faster over shoals and in narrow channels and almost at a standstill on the mile-long
deep holes.”)].
282. Dr. Connolly also admitted that forms of phosphorus other than soluble reactive
phosphorus have an impact on water quality in the IRW where relatively quiescent conditions
allow enough residence time for conversion. [TR at 9135:24-9136:12 (Connolly)]. He
acknowledged that such conditions exist both in tributaries of the Illinois River, as well as in
locations on the Illinois River itself. [TR at 9136:18-9137:15 (Connolly)].
283. Dr. Connolly conceded that many locations in the IRW are not impacted by wastewater
treatment plant discharges and yet have high phosphorus levels. [TR at 9217:3-9218:10; 9222:39224:7 (Connolly)].
284. With respect to Lake Tenkiller, Dr. Connolly initially testified that the plunging effect
brings a “significant fraction” of the phosphorus coming into the lake down below the epilimnion
(the surface layer of the lake where algae can grow) and so “it effectively is moving phosphorus
out of the region that algae can grow into a region below where algae can grow.” [TR at 8989:718]. Thus, he concluded that a “large part” of nonpoint source phosphorus is being stored in the
sediment of the lake. [TR at 8997:23-8998:4 (Connolly)]. He opined that nonpoint sources only
impact the lake through the recycle process, and in Lake Tenkiller, the recycle is fairly low and
does not contribute significantly to the algal growth the next year. [TR at 8998:5-18 (Connolly)].
The high chlorophyll levels in Lake Tenkiller, in his view, are driven to a great extent by the point
sources coming into the system rather than the nonpoint sources. [TR at 8998:18-21 (Connolly)].
However, on cross examination, Dr. Connolly acknowledged that not all of the phosphorus is
driven below the surface layer by the plunging effect. [TR at 9421:6-9422:11 (Connolly)].

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285. Further, Dr. Connolly made clear that he was not taking the position that nonpoint source
soluble reactive phosphorus has no impact on water quality in the IRW; rather, in his opinion it
had only a “minor” impact. [TR at 9129:20-9130:6 (Connolly)]. He did not undertake to
quantify—and cannot quantify—the impact soluble reactive phosphorus from nonpoint sources is
having, nor did he perform any calculations to determine what impact cessation of nonpoint source
phosphorus contributions would have. [TR at 9130:7-17; 9447:21-23 (Connolly)].
5. Summary of Findings
286. Based upon the foregoing findings of fact, the court finds that all forms of phosphorus
have an environmental impact in the IRW.
287. The court further finds that nonpoint source contributions of phosphorus loading to the
rivers and streams of the IRW and to Lake Tenkiller are greater than point source contributions.
288. The court finds that nonpoint source phosphorus is a significant source of the phosphorus
causing injury to the rivers and streams of the IRW and to Lake Tenkiller.
289. The State contends that land-applied poultry waste generated by defendants’ poultry is a
significant contributor to phosphorus loading of the waters of the IRW and that the phosphorus in
these waters is causing injuries to the rivers and streams of the IRW and to Lake Tenkiller.
Therefore, the court must evaluate the facts underlying the State’s claims.
J. Overview of the Poultry Industry in the IRW
290. The Tyson Defendants maintain poultry operations in both the Oklahoma and Arkansas
portions of the IRW. [OK Exs. 855, 954, 950, 939]. Those operations began in 1947. [TR 75:1620 (Tyson Opening)]. Between 2000 and 2007, more than 703 million birds belonging to the
Tyson Defendants were raised in the IRW. [OK Ex. 2528].

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291. The Cargill Defendants also have poultry operations in both the Oklahoma and Arkansas
portions of the IRW. [OK Exs. 847, 838, 6127, 6219-A]. The Cargill Defendants began poultry
operations in the IRW in the mid-1960s. [TR 4659:5-9 (Maupin)]. Between 2000 and 2007, more
than 23 million birds belonging to the Cargill Defendants were raised in the IRW. [OK Ex. 2528].
292. The George’s Defendants oversee poultry operations in both the Oklahoma and Arkansas
portions of the IRW. [OK Exs. 879, 883]. The George’s Defendants began poultry operations in
the IRW in the 1950s. [TR at 198:3-4 (George’s Opening)]. Between 2000 and 2007, more than
105 million birds belonging to the George’s Defendants were raised in the IRW. [OK Ex. 2528].
293. Defendant Simmons have poultry operations in both the Oklahoma and Arkansas
portions of the IRW. [TR at 4122:1-3, 19-22 (Simmons testimony); OK Ex. 2722]. Defendant
Simmons began poultry operations in the IRW in the early 1970s. [TR at 4121:17-22 (Simmons)].
Between 2000 and 2007, more than 162 million birds belonging to Defendant Simmons were
raised in the IRW. [OK Ex. 2528].
294. Defendant Peterson had (but no longer has) poultry operations in both the Oklahoma and
Arkansas portion of the IRW. [OK Ex. 913]. Defendant Peterson began poultry operations in the
IRW in the mid-to-late-1970s or early 1980s. [TR at 4787:8-20 (Houtchens)]. Between 2000 and
2007, more than 121 million birds belonging to Defendant Peterson were raised in the IRW. [OK
Ex. 2528].
295. Defendant Cal-Maine had (but no longer has) poultry operations in both the Oklahoma
and Arkansas portions of the IRW. [OK Exs. 6062, 6059, 6060, 6061; 4412:4-10]. Defendant
Cal-Maine began poultry operations in the IRW in 1989. [TR at 4412:4-10 (Storm)]. Defendant
Cal-Maine ceased poultry operations in the IRW in roughly 2005. [Id.] Between 2000 and 2007,

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more than 4 million birds belonging to Defendant Cal-Maine were raised in the IRW. [OK Ex.
2528].
1. Structure of the Poultry Industry in the IRW
296. The State’s expert, Dr. Robert Taylor,20 testified that in the modern poultry industry,
birds are typically raised in one of two ways. First, birds may be raised by the poultry company
itself at company-owned operations; second, the birds may be raised by growers under contract
with a poultry company. [TR at 6767:9-14 (Taylor)]. Birds in the IRW have been and are
predominantly raised by the latter method. [TR at 6767:22-6768:2 (Taylor)].
297. Defendants operate in the IRW on a vertically-integrated business model.21 [TR at
6766:25-6767:8 (Taylor)]. Each defendant owns the birds it places with its growers; owns and/or
supplies the feed consumed by its birds; provides all veterinary services required for its birds; and
provides the medications required for its birds. [TR at 6770:3-6771:2 (Taylor)]. Defendants
decide when they will place birds with their growers, how many birds will be placed with each
grower, and when they will pick up the birds placed with the growers. [TR at 3373:13-17
(Pilkington); TR at 3753:21-3754:1 (Pigeon); TR 4072:9-11 (Anderson); TR at 4537:14-22
(Saunders); TR at 4682:18-20, 4683:1-4 (Maupin); TR at 3917:1-5 (Collins); TR at 4272:7-15
(Murphy); Ct.’s Ex. 6 at p. 7 (Wear Dep.); TR at 4426:18-20 (Storm)].

20

Dr. Taylor earned a Ph.D. in agricultural economics from the University of Missouri. [TR at 6759:4-9
(Taylor)]. He currently holds an endowed chair, the Alfa Eminent Scholar of Agricultural Economics and
Agricultural Policy, at Auburn University. [TR at 6758:20-6759:3 (Taylor)]. He has served on the
editorial board of the American Journal of Agricultural Economics, which is the top journal in his field, and
on the editorial boards of several other journals. [TR at 6760:24-6761:12 (Taylor)]. Dr. Taylor has
testified before congressional committees on issues pertaining to competition in agricultural markets. [TR
at 6762:5-14 (Taylor)].
21
Vertical integration involves a business model wherein a company takes a product from raw material
production to processing, marketing, wholesaling and retailing. [TR at 6764:15-19 (Taylor)].

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298. Defendants use their own trucks and catchers when they pick up their birds. [TR at
3759:10-12 (Pigeon); TR at 4686:10-12 (Maupin); TR at 3916: 16-18 (Collins); TR at 4272:16-21
(Murphy); TR at 4534:6-8 (Saunders)].
299. Defendants set minimum specifications for the houses where they place their birds; they
regularly visit their growers to inspect, supervise, and give advice and recommendations. [TR at
6771:3-6772:6 (Taylor)]. They inspect the grow houses before placing their birds, and they
specify and/or make recommendations regarding clean-outs and cake-outs of their growers’
houses. [TR at 3376:10-3377:9, 3420:19-3421:5 (Pilkington); 3756:12-24, 3757:5-8 (Pigeon); TR
at 4070:24-4071:1 (Anderson); TR at 4673:15-18, 4695:7-4696:16 (Maupin); TR at 4070:244071:1, 4273:10-20, 4277:4-16, 4302:13-16 (Murphy); Ct. Ex. 7 at p. 6 (Butler Dep.); TR at
4954:15-17 (Alsup); TR at 4311:23-4312:22 (McClure); TR at 4549:22-4550:3 (Saunders); TR at
4837:7-9 (Houtchens)].
300. Defendants’ contracts with their growers are non-negotiable, and each defendant sets the
payment schedule for the birds it places with its growers. [TR at 6775:5-8 (Taylor); TR at
3756:13-16 (Pigeon); TR at 4060:25-4061:3, 4063:4-7, 4065:5-8, 4069:22-24, 4072:3-5
(Anderson); TR at 4686:19-21, 4781:13-17 (Maupin); TR at 3114:8-12, 3115:5-7 (Henderson);
TR at 4538:19-24 (Saunders); TR at 3915:11-13 (Collins); TR at 4273:7-9, 4276:24-4277:3
(Murphy); Ct.’s Ex. 6 at pp. 10-11, 14 (Wear Dep.); OK Ex. 6062, ¶5].
301. Defendants’ contracts with their growers are typically short term (year-to-year or flockto-flock). [TR at 6772:13-6774:2 (Taylor); OK Ex. 6062, ¶1; OK Ex. 4957; OK Ex. 6269-A4, ¶2;
OK Ex. 3051, ¶1A].
302. The Tyson Defendants, Cargill Defendants, George’s Defendants and defendant Peterson
provide their growers with a grower and/or environmental handbook. [TR at 4073:2-5

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(Anderson); TR at 3344:25-3345:10 (Keller); OK Exs. 6269-A4, ¶8; 6131A; TR at 4676:134677:10; 4697:22-4698:9; 4767:6-16; 4774:11-4775:6 (Maupin); TR at 4864:12-21 (Alsup); TR at
4310:3-14 (Murphy); TR at 4548:5-74542:21-4543:3 (Saunders)].
303. Defendants provide signage for the growing operations where their birds are raised. [TR
at 3378:7-3379:8 (Pilkington); OK Ex. 6924-OKPL0007130; TR at 4051:11-12 (Anderson); TR at
4687:1-4 (Maupin); TR at 3049:18-3050:4, 3056:24-3057:2 (Henderson); OK Ex. 6923STOK0043577; OK Ex. 6924-OKPL0012227; OK Ex. 6924-OKPL0006069; OK Ex. 6924OKPL0006301; TR at 4464:24-4465:1 (Reed); TR at 3767:15-20 (Pigeon); TR at 4838:4-12
(Houtchens)].
304. The barriers to entry into the poultry growing business are significant. The average
growing operation in the IRW has three or four grow houses. [TR at 1779:4-5 (Fisher); TR at
6777:3-6 (Taylor)]. The typical cost for a grow house and equipment is in the low to mid$200,000 range. [TR at 6777:15-6778:2 (Taylor)]. Thus, a grower with two or three houses
would need to invest between half a million to three-quarters of a million dollars in grow houses
and equipment. [TR at 6778:5-6 (Taylor)]. Loans are typically 12 to15 years for grow houses and
7 years for equipment, but because house and equipment upgrades are required over the life of a
grow house, the typical economic payback period on a grower’s investment is 20 to 30 years. [TR
at 6778:7-16 (Taylor)].
305. As noted above, only four defendant groups operate in the IRW. [See FF ##290-295].
There is no open market in the IRW for the sale of commercial broilers, turkeys, or eggs by a
grower who does not have a contract with one of the poultry integrators. [TR at 6779:12-6780:1
(Taylor)].

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306. Because defendants’ contracts are typically short-term, growers have no assurance they
will continue to receive birds from defendants for a long enough time to cover the 20 to 30 year
economic payback period on their investment in grow houses and equipment. [TR at 6778:176779:3 (Taylor)].
307. Because the defendants’ contracts are similar in most respects, switching from one
integrator to another would not materially change a grower’s circumstances. [TR at 6776:321,
6768:10-23 (Taylor)].
308. There appears to be no dispute that defendants’ vertical integration business model has
transferred certain market risk—including the risk of fluctuation in prices of chicks, feed, and
mature birds—from the growers to the poultry integrators. [TR at 10117:17-10118:9 (Rausser)].
Nevertheless, growers must make significant long-term investments to raise birds for which there
is no open market, no guarantee of long-term continued placement of birds (so that the long-term
investment can be recaptured), and only a limited number of integrators with which growers can
do business. [See FF. ##305-307]. In sum, the transfer of market risks from growers to integrators
comes at a price.
309. Defendants’ expert, Dr. Gordon Rausser,22 does not dispute that defendants have
potential leverage over growers, but opines that the integrators have not actually exercised that
leverage, and that, in fact, exercise of that control would be counter to defendants’ economic
interests. [TR at 10185:25-10186:16; 10139:16-10140:1; 10125:15-10126:2 (Rausser)]. Further,
22

Dr. Rausser has a Ph.D. in agriculture and resources economics and mathematical statistics. [TR at
10107:21-23 (Rausser)]. He holds the position of Robert Gordon Sproul Distinguished Professor at the
University of California at Berkeley. [TR at 10108:5-8 (Rausser)]. He has served as editor of the Annual
Reviews of Resource Economics and the American Journal of Agricultural Economics, and as associate
editor of the Journal of the American Statistical Association and the Journal of Economic Dynamics and
Control. [TR at 10110:1-11 (Rausser)]. He served for two years as senior economist on the President’s
Council of Economic Advisors and for three years as chief economist of the Agency for International
Development. [TR at 10111:1-14 (Rausser)].

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various growers testified that they consider themselves to be independent. [TR at 4598:154599:10 (Saunders); TR at 3926:22-3927:4 (Collins)].
310. However, as set forth above, the actual structure of the integrator/grower relationship,
including the growers’ long term investment burden, significantly limits the growers’
independence.
2. Characteristics, Concentration and Locations of Operations in the IRW
311. Broilers, breeders, layers, pullets, and turkeys are raised in the IRW; the overwhelming
majority of the birds are broilers. [TR at 1779:12-1780:9 (Fisher)].
312. As previously noted, a typical operation has about four grow houses. [See TR at 1779:45 (Fisher); TR at 6777:6-7 (Taylor)]. Each grow house typically houses approximately 20,000
birds; five to six flocks per grow house are raised annually. [TR at 1781:2-15 (Fisher); TR at
3728:10-16 (Pigeon) (testifying he turns an average of five and a half flocks per year)]. Thus, at
any given time, a typical broiler operation is housing 80,000 birds, and over the course of the year,
400,000 to 480,000 birds. [TR at 1781:20-1782:5 (Fisher)]. Chicks are delivered to grow houses
within the first week after hatching, and the grow-out period is typically 49 days. [OK Ex.
6566b]. The target weight for broilers has gradually increased over the years from five to six
pounds. [TR at 3727:21:3728:9 (Pigeon) (testifying that when he began raising broilers in 1995
the target weight was five pounds and as of 2009, the target weight was six pounds)]. Target
weights for turkeys range from 16-25 pounds, and the number of flocks per year averages 3.4.
[OK Ex. 6131A at CARTP100992].
313. The IRW has a high concentration of poultry feeding operations. [TR at 6765:3-11
(Taylor)]. Between 2000 and 2007, more than 1.1 billion birds belonging to defendants were
raised in the IRW. [OK Ex. 2522].

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314. There are approximately 1,900 active poultry houses in the IRW. [TR at 1723:24-1724:6
(Fisher)]. Of this total, approximately 425 poultry houses are located in Oklahoma and 1,455 are
located in Arkansas. [OK Ex. 5665 at pp. 8, 11].
315. The locations of poultry growing operations affiliated with defendants are dictated
largely by the locations of defendants’ respective feed mills and processing plants. [TR 6781:116782:13 (Taylor); TR at 3038:4-3039:2 (Henderson); TR at 4256:8-22 (Murphy); TR at 3978:417, 3979:2 (Henderson); TR at 4798:3-6, 21-24 (Houtchens)].
3. Summary
316. The court finds, based on the foregoing findings of fact, that each defendant has
maintained significant poultry operations in the IRW. Further, by virtue of their contracts and the
vertically integrated structure of the business, each defendant maintains control over virtually all
essential aspects of poultry production, including the activities of their contract growers.
K. Poultry Waste
1. Constituents of Poultry Waste
317. Poultry waste is a combination of poultry litter and poultry excrement. Poultry litter is a
particulate matter that is used to absorb liquids from poultry excrement; generally, it is made of
wood shavings or rice hulls, although wheat straw is sometimes used. [TR at 1802:15-19 (Fisher);
TR at 3843:25-3844:5 (Pigeon)].
318. Poultry waste is a necessary byproduct of poultry growing. [TR at 4127:20-4128:1
(Simmons); TR at 3385:8-13 (Pilkington)].
319. Poultry waste is periodically removed from the grow houses through a procedure known
as “cake-out” or “clean-out.” A cake-out occurs between flocks and involves pulling a tractordrawn machine through the house. The machine removes the layer of crusted, damp litter on top

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of the bedding and sifts the dry litter back onto the floor. [TR at 3729:17-24 (Pigeon); TR at
3376:24-3377:1 (Pilkington)]. A clean-out is the removal of all litter from the poultry house.
[DJX2654 at 0024].
320. Once poultry waste is removed from the grow house, it has no further role in growing
poultry. [TR at 3385:14-18 (Pilkington); TR at 4077:1-7 (Anderson); Ct.’s Ex. 7 at 65 (Butler
Dep.); TR at 4687:24-4688:2 (Maupin); TR at 3077:24-3078:3 (Henderson); TR at 4128:8-11
(Simmons); TR at 3903:7-10 (Collins); TR at 3903:7-10 (Collins); TR at 3735:18-22 (Pigeon); TR
at 4454:19-22 (Storm)].
321. With the exception of defendant Peterson’s post-1999 contracts, defendants’ contracts
with growers do not transfer ownership of the poultry waste to the growers. [TR at 6774:7-18
(Taylor); Ct.’s Ex. 7 at p. 4 (Butler Dep.); TR at 4687:12-23 (Maupin); OK Ex. 6269-A4; TR at
3027:2-12 (Henderson); OK Ex. 3051; TR at 4518:21-4519:7 (Bronson Stipulation); OK Ex.
6062]. Under Peterson’s post-1999 contracts, which are non-negotiable, the grower owns the
poultry litter.23 Thus, growers are unable to decline ownership of and responsibility for poultry
litter.
2. Constituents of Poultry Excrement
322. The constituents of poultry waste are a function of what is fed to the poultry. [TR at
1800:9-18 (Fisher)]. The two largest constituents of poultry feed are corn and soybeans. [TR at
1795:17-18 (Fisher)]. Poultry feed also contains milling and baking waste from the grains. [TR at
1795:18-19 (Fisher)]. In addition to the components of the grains, defendants might also add fats
(e.g., poultry fat recycled from processing); phosphorus compounds (e.g., defluoridated phosphate,
23

In a 1998 memorandum, Peterson’s Director of Corporate Training, Ron Mullikan, predicted that
regardless of whether the grower or the integrator owns the litter, he believed “that as time passes, we the
integrator will be found liable for it and the [e]ffect it has on our environment” and “[t]his position will be
driven by both environmental groups and the EPA.” [OK Ex. 6378].

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calcium phosphate); sodium chloride, potassium salts (e.g., potassium sulfate, potassium chloride);
amino acids; and trace minerals, including copper compounds. [TR at 1795:24-1796:9, 1797:1-23
(Fisher)]. Some defendants’ feed contains arsenic compounds. [TR at 1798:22-1799:12 (Fisher)].
However, the Tyson Defendants discontinued adding arsenic compounds several years ago, and
defendant Cal-Maine has never added arsenic compounds to its feed. [TR at 1799:16-20;
2694:20-22 (Fisher)].
323. Virtually all of this feed, as well as phosphorus supplements added to that feed, is
imported into the IRW. [TR at 5838:2-5839:16 (Engel); TR at 1796:12-17 (Fisher); TR at
3428:25-3429:4, 3434:12-24 (Pilkington); TR at 4737:12-4738:2 (Maupin); TR at 3039:20-3041:2
(Henderson); TR at 4125:18-4126:14 (Simmons)].
324. Poultry waste generated by defendants’ birds in the IRW contains, among other things,
phosphorus, zinc, copper and arsenic. [TR at 1808:19-1809:1 (Fisher); OK Ex. 2523]. Analysis
of samples of poultry waste generated by defendants’ birds in the IRW showed that the average
concentration of total phosphorus in the waste is 19,723.31 mg/Kg (or approximately two percent
of the total weight of poultry waste on a dry weight basis); the average concentration of water
soluble phosphorus is 1,699.11 mg/Kg; the average concentration of zinc is 488.47 mg/Kg; the
average concentration of copper is 420.16 mg/Kg; the average concentration of arsenic is
19.75mg/Kg. [OK Ex. 2523; TR at 1812:14-1813:17 (Fisher)]. These values were similar to
literature values and to the values of poultry waste samples from the neighboring Eucha-Spavinaw
Watershed. [TR at 1817:6-1818:4; 1820:2-1821:10 (Fisher); OK Ex. 2524].
325. A comparison of the concentrations, as well as the concentration ratios, of phosphorus,
copper, zinc and arsenic found in poultry waste with the concentrations and concentration ratios of
such chemicals found in samples of cattle manure and wastewater treatment plant discharges in the

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IRW, reveals that they are distinctly different from one another. [TR at 1824:20-1837:24;
1815:24-1816:13 (Fisher); OK Exs. 2518, 2525].
326. Poultry waste and cattle waste are solids and can be compared both in terms of the
concentrations and the ratios of their chemical constituents. [TR at 1831:16-20 (Fisher)]. Poultry
waste has substantially higher concentrations of phosphorus (on the order of 10,000 milligrams
per kilogram) compared to cattle waste (which for wet waste is 5,600 milligrams per kilogram).
[TR at 1829:20-1830:2 (Fisher); OK Ex. 2518]. The concentration for copper in poultry waste is
over 400; in cattle waste, it is about 14. [TR at 1830:16-20 (Fisher); OK Ex. 2518]. Poultry waste
has a broad range of arsenic, with Tyson samples having relatively low arsenic compared to the
samples of waste from other defendants’ birds, while arsenic was not detectible in cattle waste
samples. [TR at 1831:3-13 (Fisher); OK Ex. 2518]. Zinc concentrations in poultry waste are
much higher than in cattle waste. In poultry waste, zinc concentrations are over 400 milligrams
per kilogram, but about 74 milligrams per kilogram in cattle waste. [TR at 1832:9-16 (Fisher);
OK Ex. 2518]. In short, poultry waste contains high levels of phosphorus, zinc, copper, and
arsenic compared to cattle waste.
327. Data regarding wastewater treatment plant waste is plotted in terms of milligrams per
kilograms. [TR at 1831:14-24 (Fisher)]. Poultry waste is higher in copper compared to zinc, so
there is much more copper present in the poultry waste itself than there is zinc on a mass basis,
compared to either cattle waste or wastewater treatment plant waste. [TR at 1832:17-24 (Fisher);
OK Ex. 2518]. In contrast, wastewater treatment plant waste is much richer in zinc (or much more
depleted in copper) than poultry waste. [TR at 1833:9-16 (Fisher); OK Ex. 2518].
328. The differences between poultry waste, cattle waste and wastewater treatment plant
waste assist in source identification analysis in the IRW. By looking at concentrations and

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concentration ratios in environmental phases, one can identify a source for the material. [TR at
1833:25-1834:6 (Fisher)].
329. Errata Table 12, [OK Ex. 2525], prepared by Fisher, compares ratios of total zinc to total
phosphorus, total copper to total phosphorus, total arsenic to total phosphorus, and total zinc to
total copper, for poultry waste and unfiltered wastewater treatment plant effluent. [OK Ex. 2525;
TR at 1834:25-1835:4 (Fisher)]. With respect to each type of waste, the table lists values for the
maximum value observed; the third quartile value observed (meaning 25 percent of the data is
greater than that); the mean or average value; the medium or middle value; the first quartile value
(meaning that 25 percent of the data is less than that); and the minimum or smallest value. [OK
Ex. 2525, TR at 1835:5-16 (Fisher)]. The table lists the ratios of total zinc to total phosphorus;
total copper to total phosphorus, total arsenic to total phosphorus and total zinc divided by total
copper. [OK Ex. 2525, TR at 1835:17-23 (Fisher)].
330. Fisher found that average total zinc to total copper ratios for poultry waste is about 1.3 to
1. In other words, on average, poultry waste had 30 percent more zinc than copper. For cattle
waste, the average zinc-to-copper ratio is 6.1021, meaning there is six times as much zinc as there
is copper in cattle waste. [OK Ex. 2525; TR at 1835:24-1836:16 (Fisher)]. Fisher testified this is
consistent with poultry feed versus cattle feed because poultry eat feed enriched in copper as
compared to zinc. [TR at 1836:16-19 (Fisher)]. Fisher testified the analysis assists in source
identification because finding materials with high levels of copper to zinc, combined with high
concentrations of phosphorus, identifies the source as poultry waste. [TR at 1836:20-25 (Fisher)].
331. Additionally, if a sample is taken close to the source, the ratios should be largely
conserved. [TR at 1837:1-4 (Fisher)]. Fisher testified that copper salts are more soluble than zinc
salts, so with transport, the ratio of total zinc to total copper can change (with the level of zinc

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going up compared to copper), but there should still be “quite a bit” of zinc, copper, and
phosphorus present. [TR at 1837:4-10 (Fisher)].
332. Further, if the source is poultry waste, the sample will show “a very clear and distinct
relationship” between phosphorus and zinc and phosphorus and copper, as well as phosphorus and
arsenic (although maybe to a lesser extent), because the concentrations of phosphorus are so high
in poultry waste—19,700 to 20,000 on average—compared to cattle waste, which is around 6,000.
[TR at 1837:11-17 (Fisher)].
333. The concentrations of zinc and copper are 400-plus milligrams per kilogram in poultry
waste and only tens of milligrams per kilogram in cattle waste. [TR at 1837:18-21 (Fisher); OK
Ex. 2525]. Fisher testified “[t]he signal from cattle waste with respect to copper and zinc will be
lost quickly as it pollutes, but that from poultry waste will not[,] [a]nd cattle waste, as shown in
the third column here, does not contain arsenic.” [TR at 1837:21-24; OK Ex. 2525].
3. Amounts
334. The dense concentration of poultry production in the IRW leads to a dense concentration
of poultry waste produced in the IRW. The parties offered various estimates of the aggregate
amount of poultry waste generated by defendants’ birds in the IRW. Using various
methodologies, the State’s experts arrived at estimates ranging from 354,000 tons per year to
528,000 tons per year. [OK Ex. 1227]. The State relied upon the most conservative of the
estimates (354,000 tons per year) and defendants did not seriously challenge this amount. Broken
down by defendant group, the annual waste production is as follows: 167,144 tons by the Tyson
Defendants’ birds; approximately 17,968 tons by the Cargill Defendants’ birds; 60,101 tons by the
George’s Defendants’ birds; approximately 66,299 tons by defendant Simmons’ birds; 37,143 tons
by defendant Peterson’s birds; and 2,750 tons by defendant Cal-Maine’s birds. [OK Ex. 2532].

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335. Between 2001 and 2006, the annual poultry waste generated by defendants’ birds
contained an average of 8.7 million to 10 million pounds of phosphorus. [TR at 5685:19-5686:5
(Engel)]. During this period, the annual poultry waste generated by the Tyson Defendants’ birds
contained between 4,088,152 pounds and 4,461,513 pounds of phosphorus; the annual poultry
waste generated by the Cargill Defendants’ birds contained between 1,118,799 and 1,720,395
pounds of phosphorus; the annual poultry waste generated by the George’s Defendants birds
contained between 1,404,951 and 1,658,320 pounds of phosphorus; the annual poultry waste
generated by defendant Simmons’ birds contained between 768,007 and 1,575,910 pounds of
phosphorus; and the annual poultry waste generated by defendant Peterson’s birds contained
between 543,414 and 858,725 pounds of phosphorus. [OK Ex. 1223]. From 2001 to 2005, the
poultry waste generated by defendant Cal-Maine’s birds contained between 71,837 and 396,398
pounds. [Id.]
336. Based on data provided by BMPs, Inc. and the George’s Defendants, in 2003
approximately 8,877 tons (or 2.51 percent) of the poultry waste generated in the IRW was hauled
out of the watershed. [OK Ex. 2535]. In 2004, the amount exported was 12,312 tons (or 3.48
percent); in 2005 the amount exported was 34,434 tons (or 9.73 percent); and in 2006 the amount
exported was 69,019 tons (or 19.50 percent). [Id.] The overall average of waste exported from
the IRW during the four-year period was 8.80 percent. [Id.] Defendants presented no evidence
disputing these calculations.
337. Additionally, some poultry waste generated by defendants’ birds outside the IRW is
imported and applied to land in the IRW. [TR at 1930:10-14 (Fisher); TR at 6603:1-14 (Engel).
See also TR at 9849:23-25 (Clay) (defendants’ expert agreeing it is possible that some poultry
waste may have been imported into the IRW)].

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4. Summary
338. Based on the foregoing, the court finds that each of the defendants has generated and—
with the exception of defendant Peterson and defendant Cal-Maine—is generating significant
quantities of phosphorus-rich poultry waste in the IRW.
L. Poultry Waste Land Application
339. Poultry waste generated by birds owned by each defendant has been applied to lands
within the IRW. [TR at 1929:1-10; 1930:4-9 (Fisher)].
1. Manner
340. It is a common practice to apply poultry waste generated in the IRW on land in the IRW.
[TR at 3428:11-20 (Pilkington); TR at 4864:3-8 (Alsup); TR at 3057:10-20 (Henderson); TR at
4128:12-20 (Simmons); TR at 4292:12-14 (Murphy); TR at 3959:4-8 (Henderson)]. Land
application of poultry waste occurs almost exclusively on grassland. [OK Ex. 3351 at
OSU0005156].
341. Application is typically done by a spreader truck that broadcasts the poultry waste over
the land. [TR at 359:5-13 (Tolbert)]. The poultry waste is applied topically—that is, spread on
the surface without being incorporated into the soil. [TR at 1852:13-1853:3 (Fisher); TR at 959:812 (Fite); TR at 5184:14-16 (Johnson); TR at 4864:9-11 (Alsup); TR at 4292:15-16 (Murphy); TR
at 3903:22-24 (Collins); TR at 4128:21-25 (Simmons); TR at 4803:11-4 (Houtchens); TR at
3965:20-23 (D. Henderson); TR at 3726:6-8 (Pigeon)]. Although land application of poultry
waste occurs throughout the year, it is typically concentrated in late winter and spring—a time that
coincides with significant rainfall in the IRW. [TR at 1960:12-17; 1961:15-1962:6 (Fisher); TR at
776:18-21 (Fite)].

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2. Location
342. Poultry waste generated by birds owned by defendants has been land applied throughout
the IRW. [OK Ex. 3351; TR at 1935:14-17, 1954:9-17 (Fisher); TR at 1269:8-24, 1270:14-19
(Phillips)].
343. Poultry waste applied in the IRW is generally applied in close proximity to where it is
generated. [TR at 356:10-20 (Tolbert)]. Approximately 80 percent of the poultry waste that is
land applied in the IRW is applied within four miles of where it is generated, and just a little less
than 70 percent of that poultry waste is land applied within two miles of where it is generated.
[TR at 1883:2-16, 1888:8-15 (Fisher); OK Ex. 2515].
344. By virtue of the fact that defendants’ poultry operations are concentrated in the IRW [see
FF ##290-95], that growers locate close to defendants operations, and that land application of
poultry waste generally occurs in close proximity to the poultry growing operations [see FF #343],
it follows that defendants strongly influence the distribution of poultry waste disposal in the IRW.
3. Behavior of Phosphorus in the Soil and STPs
345. Poultry waste contains organic and inorganic phosphorus. [OK Ex. 3145; TR at 4988:521 (Johnson)]. The inorganic phosphorus in land-applied poultry waste initially is highly soluble
and available to plants, but as it reacts with the soil, it becomes less soluble and less available to
plants. [OK Ex. 3145]. Phosphorus ions react with soil in one of two ways: either they are
adsorbed24 onto soil particles or they chemically combine with elements in soil such as calcium,
aluminum and iron, forming solid compounds. [Id.]

24

“Adsorption” is the “adhesion in an extremely thin layer of molecules (as of gases, solutes, or liquids) to
the surfaces of solid bodies or liquids with which they are in contact.” Merriam-Webster Online Dictionary
(2013).

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346. The State’s expert, Dr. Gordon Johnson, testified that in very basic terms, the watersoluble phosphorus from land-applied poultry waste enters the pool of phosphorus in the soil and
establishes equilibrium with the various forms of other phosphorus in the soil. [TR at 4988:234989:6 (Johnson)]. As plants adsorb water soluble phosphorus, the natural equilibrium in the soil
between water soluble phosphorus and other forms replenishes water soluble phosphorus from the
other forms. [TR at 4990:7-17 (Johnson)]. In this situation, the equilibrium moves phosphorus
from a bound form to a water soluble form. [TR at 4991:11-13 (Johnson)]. Conversely, if more
water soluble phosphorus comes from an external source, the equilibrium moves water soluble
phosphorus to the adsorbed form. [TR at 4991:21-4992:4 (Johnson)]. The equilibrium reaction is
continuous. [TR at 4992:5-8 (Johnson)]. For instance, if water soluble phosphorus leaves in
runoff, the equilibrium reaction makes more water soluble phosphorus available from other
phosphorus in the soil. [TR at 4996:6-13 (Johnson)].
347. “Managing Phosphorus from Animal Manure,” an Oklahoma Cooperative Extension
Service publication, explains:
As adsorbed and precipitated P increases, the phosphorus in soil solution (water
held in the soil matrix) also increases, due to the equilibrium between solid and
dissolved forms of phosphorus. Soil solution phosphorus is subject to runoff loss
during storm events. More P will be subject to loss when soil P approaches
saturation or over-saturation. Saturation means that all the sorption sites on soil
particles are occupied by P, and all Ca, Al, Fe and other elements capable of
precipitating P are used up. Therefore, the soil P holding capacity is a function of
clay and organic matter content, soil pH, and the amount of calcium carbonate and
aluminum or iron oxides of a particular soil.
[OK Ex. 3145 at p. 2].
348. Soil phosphorus testing is a management practice used to predict the amount of
phosphorus needed in a fertilizer or manure program for optimum yield. [Id.] Soil test
phosphorus (“STP”) relates soil phosphorus to crop response. [TR at 4992:9-24 (Johnson)].

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349. Elevated STPs decline slowly. If a field has an STP of 200 and forage removes 50
pounds of phosphorus, the STP does not go back to 150. This is in part because of the chemistry
in the soil, and in part because roots only absorb phosphorus from a thin layer of soil right next to
them (positional availability). The soil between plant roots is not affected by the fact that a crop is
growing there. [TR at 4992:25-4993:12 (Johnson)].
350. Haying forage and removing it from the field reduces STP values more quickly than
grazing the field, because 90 percent of the forage phosphorus consumed by beef cattle passes
through the animals and is recycled into the soil. [TR at 5042:10-15 (Johnson)].
4. Balance/Over-Application
351. When poultry waste is applied to meet the nitrogen needs of forage, more phosphorus—
by a factor of about four—is applied than plants will need. [TR at 5024:24-5025:6 (Johnson)]. In
this sense, poultry waste, unlike commercial fertilizer, is not a well-balanced fertilizer. [TR at
5023:17-5024:13 (Johnson)].
352. Poultry waste, as an “unmanipulated animal manure,” is excluded from the definition of
a “soil amendment” under Oklahoma law. [2 Okla. Stat. § 8-85.3(14); TR at 5091:11-17
(Johnson) (describing “unmanipulated animal manure” as “manure that has not been composted or
pelletized or somehow manipulated to change its physical and chemical characteristics that would
otherwise be the property when you had it fresh”)].
353. A 1988 report by the Arkansas Department of Pollution Control & Ecology stated:
Excess nitrogen, in the form of nitrate-nitrogen is water soluble and any excess is
quickly leached out of the soil and enters the groundwater or surface water.
Phosphorus, however, adsorbs to soil particles and is not readily leached from the
soil. Excess values built up in the soil will be washed into surface waters whenever
erosion occurs.
Chicken manure has a higher phosphorus to nitrogen ratio th[a]n is utilized by
plants. If the application of this material is based on its nitrogen content, an excess

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of phosphorus will build up. Informal soil tests done in the Lake Lincoln watershed
in Washington [C]ounty by the SCS show excess phosphorus is present. Lake
Lincoln, the water supply for Lincoln, currently has dense algae blooms and taste
and odor problems in the summer, an indication of nutrient enrichment.
[OK Ex. 3312 at ADEQ 226].
354. The Oklahoma portion of the IRW has been designated a “nutrient limited watershed” by
the Oklahoma Water Resources Board. [Okla. Admin. Code § 785:45-5-29]. A “nutrient limited
watershed” means “a watershed or a waterbody with a designated beneficial use which is
adversely affected by excess nutrients as determined by Carlson’s Trophic State Index (using
chlorophyll-a) of 62 or greater, or is otherwise listed as “NLW” in Appendix A of [Chapter 45 of
the Oklahoma Administrative Code].” [Okla. Admin. Code § 785:45-1-2]. Similarly, the
Arkansas portion of the IRW has been designated a “nutrient surplus area [] for phosphorus and
nitrogen” by the Arkansas legislature. [Ark. Code § 15-20-1104(a)(1)].
355. The State’s expert, Dr. Johnson, testified that the land application of poultry waste has
substantially increased the STP of the soils in the IRW in the areas where it has been applied. [TR
at 5093:14-23 (Johnson)].
356. Dr. Johnson opined that the IRW produces more poultry waste than can be
agronomically used within the watershed. [TR at 5092:25-5093:5 (Johnson)]. His opinion was
based on STP levels of fields where poultry litter had been land-applied. Defendants’ expert, Dr.
Rausser, criticized Johnson’s conclusion because it was based only on STP levels on land on
which poultry litter had been applied. Dr. Rausser opined that while poultry waste could not be
agronomically used on lands on which poultry litter had been overapplied, it could be redistributed
to other lands within the IRW where overapplication had not occurred. [TR at 10165:6-10167:11
(Rausser)].

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357. STP levels at certain of defendants’ own growing operations have been high. A 2003
soil test report for the George’s Defendants’ Ritter Farm located in Arkansas reflects STP values
of 1213, 1689, 2166, and 1093. [OK Ex. 2790B]. A 1999 nutrient management plan for the
George’s Defendants’ Morrison Farm, also located in Arkansas, reflects STP values of 790, 671,
948, 790, 770, 700, and 657. [OK Ex. 6287]. A 2000 document containing soil tests for the
Tyson Defendants’ Tyson Research Farm located in Arkansas reflects STP values of 726, 717,
506, 462, and 386. [OK Ex. 6535]. Soil tests for the Cargill Defendants’ Cargill Breeder Farms
located in Arkansas reflect STP values of 797 and 972. [OK Ex. 3337].
358. ODAFF records introduced at trial reflect STP values in excess of 120 for a number of
fields belonging to defendants’ growers. [Doc. 2873, Ex. A (summarizing STP results for
growers)]. The summary chart shows more than 170 instances in which growers’ fields had STP
values in excess of 120 between July 1, 1997 and February 2, 2007. [Id.]
359. Representatives of each defendant testified their companies rely on local, state and
federal regulations and state inspectors to ensure that the contract growers are implementing sound
environmental practices. [TR at 3316:20-3317:6 (Keller, former Tyson employee)]; TR at
4143:16-4144:16; 4146:12-17 (Simmons, Simmons representative); TR at 4308:3-4309:4
(McClure, George’s representative); TR at 4450:23-4451:7 (Storm, Cal-Maine representative); TR
at 4732:5-4733:3, 5734:14-4735:5; 4735:16-4736:9, 4771:21-4773:4, 4777:19-4778:7 (Maupin,
Cargill employee); TR at 4797:12-24; 4809:23-4810:13; 4831:15-23; 4832:13-19; 4834:7-4835:9,
4839:5-25, 4843:8-18 (Houtchens, Peterson representative; Ct. Ex. 7 (Butler Dep.) at 78:07-78:15
(Cobb Vantress representative)]. Company representatives testified they believe the state and
federal regulators have the technology and expertise to ensure poultry litter is handled in an
environmentally responsible manner. [Id.]

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360. However, defendants do little to nothing to monitor or control their growers’ disposal of
poultry waste. Defendant Simmons’ representative, Mark Simmons, testified that before his
company contracts with a grower, it requires him to agree to follow the law, but it does not
investigate whether the grower has appropriate places to dispose of poultry waste. [TR at
4192:13-23 (Simmons)]. Simmons testified, “Litter is the property of the grower, and we have
asked our grower to adhere to State law. And that is what I believe is the limit of our authority.”
[TR at 4190:22-4191:3 (Simmons)]. The Tyson Defendants, for a period of time, required their
contract growers to submit litter usage reports and maintained that information on a nutrient
management spreadsheet. [TR at 3336:22-3337:16 (Keller)]. The practice was discontinued
because “it was an overwhelming task for the live production managers.” [TR at 3340:8-19
(Keller)]. Defendant Peterson never tracked what its growers did with the poultry waste generated
by its birds and it did not direct what its growers did with the litter after they took it out of the
houses. [TR at 4802:7-9 (Houtchens); TR at 3969:21-25 (Henderson)]. From 2002 to 2004, the
Cargill Defendants worked on a project (the “Precision Ag” project) aimed at potentially moving
poultry waste out of their Springdale complex to southeast Kansas. [TR at 4704:20-4705:3
(Maupin); OK Ex. 6168-A]. As part of the Precision Ag project, the Cargill Defendants
conducted a search and comparison of STP levels in northwest Arkansas and surrounding areas.
[OK Ex. 6138-A2]. A map generated by the Cargill Defendants in connection with the Precision
Ag project shows that northwest Arkansas/northeast Oklahoma is an area with high STP levels.
[OK Ex. 6138-A2]. Although some litter was moved on a “small scale,” the project was
discontinued because, at the time, it was not profitable. [TR at 4707 (Maupin)]. Currently, while
the Cargill Defendants place “a large number of birds in the IRW,” they do nothing to directly
manage the poultry litter generated by their birds. [TR at 4756:12-20; 4757:15-24 (Maupin)]. The

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George’s Defendants now transport all of the poultry waste generated at its company-owned farms
out of the IRW, but they do not transport out any of the waste generated on their contract growers’
farms. [TR at 3058:9-22 (M. Henderson)]. The George’s Defendants take no responsibility for
the poultry waste land application practices of their contract growers, and do not know whether the
growers actually comply with their nutrient management plans. [TR at 3026:23-3027:1; 3079:5-8
(M. Henderson)]. The Cal-Maine Defendants placed all responsibility for poultry waste disposal
on their contract growers. [TR at 4421:7-11 (Storm)]. Cal-Maine has never had an environmental
division or any employee in charge of environmental matters, despite being the largest eggproducing company in the country. [TR at 4454:3-12 (Storm)].
5. Summary
361. Based on the foregoing, the court finds that the majority of the poultry waste generated
by each of defendants’ birds has been land applied in the IRW, usually on or in close proximity to
the growers’ farms.
362. Land application of poultry waste has caused the soil in many areas of the IRW to have
STP levels in excess of any agronomic need for phosphorus.
363. Historically, defendants 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. The evidence adduced at trial establishes that none of the defendants took any steps to do
so.
M. Land-Applied Poultry Waste as a Source of High P Loading in the IRW
364. The State relies on 12 “lines of evidence” to prove that land-applied poultry waste is a
source of high phosphorus loading in the IRW: (1) government reports; (2) evidence of the mass
of poultry waste generated in the IRW; (3) evidence of phosphorus loading from nonpoint sources;

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(4) mass balance analysis, (5) evidence of the geology of the IRW; (6) chemical ratio analysis; (7)
pathway concentration analysis, (8) Lake Tenkiller geochronological sediment analysis; (9)
poultry house density analyses; (10) modeling analysis; (11) upstream/downstream sampling; and
(12) direct observation. The Court addresses two additional categories of evidence: (13)
testimony by one of defendants’ own experts, and (14) defendants’ admissions.
1. Government Reports
365. In a 2008 report mandated by 82 Okla. Stat. § 1457(c) and titled “Coordinated Watershed
Protection Strategy for Oklahoma’s Impaired Scenic Rivers,” the Office of the Oklahoma
Secretary of the Environment reported that “[t]he single largest contributor of nonpoint source of
phosphorus pollution is surplus poultry litter generated by the integrators’ flocks.” [OK Ex. 5662
at p. 3; see also OK Ex. 5664 at p. 4; OK Ex. 5665 at p. 4].
366. The Oklahoma Conservation Commission, in a May 1999 report entitled Comprehensive
Basin Management Plan for the Illinois River Basin in Oklahoma, noted a decline in water quality
in Illinois River Basin and stated:
Land use analysis correlated this decline in water quality to dramatic changes in
land use in the basin. Agriculture increased substantially in the basin in the form of
confined animal feeding operations (CAFOs), primarily poultry operations, and
forest land continues to be cleared for pasture and hay production. Overall, these
land use changes resulted in a net increase in the amount of nutrients entering the
watershed (primarily through animal feed) without a concomitant increase in the
amount being exported from the watershed. The resulting imbalance in the nutrient
import/export cycle is manifested in the water quality of the basin.
[DJX-0640 at p. iii].
367. In a report titled “The Illinois River Management Plan 1999,” the Oklahoma Scenic
Rivers Commission, Oklahoma State University, and the National Park Service stated:
In recent years, there has been significant expansion of confined animal production,
particularly broilers, in the Illinois River Corridor . . . . Poultry wastes are typically
applied to nearby pasture land. Mismanagement of these applications can result in

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runoff of nutrients (nitrogen and phosphorus) to streams in the watershed. These
occur in rainfall runoff as well as in shallow groundwater flow. Increased nutrient
loading in tributaries impacted by poultry production, as well as, downstream
effects are documented.
[DJX-0147 at p. 67 (emphasis added)].
368. The United States Geological Service (“USGS”), in its 2006 report, “Phosphorus
Concentrations, Loads, and Yields in the Illinois River Basin, Arkansas and Oklahoma, 20002004, concluded:
Phosphorus concentrations in the Ozark streams are typically greater in streams
draining agricultural lands than in those draining forested lands (Petersen and other,
1998; 1999) because runoff from pastures fertilized with animal manure are
probably substantial sources of phosphorus to the rivers in this basin (Arkansas
Department of Environmental Quality, 2000).
[OK Ex. 5862 at p. 4 (emphasis added); see also OK Ex. 5861 at p. 2].
369. In a 1992 report titled “Illinois River Cooperative River Basin Resource Base Report,”
the United States Department of Agriculture stated:
A significant part of the water quality problems in the basin appear to be a
precipitate of the large volume of poultry waste generated and disposed of in the
basin each year.
[OK Ex. 3351 at OSU0005179].
370. The chief of the Water Management Division of the Arkansas Natural Resources
Commission, Earl Smith, Jr., affirmed the accuracy of the statement in the draft Conservation
Reserve Enhancement Program Agreement for the Illinois River Watershed in Arkansas that
“nonpoint source impacts affecting the waters in this segment are primarily from pastureland that
is also used for application of poultry litter as fertilizer.” [TR at 9603:24-9604:13, 9609:249610:5; OK Ex. 3366 at A-6].
371. The court finds these government reports to be reliable and accords them considerable
weight.

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2. Mass of Poultry Waste Generated/Method of Disposal
372. As previously discussed, defendants’ birds generate from 354,000 tons per year to
528,000 tons per year of poultry waste in the IRW. [See FF #334]. The poultry waste is landapplied throughout the IRW, and is not incorporated into the soil upon which it is spread. [See FF
##340-41]. The poultry waste is typically applied in close proximity to where it is generated, and
in some fields has been applied at rates in excess of agronomic need. [See FF ##343, 362].
373. The fact that poultry waste is not incorporated into the soil is significant in terms of fate
and transport because “the surface of the land is where the rain lands, so that’s where runoff is
generated.” [TR at 1852:16-1853:10 (Fisher)]. Both Dr. Johnson and defendants’ expert Dr.
Connolly testified that long-term land application of manure at rates in excess of agronomic need
elevates the level of phosphorus in the soil and increases the concentration of phosphorus in the
runoff. [TR at 5028:3-10, 5029:18-22 (Johnson); see also, OK Ex. 3312 at ADEQ-226 (stating
“[n]itrogen and phosphorus should be applied at a rate not greater than what cover plants can
assimilate . . . Excess values built up in the soil will be washed into surface waters whenever
erosion occurs”)].
374. The concentration of poultry operations also figures into the phosphorus loading
analysis. The Oklahoma Conservation Commission’s Comprehensive Basin Management Pan for
the Illinois River Basin in Oklahoma states, “[t]he disposal of wastes produced by these facilities
provides a serious management dilemma for landowners as the amount of animal wastes produced
exceeds the amount of land available for waste application.” [DJX640 at p. 89]. It further states
that “the soils in the watershed are becoming phosphorus-saturated. Additional applications of
litter result merely in higher concentrations of nutrients in runoff, rather than increased forage
growth.” [Id.]

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375. Even years after the cessation of poultry litter application, runoff water quality can be
affected because of phosphorus stored in the soil. [Ct. Ex. 8, B. Haggard Dep. at 9:08-16].
Runoff from a soil that contains phosphorus carries phosphorus that is dissolved in water.
Additionally, where erosion is involved (which is likely the case in intensive rainfall events),
phosphorus that is adsorbed to particles will also move off with the water. [TR at 5027:15-5028:2
(Johnson)]. Further, as a result of the equilibrium effect described above, water-soluble
phosphorus carried off the surface is replaced by de-adsorbed phosphorus from soil surface
particles and also by dissolving of solid phase phosphorus. Thus, the soil continues to put out
more and more water soluble phosphorus at the surface where it can become part of water moving
downslope and be transported. [TR at 5037:12-17 (Johnson)]. The equilibrium effect
predominantly occurs in the top two inches of the soil. [TR at 5037:21-5038:3 (Johnson)].
376. The court finds Dr. Johnson’s testimony believable and largely uncontroverted, and
therefore accords it substantial weight.
3. Phosphorus Loading from Nonpoint Sources
377. Defendant’s expert Dr. Connolly testified that wastewater treatment plants account for
15-18 percent of the total amount of phosphorus entering Lake Tenkiller. [TR at 8922:8-20; see
also TR at 10907:23-25 (Sullivan) (agreeing that the total point-source contribution to the lake is
currently less than 20 percent)]. Dr. Connolly estimated nonpoint sources account for 82 percent
of the phosphorus in the waters of the IRW. [TR at 9142:5-8 (Connolly)].
378. The phosphorus in nonpoint source runoff is mostly dissolved phosphorus. [TR at
9298:11-9299:4 (Connolly)]. Nonpoint sources directly contribute soluble reactive phosphorus to
the waters of the IRW. [TR at 9134:24-9135:7; 9129:12-17; 9133:24-9134:8 (Connolly)]. Under
natural rainfall conditions, concentrations of nonpoint source soluble reactive phosphorus can be

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equal to or greater than such concentrations from wastewater treatment plants. [TR at 9412:249413:7 (Connolly)].
379. Poultry waste leachate contains high concentrations of soluble reactive phosphorus and
the State’s edge-of-field sampling data show that about 50 percent of the phosphorus in nonpoint
runoff from fields that have received land applied poultry waste is soluble reactive phosphorus.
[TR at 5233:2-10; 5235:10-15; 5258:4-11; 5356:17-19 (Olsen)].
380. As admitted by defendants’ own expert, nonpoint sources are responsible for 82 percent
of phosphorus loading of the waters of the IRW. The court accords this evidence great weight in
its evaluation of the State’s case.
4. Mass Balance Analysis
381. The State retained Dr. Bernard Engel25 to conduct a mass balance analysis. A mass
balance analysis is a study of the inflows to and outflows from a watershed. [TR at 5978:5-14
(Chaubey)]. Defendants’ expert, Dr. Connolly, explained:
Mass balance is a tool. Mass balance is used in the context of fate and transport in
order to help evaluating fate and transport. Mass balance is, more specifically, a
statement of conservation of mass, that mass can be neither created nor destroyed
so that fate and transport calculations and analyses are essentially tracking mass.
They’re conforming to conservation of mass. They quantify sources, they quantify
syncs. And mass balance is looking at the fate and transport within the
environment.
[TR at 8842:6-17(Connolly)]. Further:
Fate and transport is a term of art that’s common in our field. And it refers to all of
the physical, chemical and biological processes that affect a pollutant as that
pollutant moves from its original source to its final destination, and how those

25

Dr. Engel holds a Ph.D. in agricultural engineering from Purdue University. [TR at 5639:12-20 (Engel)].
He is head of the agricultural and biological engineering program at Purdue. [TR at 5641:11-5642:4
(Engel)]. He served as the court-appointed special master in City of Tulsa v. Tyson Foods, Inc., and was
charged with assessing the hydrologic water quality monitoring done in the case. [TR at 5663:3-15
(Engel)].

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processes interact and how they affect the movement and the ultimate disposition
of the pollutant.
[TR at 8841:24-8842:5 (Connolly)].
382. Dr. Engel undertook his mass balance analysis in order to: (1) understand the movement
of phosphorus into and out of the IRW; (2) identify the most substantial sources of phosphorus
moving in and out of the IRW; and (3) identify the sources necessary to include in subsequent
analyses, including his watershed modeling analysis. [TR at 5811:14-22 (Engel)]. Regarding this
case, Engel testified:
[T]he mass balance indicates an inflow of nutrients into the watershed and many of
those are placed on the landscape within the watershed, and as rainfall interacts
with them, they’re going to move off-site into the streams, rivers, and ultimately to
Lake Tenkiller.
So myself, as well as others who have done mass balances, have found them to be a
very important tool in understanding the potential fate and transport of materials
like phosphorus.
[TR at 6621:16-25 (Engel)]. The mass balance analysis Dr. Engel conducted in this case was
similar to another watershed mass balance analysis he previously conducted. [TR at 5787:5-11
(Engel)].
383. Dr. Engel selected the following phosphorus input sources for inclusion in his mass
balance analysis: humans, poultry, swine, dairy cattle, beef cattle, heifers that calved, commercial
fertilizers, golf courses, urban runoff, wholesale nurseries, recreational users and industrial users.
[TR at 5823:18-5824:6 (Engel); OK Ex. 1091]. With respect to removals of phosphorus, he
evaluated the Lake Tenkiller spillway, harvested crops, harvested deer and beef cattle sold. [TR at
5825:1-15 (Engel); OK Ex. 1091]. Dr. Engel selected these input and removal sources based upon
his experience in doing mass balance analyses, published literature that has identified sources of

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phosphorus in the IRW and his own personal experience with the IRW. [TR at 5824:7-16; 5825:915 (Engel)].
384. The data sets Dr. Engel relied upon in conducting his mass balance analysis are of the
type typically relied upon by other experts. For example, he used the United States census to
determine the number of humans within the IRW. [TR at 5812:23-5813:6 (Engel)]. His livestock
population data were derived from the United States agricultural census, which is typically relied
upon by scientists in evaluating the nutrient impacts of livestock. [TR at 5813:22-5814:18
(Engel)]. His land use/land cover data were taken from the USGS national land cover data set,
which is also traditionally used by scientists to perform mass balance analysis of watersheds. [TR
at 5814:19-5815:2 (Engel)].
385. Once the sources were selected and data were assembled, Dr. Engel performed
calculations for each of the identified sources. With respect to livestock animals, he utilized data
going back to 1949 to determine historical phosphorus inputs in five-year increments. [TR at
5827:5-5828:11 (Engel)]. In calculating the phosphorus inputs for livestock, he first identified the
life cycle and weights of each animal group, and obtained phosphorus information from the USDA
waste characterization handbook. [TR at 5835:25-5836:15 (Engel)]. Applying a mathematical
formula to the data, he calculated the phosphorus inputs for each of the livestock animal groups.
[Id.]
386. In calculating phosphorus inputs from livestock animals, cattle were treated somewhat
differently from the other animal groups. Dr. Engel determined that cattle are mostly recycling
phosphorus in the IRW. [TR at 5836:23-5837:7 (Engel)]. That is, because cattle are largely
consuming grass and hay, most phosphorus excreted by them already existed within the IRW and
is simply being recycled. [TR at 5837:8-20 (Engel)]. The only true phosphorus additions from

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beef cattle come from feed supplements; thus, cattle are not “net creators or excretors” of
phosphorus in the IRW. [TR at 5794:9-5795:12 (Engel)]. In contrast, the phosphorus in feed
consumed by other livestock animal groups such as poultry, swine and dairy cattle is imported into
IRW. [TR at 5838:2-9, 5838:16-20 (Engel)].
387. Dr. Engel’s calculations for urban runoff and wholesale nurseries differed from the
calculations of the other sources. He concluded the best way to determine the net movement of
phosphorus from urban runoff and wholesale nurseries was to examine the amount of expected
water actually leaving those areas and the concentration of phosphorus in that runoff. [TR at
6622:9-6623:21 (Engel)]. He identified urban runoff areas from the national land cover data,
utilized a value of phosphorus in urban runoff and ran the LTHIA (Long-Term Hydrologic Impact
Assessment) model to calculate the amount of phosphorus that would actually run off from urban
areas in the IRW. [TR at 5845:13-23 (Engel)]. Dr. Engel developed the LTHIA model primarily
to look at the impacts of urbanization of land uses on runoff and nonpoint source pollution. [TR at
5657:9-17 (Engel)]. He testified the LTHIA model has been used by himself, as well as other
scientists, in work published peer-reviewed journals. [TR at 5657:18-22 (Engel)].
388. With respect to wholesale nurseries, Dr. Engel made an assumption that 20 inches of
water ran off from the nurseries per year—an amount he characterized as “a rather large number.”
[TR at 5847:4-7 (Engel)]. He also relied on a report that identified the concentrations of
phosphorus being discharged from nurseries within the IRW. [TR at 5847:9-12 (Engel)]. An
equation that relates area, runoff and concentration was used to calculate the mass of phosphorus
entering the waters of the IRW from nurseries. [TR at 5847:12-15 (Engel)]. Dr. Engel’s nurseries
input analysis was a standard method used by scientists to measure the nutrient contribution of
nurseries in a watershed mass balance. [TR at 5847:22-5848:2 (Engel)].

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389. After making his phosphorus input calculations for each identified source, Dr. Engel
conducted his phosphorus removal analysis. For his harvested crops removal calculation, he
obtained agricultural census data by area of the crops produced for the amounts produced
historically. [TR at 6196:12-19 (Engel)]. For the cattle removal, Dr. Engel again relied on
agricultural census data for sales of cattle outside the IRW. [TR at 6196:20-22 (Engel)]. Values
that describe phosphorus within cattle flesh were obtained from the American Society of
Agricultural Engineers. [TR 6196:23-6197:3 (Engel)]. The same approach was used with respect
to deer. [TR at 6197:4-8 (Engel)]. For phosphorus leaving Lake Tenkiller through the power
generation portion of the spillway, Dr. Engel obtained data as to the amount of water leaving the
spillway and the modeled phosphorus content of the water at the depth at which the phosphorus
would be removed and conducted simple multiplication to figure the mass of phosphorus removed
by that source. [TR at 6197:9-15 (Engel)].
390. The removals from all sources were summarized historically in a table and placed in the
report. [TR at 6197:22-25 (Engel)]. The removals were combined with the additions to obtain net
inputs of phosphorus into the IRW watershed. [TR at 6198:1-6 (Engel); OK Ex. 1217].
391. Based on his mass balance analysis, Dr. Engel concluded that the percentage of current
net phosphorus additions to the IRW by source is as follows: poultry—76.2 percent; human—3.2
percent; swine—2.9 percent; dairy cattle—5.2 percent; beef cattle—1.7 percent; commercial
fertilizer—7.5 percent; urban runoff—0.5 percent; industrial sources—2.7 percent; and all other
sources (including wholesale nurseries and golf courses)—0.2 percent. [TR at 6202:21-6203:18;
OK Ex. 1154].
392. Using historical data, Dr. Engel also determined that net phosphorus inputs to the IRW
had changed over time. Specifically, net phosphorus inputs from poultry increased from 9 percent

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of total net phosphorus input in 1949, to 55 percent in 1964, and to 76 percent in 2002. [TR at
6200:15-6201:23 (Engel); OK Ex. 1217].
393. Based upon his mass balance analysis, Dr. Engel opined that—from 1964, when the
input exceeded 50 percent, to the present—poultry production has been “the major contributor of
phosphorus” to the IRW. [TR at 6207:13-6208:8]. Further, he concluded that from 1949 through
2002, poultry has been responsible for approximately 148,000 tons—or about 68 percent—of the
total phosphorus additions of 219,000 tons to the watershed. [TR at 6208:11-24].
394. In a 2002 report commissioned by the Arkansas Water Resources Center and titled
“Illinois River Phosphorus Sampling Results and Mass Balance Computation,” researchers
concluded that during the period of 1997 through 2001, poultry broilers were the most significant
contributor of phosphorus loading to the IRW. [TR at 5984:4-5990:16 (Chaubey); OK Ex. 0513].
395. Defendants criticize Engels’ mass balance analysis on a number of bases. They contend
he did not actually conduct the mass balance analysis himself, but relied on an assistant, Meagan
Smith, to do the analysis. However, the evidence established that Smith primarily assisted Dr.
Engel with the collection of data and computations. [TR 5787:12-19 (Engel)]. Dr. Engel spent
approximately 150-200 hours working on the mass balance analysis. [TR at 5798:12-23 (Engel)].
Engel reviewed Smith’s work multiple times and determined that it was reliable and consistent
with his directions. [TR at 5798:12-23 (Engel)]. Smith worked under the direction of Dr. Engel,
who supervised her work through frequent communication. [TR at 5789:25-5790:9 (Engel)].
396. Defendants also assert the State has not offered any fate and transport analysis
demonstrating the movement of phosphorous from poultry litter-amended fields to waters used for
recreation or drinking water in the Oklahoma portion of the IRW. However, the State’s expert,
Dr. Fisher opined:

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Because [poultry] wastes were all similar and the behavior of that waste under the
influence of rainfall and gravity is all similar or the same, the waste is fungible, its
behavior is fungible, there’s no reason to do a site-specific analysis of fate and
transport in the Illinois River Watershed. If the waste is put on the ground, it will
end up in the streams.
[TR at 1859:14-1860:1 (Fisher)].
397. Defendants’ expert Dr. Timothy Sullivan criticized Engel’s mass balance because it
focused on phosphorus coming into and leaving the IRW as a whole, instead of phosphorus
actually going into and exiting the waters of the IRW. [TR at 10660:9-10661:12 (Sullivan)].
398. The court recognizes that Dr. Engel’s mass balance analysis is not necessarily dispositive
concerning the issue of how much phosphorous from poultry waste actually reaches the waters of
the IRW. However, the court finds it is helpful in assessing the amount of phosphorus being
introduced into the IRW. Therefore, the court accords Dr. Engel’s mass balance analysis some
weight.
5. Geology of the IRW
399. The topography, hydrology, geology and soils of the IRW clearly influence fate and
transport of contaminants in the IRW. [TR at 1593:13-20 (Fisher)].
400. As previously noted, the topography of the IRW is higher in the east and lower in the
west and southwest. [OK Ex. 3351 at OSU0005148; TR at 1594:25-1595:1 (Fisher)]. There is
very little flat land in the IRW. [TR at 1598:3-7 (Fisher)]. Surface hydrology is determined by
the IRWs topography. [TR at 1594:2-3 (Fisher)]. Additionally, groundwater flow follows
underlying fractures in the IRW. [TR at 1604:25-1605:21 (Fisher)]. Surface water and
groundwater in the IRW are “fairly closely linked.” [TR at 1606:14-21 (Fisher)]. The geology of
the IRW is one of mantled karst. [TR at 1608:12-15 (Fisher)]. The soils in the IRW generally
have intermediate to high run-off potential. [OK Ex. 3351 at OSU0005159-60; TR at 1609:16-

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1610:6 (Fisher)]. Activities on the soil surface affect ground water because rainfall will mobilize
soluble materials as well as small particulates and move them downward to infiltrate groundwater.
[TR at 1625:19-1626:3 (Fisher)]. Further, because the karst geology is characterized by fractures,
faults and joints, there is very little soil filtering of groundwater in the IRW. [TR at 1626:4-10
(Fisher)]. Dr. Fisher testified there is no area within the IRW that does not generate runoff. [TR
at 1598:8-16 (Fisher)].
401. Dr. Dwayne Edwards26 testified that “the potential for water quality degradation from
eutrophying nutrients (nitrogen and phosphorus) . . . is particularly high, especially in areas such
as northwest Arkansas where shallow, cherty soils and karstic geology greatly increase interaction
between surface and ground water.” [Ct. Ex. 11 at 9 (Edwards Dep.)].
402. The court accords great weight to the uncontroverted evidence that the geology of the
IRW permits and/or contributes to phosphorus contamination of the waters of the IRW.
6. Chemical Ratio Analysis
403. The State’s sixth line of evidence is a chemical ratio analysis conducted by Dr. Bert
Fisher. Fisher analyzed constituents in poultry waste, cow manure, and wastewater treatment
plant discharges and concluded that, with respect to several factors, poultry waste differs
chemically from cow manure and wastewater treatment plan discharges, and that those differences
can be expressed in ratios of phosphorus, copper, zinc and arsenic. [TR at 1824:20-1837:24
(Fisher); OK Ex. 2525]. Dr. Fisher then examined the chemical concentrations and ratios found in
the State’s soil, edge-of-field, stream sediment, groundwater and lake sediment samples and—he
26

Dr. Edwards, an expert for defendants, holds a Ph.D. from Oklahoma State University, and has been a
professor in the biosystems agricultural engineering department at the University of Kentucky since 1993.
[Court’s Ex. 11 at p. 2 (Edwards Dep.)]. Before that, he was an assistant professor from 1988-1993 and an
associate professor from 1993-1994 in the department of biological and agricultural engineering at the
University of Arkansas. [Id.]. Dr. Edwards’ research has included study of land use practices and their
effect on water quality in northwest Arkansas. [Court’s Ex. 11 at pp. 9-10].

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claims—was able to identify or track the presence of poultry waste through each of those
environmental media. [TR at 1976:14-1977:23; 1996:22-1997:16; 2036:10-18; 2057:25-2058:7;
2083:18-2084:14; 2146:20-2147:2; 2164:19-2166:8 (Fisher)].
404. Dr. Fisher testified that in attempting to track any source of contamination, it is important
to determine whether there are any chemical characteristics that make that source unique. [TR at
1821:22-1822:1 (Fisher)]. He stated that in this case, the analysis:
allows you to identify poultry waste present in the environment both in terms of
what’s a reasonable source as it relates to the concentrations of materials that are
found in the environment. In addition, it allows you to make some statements
concerning the origin of that material once you account for any changes due to
transportation. It would be part of a transport and fate analysis.
[TR at 1832:17-1833:8 (Fisher)].
405. An animal’s waste is a function of its diet; therefore, “[p]oultry waste will reflect the
feeds that they’re given.” [TR at 1800:12-13, 17-18 (Fisher)]. Since each defendant supplies the
feed consumed by its birds in the IRW [See FF #297], Dr. Fisher sampled defendants’ feed and
reviewed their feed formulas. [TR at 1793:12-25 (Fisher)]. He testified that defendants’ feeds
“may differ a bit, but they’re all pretty much the same.” [TR at 1800:14-15 (Fisher)].
406. Dr. Fisher concluded that “the feeds are compounded with very high levels of copper and
zinc compared to the nutritional requirements.” [TR at 1794:12-21]. In addition, defendants add
phosphorus to the feeds to maintain the bone strength necessary to support rapid growth and to
prevent bone breakage during processing. [TR 1796:4-24 (Fisher)]. Defendants—with the
exceptions of Cal-Maine and the Tyson Defendants—have also included an organic arsenic
compound in the feeds. [TR at 1794:24-1795:3; 2694:13-22 (Fisher)]. Dr. Fisher testified that
both the compounded feed and the waste produced by the chickens are high in phosphorus, zinc,
copper, and frequently arsenic. [TR at 1822:2-12 (Fisher)]. Dr. Fisher’s analysis of the

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constituents of poultry waste is comparable with analyses in other published materials. [TR at
1823:4-1824:7; 2812:12-2813:4; 2818:9-16; 2818:17-2819:7; 2825:6-2827:13; 2828:2-2829:9
(Fisher)].
407. Dr. Fisher then compared the chemical composition of poultry waste with that of cattle
waste and wastewater treatment plant effluent. [TR at 1824:8-11 (Fisher)]. He found that poultry
waste differs from both cattle waste and wastewater treatment plant effluent. [TR at 1829:13-19].
He expressed these differences in ratios of total zinc to total phosphorus (Zn:P), total copper to
total phosphorus (Cu:P), total arsenic to total phosphorus (As:P), and total zinc to total copper
(Zn:Cu). [OK Ex. 2518].
408. Dr. Fisher testified cattle waste has a much lower concentration of phosphorus than
poultry waste, extremely low concentrations of zinc and copper, almost no arsenic, and a different
ratio of zinc and copper. [TR at 1824:20-25 (Fisher)].
409. Similarly, he testified that wastewater treatment plant wastes have relatively low levels
of phosphorus and a very different zinc-to-copper ratio than poultry waste. [TR at 1825:2-8; TR at
1833:15-16 (Fisher) (“wastewater treatment plant waste is much richer in zinc or much more
depleted in copper than poultry waste”); OK Ex. 2518].
410. Fisher testified that finding materials with high concentrations of copper, zinc, and
phosphorus indicates that the source is poultry waste. [TR at 1836:20-25 (Fisher)].
411. In analyzing various environmental media, Dr. Fisher first looked at ODAFF records,
records produced by defendants, and investigator reports which identified sections in which
poultry waste had been land applied. [OK Ex. 2516; TR at 1951:20-1954:4 (Fisher)]. He testified
those locations were co-located with the locations of poultry houses and spanned much of the open
space within the IRW. [TR at 1954:9-17 (Fisher)]. He sampled only fields of poultry growers

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affiliated with defendants. [TR at 1964:9-1965:3 (Fisher)]. He sampled 73 fields affiliated with
every defendant except Cal-Maine, which was no longer active in the watershed at the time. [TR
at 1965:4-8 and 19-21; 1966:15-20].
412. Dr. Fisher compared the concentrations of phosphorus, copper, zinc, and arsenic in the
top two inches of the soil to those in the deeper depths and found the concentrations in the deeper
depths were much lower than those in the top two inches. [TR at 1776:24:1777:5 (Fisher)]. He
found that the ratio of copper to zinc in the upper two inches of soil to which poultry waste had
been applied is consistent with the ratios he found in poultry waste. [TR at 1977:6-9 (Fisher)]. He
found that pattern of higher contamination at the surface and lesser or none at depth to be
consistent with surface application, which is how poultry waste is applied. [TR at 1977:8-12
(Fisher)]. Additionally, he found the concentration of phosphorus in the soils, especially the
surface two inches, and the concentrations of copper, zinc, and arsenic in the poultry-applied fields
were inconsistent with contamination from cattle waste, because he “simply can’t make the
concentrations of phosphorus, copper, zinc, and arsenic that [he] observe[d] in the top two inches
of the 73 sample fields by mixing cattle waste into those soils.” [TR at 1977:13-23 (Fisher)].
413. Based on his analysis, Dr. Fisher further concluded that the constituents of poultry waste
present on land-applied fields (i.e., phosphorus, copper, zinc, and arsenic) are “available for
transportation,” meaning that they could exit the field in runoff or infiltrate as dissolved
constituents in water. [TR at 1997:3-16 (Fisher)].
414. Next, Dr. Fisher analyzed the edge-of-field runoff samples collected by the State. [OK
Ex. 2500]. He selected edge-of-field sampling locations based on historical land application
records, eyewitness reports of land application, aerial photograph review and topographic
infradata. [TR at 2708:7:2709:6 (Fisher)]. Based on the edge-of-field data, he concluded that

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runoff from fields where poultry waste had been land applied contains constituents from poultry
waste—namely phosphorus, zinc, copper, and arsenic, and that every time there is runoff, poultry
constituents move into the watershed and down gradient. [TR at 2033:22-2034:11; 2036:10-18
(Fisher); OK Ex. 2500].
415. After analyzing edge-of-field runoff samples, Dr. Fisher examined the State’s stream
sediment sampling data. [OK Ex. 2503; TR at 2036:19-24 (Fisher)]. He chose to perform an
analysis of stream sediment data because stream sediments are down gradient from edge-of-field
runoff sites and because streams contain sediments that have moved from areas at higher
elevations, up gradient. [TR at 2036:25-2037:6 (Fisher)]. The stream sediment analysis was
important in the evaluation of the fate and transport because the chemical composition of the
sediments could be examined in comparison with poultry waste and for the transport history. [TR
at 2037:7-14 (Fisher)]. Dr. Fisher and his investigation teams selected approximately 100 stream
sampling locations where there were gradient changes that might result in the accumulation of
finer-grain material, because that is typically where pollutants such as phosphorus, zinc, copper
and arsenic would reside and be concentrated. [TR at 2037:15-2038:12 (Fisher)]. Sediment
samples from those locations were analyzed for, inter alia, total phosphorus, total zinc, total
copper and total arsenic. [TR at 2038:13-18 (Fisher); OK Ex. 2503]. The sediments showed
“some fairly substantial” enrichments in phosphorus, as well as in zinc, and some enrichments in
copper compared to control soils; and “[t]hey’re consistent with putting constituents of poultry
waste in the stream sediments and leaching away of the copper.” [TR at 2057:14-21 (Fisher)].
Fisher testified the arsenic data “is a little more problematic, but it suggests that arsenic is
accumulating in stream sediments.” [TR at 2057:22-24 (Fisher)]. Dr. Fisher concluded, based on

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his analysis of the samples, that poultry waste is contaminating stream sediments in the IRW. [TR
at 2057:25-2058:8 (Fisher)].
416. Dr. Fisher also analyzed groundwater within the IRW. [TR at 2059:20-24 (Fisher)]. He
sampled natural resurgences of underground water at springs, some water wells, and water from
shallow alluvial aquifers (geoprobe samples). [TR at 2060:1-6 (Fisher)]. As previously discussed,
groundwater is susceptible to contamination from surface contaminants because the soils are
relatively thin and permeable and the IRW has a karst-type geology with large conduits to move
contaminants. [TR at 2060:9-13 (Fisher)].
417. Dr. Fisher compared the concentrations of contaminants in the groundwater samples with
those in edge-of-field samples. [OK Ex. 2502]. He testified, with respect to zinc and copper
concentrations, that “the edge-of-field samples truly do blend seamlessly . . . with samples
collected from the geoprobes and from the springs.” [TR at 2079:17-25 (Fisher); OK Ex. 2502].
He concluded that because cattle waste contains low levels of zinc and copper, “the only
reasonable source for high levels of zinc and copper” found in the springs and alluvium is poultry
waste. [TR at 2080:15-18; 2082:6-12]. Dr. Fisher testified the copper and zinc data coupled with
elevated phosphorus levels in groundwater and high levels of arsenic in one stream suggest that
poultry waste is entering the ground waters of the IRW. [TR at 2080:9-14; 2083:7-27; 2084:1-14
(Fisher); Ex. 2052].
418. Finally, Dr. Fisher evaluated Lake Tenkiller sediments. [TR at 2084:17-19 (Fisher)]. He
did so because Lake Tenkiller is, in his words, the “end of the line for sediments” in the IRW.
[TR at 2084:20-2085:8 (Fisher)].
419. In investigating the lake sediments, Dr. Fisher took core samples from four locations, cut
the cores into depth segments, analyzed the depth segments chemically and, by looking at the

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content of lead-210, was able to obtain the “date of deposition for each sediment integral.” [TR at
2086:2-10 (Fisher)]. According to Dr. Fisher, this process permits the reconstruction of a history
of chemical inputs to the lake sediments. [TR at 2086:11-13 (Fisher)].
420. Dr. Fisher compared the composition of the lake sediment cores to the composition of
control soils. [OK Ex. 2508; TR at 2131:21-2135:24 (Fisher)]. In analyzing the lake core
sampling data, Dr. Fisher found that concentrations of zinc increased with the concentrations of
total phosphorus; the concentration of total copper increased with the total concentration of
phosphorus; and as copper increased, zinc increased. [TR at 2146:15-19 (Fisher); OK Ex. 2511].
He concluded that the source of contamination in the Lake Tenkiller sediments is poultry waste.
[TR at 2146:20-2147:2 (Fisher)]. Dr. Fisher based this conclusion on his observations of similar
chemical relationships in poultry waste, soils from land-applied fields, edge-of-field runoff and
stream sediments. [TR at 2145:7-2146:11 (Fisher)]. He also found that the increase in poultry
population in the IRW over time correlates with changes in phosphorus concentrations in Lake
Tenkiller sediments. [TR at 2164:19-2166:8 (Fisher); OK Ex. 2513].
421. Dr. Fisher’s ratios analysis is novel and unprecedented in the scientific literature. [TR at
2235:4-15; 2238:20-2239:2 (Fisher)]. Copper, zinc, phosphorus and arsenic occur in nature
regardless of the presence of poultry litter, and have diverse sources. [TR at 2261:9-22; 2263:6-12
(Fisher); 9008:13-9009:2 (Connolly)].
422. Dr. Fisher’s analysis assumes implicitly that phosphorus, zinc, copper and arsenic share
common fate and transport characteristics; otherwise, finding them together in the environment
would say nothing as to source. Yet Dr. Fisher admitted that this assumption is not well founded.
[TR at 1995:24-1996:2; 2330:24-2331:15 (Fisher)]. Copper, zinc, arsenic and phosphorus exhibit
different mobility, sorption and bonding characteristics. [TR at 9003:15-9008:17 (Connolly)].

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The State’s own data confirms that the ratios of these constituents are quite different in poultry
litter and litter-amended soil than they are in the surface waters and sediments of the IRW. [TR at
9010:25-9021:2 (Connolly); DJX6096; DJX6105].
423. Additionally, defendants’ expert Steve Larson, a hydrologist specializing in groundwater,
testified that the Dr. Fisher’s data did not demonstrate a relationship between the edge-of-field
samples and groundwater samples. [TR at 9734:4-21 (Larson)]. Larson criticized Dr. Fisher’s use
of arsenic, copper, zinc and phosphorus as tracers because they do not share common fate and
transport characteristics. [TR at 9693:6-10; 9695:16-9696:2 (Larson)]. He offered two reasons.
First, some of the elements are considered cations in the subsurface and some are anions. [TR at
9693:11-20 (Larson)]. Copper and zinc have positive charges and, as a consequence, they react in
a certain way with the environment, either in the water or associated with the solid media. [TR at
9693:20-24 (Larson)]. In contrast, phosphorus has a negative charge and reacts differently. [TR
at 9693:25-9694:2 (Larson)]. Second, all four elements tend to be relatively immobile within the
subsurface environment, that is, they have a tendency to either react to or absorb onto mineral
surfaces, and they do so in different ways under different groundwater conditions. [TR at
9694:3-13 (Larson)]. As a result, some of those chemicals will adsorb more and some less, and as
the water containing those elements moves through the groundwater environment they are affected
either more or less, depending on their particular characteristics. [TR at 9694:14-19 (Larson)].
For example, zinc tends to be more soluble on a relative scale than copper and consequently, it
may be more mobile than copper under certain circumstances. [TR at 9694:10-22 (Larson)].
Those differences in mobility affect how they might be transported through the environment and
how their overall movement will occur. [TR at 9694:22-25 (Larson)]. Generally speaking, these
elements tend not to be mobile within the groundwater environment; rather, they tend to be

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“highly retarded,” which means they tend to be adsorbed or react in the subsurface environment.
[TR at 9695:1-5 (Larson)]. In contrast, other elements are “conservative,” that is, they do not react
or interact with the subsurface environment and consequently, they essentially move with the
water. [TR at 9695:8-12 (Larson)]. Thus, if the water is moving at one foot per day, then that
particular dissolved substance will also move at the rate of one foot per day. [TR at 9695:13-15
(Larson)]. Dr. Fisher’s charts displayed the relationships between copper and phosphorus, zinc
and phosphorus and arsenic and phosphorus together. Larson prepared charts comparing the data
separately. [DJX1624, DJX1625, DJX1626, DJX1627, DJX1628]. He concluded “[t]he
relationships you get from looking at the individual groups are different from the relationship that
you get from looking at the edge-of-field information that’s portrayed on here.” [TR at 9698:1017 (Larson)].
424. Defendants’ expert Dr. Connolly rejects both Dr. Fisher’s ratio analysis and Dr. Olsen’s
pathway analysis as attempts to “track [poultry waste] using chemicals that are ubiquitous in the
watershed.” [TR at 9002:2-8 (Connolly)].
425. Additionally, defendants criticized the State’s edge-of-field sampling program as being
insufficient in terms of documentation of water flow. Dr. Sullivan stated:
The edge-of-field samples were collected largely from ditches. There was no
permission granted to go onto the landowner’s land and set up an apparatus with
which to collect flow coming off of pastureland. And by and large, those samples
were not collected from flowing water; they were collected from a ditch that was
convenient to the road where the samplers could get without having permission to
get onto the land.
So there’s no way to know where that water came from. Perhaps some of it came
off a field. We don’t know. It may have come from something upslope associated
with that ditch. And if it did come off the field, we don’t know what the source of
phosphorus on the field was that may have contributed the phosphorus to the edgeof-field water.

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[TR at 10751:7-23 (Sullivan)]. Dr. Sullivan testified that the edge-of-field sampling method also
failed to document whether the water in the ditch “was flowing somewhere else or it just stayed in
the puddle or that ditch and eventually infiltrated into the soil.” [TR at 10753:2-5 (Sullivan)].
426. With respect to the source of the sampled ditch water, Fisher testified he was confident
the samples were “representative edge-of-field runoff” because they “have run off this field or
other fields nearby” and they’ve “interacted with local soils.” [TR at 2712:8-17 (Fisher)]. He
explained he had no concern that the runoff was ponded on the edge of a dirt road because the
“dirt road is made from local soil” and “if the soil is uncontaminated, then the sample will be
uncontaminated,” and “[i]f the soil in the road is contaminated with the constituents we’re looking
at, primarily phosphorus, copper, zinc and arsenic, then it would reflect high concentrations
independent of the conditions in the field.” [TR at 2712:24-2713:13 (Fisher)]. He also discounted
the effect of cars running through a sampled area, stating that “[c]ars aren’t big sources of
phosphorus, copper, zinc and arsenic.” [TR at 2714:1-10 (Fisher)]. In Dr. Fisher’s opinion, other
than background amounts from background soils, no other sources of copper, zinc, arsenic and
phosphorus could possibly contribute to the pond at the levels of poultry waste. [TR at 2714:1115 (Fisher)].
427. Dr. Fisher testified the protocols for edge-of-field water sampling did not require that the
water be “running,” and it did not matter whether the samples were from flowing or standing
water because all samples were taken within a reasonable time after a rain event, and thus
represent runoff. [TR at 2717:8-2718:5 (Fisher)].
428. The court finds Dr. Fisher’s chemical ratio analysis is not particularly reliable because
the underlying assertion that copper, zinc, arsenic and phosphorus are suitable tracers is not well
founded. The court, therefore, gives the analysis little weight.

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7. Pathway Concentration Analysis
429. The State’s seventh line of evidence is a pathway concentration analysis conducted by
Dr. Roger Olsen.27 His analysis a “traditional gradient fate and transport analys[i]s, where [one]
look[s] at concentrations along pathway steps from the source to the ultimate location where it will
be deposited, and determine[s] the concentrations to see if the concentrations differences decrease
in a logical manner from upgradient to downgradient, from start to finish, consistent with [one’s]
understanding of the fate and transport of those contaminants.” [TR at 5212:4-18 (Olsen)]. Dr.
Olsen testified that if one observes a decrease of contaminants along the transport steps, “[i]t’s a
logical conclusion that what you see at the end of the chain or what you see in the instep in this
lake, in Tenkiller or the rivers, came from the source—the source, which is poultry waste.” [TR at
5212:19-25 (Olsen)].
a. Leachate Test
430. Dr. Olsen used the EPA’s Synthetic participation Leachate Procedure (“SPLP”) test,
which is a traditional method by which the EPA and other scientists evaluate the mobility of
wastes that are subject to rainfall. [TR at 5227:13-17 (Olsen)]. His intent was to compare poultry
waste and cattle waste leachate and use the results of that comparison to identify and distinguish
the wastes in the environmental samples. [TR at 5210:7-14, 5227:18-5228:4 (Olsen)]. In
conducting his test, Dr. Olsen first compared poultry waste leachates with dry and fresh cattle
waste leachates and evaluated the differences in the concentrations of certain constituents—
namely, copper, zinc, arsenic, potassium, total dissolved phosphorus and soluble reactive

27

Dr. Olsen received a Ph.D. in geochemistry from the Colorado School of Mines, where he was also an
instructor of chemistry and geochemistry. [TR at 5203:10-14, 5204:9-12 (Olsen)]. He is employed at
Camp Dresser & McKee, Inc. [TR at 5466:13-20 (Olsen)]. He has more than 30 years consulting
experience in the area of environmental geochemistry, during which he has studied environmental
contamination at more than 500 sites. [TR at 5204:20-5205:7 (Olsen)].

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phosphorus. [TR 5210:7-14, 5233:2-10 (Olsen)]. He prepared a chart that summarizes the data
from the leachate test. [TR at 5230:17-5231:3 (Olsen); OK Ex. 3802]. Dr. Olsen then listed the
factor by which the concentration of each poultry waste constituent in the leachate exceeded or
was less than the concentration of the same constituents in fresh and dry cattle manure leachate.
[TR at 5231:25-5232:9 (Olsen); OK Ex. 3802]. The purpose of the factor analysis was to
determine which constituents have the biggest differences. [TR at 5232:19-5233:1 (Olsen)]. He
concluded that arsenic, copper, zinc, potassium, total dissolved phosphorus and soluble reactive
phosphorus were the constituents that would best distinguish poultry waste from cattle manure in
environmental samples. [TR at 5233:2-10 (Olsen)].28 He opined that comparing leachate
concentrations in this manner is “one of the most important comparisons to do because this is
actually what’s being potentially mobilized into the water, so that water ends up as runoff or it
ends up as infiltration.” [TR at 5237:21-5238:2].
431. He prepared a table using the results of his leachate concentration study and Dr. Engel’s
mass balance analysis of the amount of waste in the basin to determine potential leachable masses
of contaminants from poultry waste versus cattle manure in the IRW. [TR at 5252:8-5253:2
(Olsen); OK Ex. 3743].

28

Dr. Olsen’s leachate tests showed that total dissolved arsenic in poultry waste was 47.6 times as high as
arsenic in fresh or dry cattle manure. [TR at 5233:14-19 (Olsen)]. The concentration of dissolved copper
in poultry waste is 188 times higher than dissolved copper in fresh manure and 24 times the concentration
in dry cattle manure. [TR at 5234:7-15 (Olsen)]. Potassium concentrate in poultry waste is 13.4 times
higher than potassium in fresh cattle manure and 51.4 times higher than potassium in dry cattle manure.
[TR at 5234:21-5235:4 (Olsen)]. Zinc concentration in poultry waste is 21.6 times higher than fresh cattle
manure and 25.9 times higher than dry cattle manure. [TR at 5235:5-9 (Olsen)]. Soluble reactive
phosphorus (“SRP”) concentration in poultry waste was 4.3 times higher than SRP in fresh cattle manure
and 5 times higher than SRP in dry cattle manure. [TR at 5235:10-14 (Olsen)]. Dissolved P concentrations
were 4.3 times higher than dissolved P concentrations in fresh cattle manure and 5.83 times higher than
dissolved P concentrations in dry cattle manure. [TR at 5235:16-25 (Olsen)].

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432. Overall, based on his leachate test, Dr. Olsen concluded that the composition of poultry
waste and cattle manure are distinct and that “we should be able to observe these distinct
differences in environmental samples.” [TR at 5303:15-23 (Olsen)].
b. Design, Methodology and Results
433. The State’s experts used a “component pathway sampling approach” to conduct the
pathway analysis. [TR at 5265:1-5 (Olsen)]. Dr. Olsen testified:
In our sampling efforts, we focused on collecting samples from what I call every
environmental component; that is, every media and every transport step from the
source—or potential source of contamination through the environment to its
ultimate location in Tenkiller.
So, for instance, poultry waste, we would sample the poultry waste, we would
sample the soils where it had been disposed, we would sample the edge-of-field
runoff, we would sample small tributaries where that would end up and larger
tributaries, and then finally we would sample Lake Tenkiller. So it’s a whole set of
sequential transport steps to determine whether there’s a complete pathway or not.
[TR at 5265:8-22 (Olsen)].
434. For his analysis, Dr. Olsen divided the sampling data into “logical groups.” [TR at
5318:8-9 (Olsen)]. Specifically, he analyzed concentrations in “solid samples” including poultry
waste, soils on the fields, sediments in the rivers and sediments in Lake Tenkiller, and compared
them to “reference soils.” [TR at 5318:9-15 (Olsen)]. Next he compared concentrations in surface
waters, including the runoff surface water from land-applied fields (the edge-of-field samples), the
water from small tributaries, the water from larger rivers, the water from Lake Tenkiller, and
“reference streams.” [TR at 5318:16-5319:1 (Olsen)]. He also compared concentrations in
groundwater, including alluvial waters, springs and residential wells. [TR at 5319:1-4 (Olsen)].
435. Dr. Olsen determined that the concentration of phosphorus in all solid media in the IRW
exceeded reference soil concentrations. [TR at 5339:2-8 (Olsen)]. He observed that phosphorus
concentrations start out higher on the fields at about 1,050 mg/Kg, or 2 percent. [TR at 5335:10-

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13 (Olsen); OK Ex. 3808]. In river sediments, the phosphorus concentrations decreased to 522
mg/Kg. [TR at 5335:13-16 (Olsen); OK Ex. 3808]. In Lake Tenkiller sediments, the phosphorus
concentrations increased to 967 mg/Kg. [TR at 5335:15-16 (Olsen); OK Ex. 3808]. Dr. Olsen
opined that the increased concentrations in the lake sediments are attributable to the large amount
of phosphorus transported into the lake, along with a variety of processes in the lake, including
uptake with algae and a settling process that incorporates a portion of the phosphorus in the water
into the upper sediments. [TR at 5336:19-5337:6 (Olsen)]. He testified the same phenomena
occurred in Lake Tenkiller sediments with respect to concentrations of copper, zinc and arsenic.
[TR at 5337:7-10 (Olsen)]. Olsen concluded that the concentrations of phosphorus, copper, zinc
and arsenic found in the samples collected from solid media were consistent with known fate and
transport processes and showed that poultry waste from land applied fields was being transported
into the river sediments and lake sediments. [TR at 5343:24-5344:12 (Olsen)].
436. Dr. Olsen performed a similar analysis of surface waters, examining the components of
water samples from runoff from poultry-applied fields in a logical pathway to Lake Tenkiller. [TR
5345:10-19 (Olsen); OK Ex. 3590]. With respect to surface water media analysis, Dr. Olsen
found phosphorus concentrations exceeded reference levels in each of the environmental media—
edge-of-field, water in small tributaries, water in larger rivers, and water in Lake Tenkiller. [TR at
5353:9-22 (Olsen); OK Ex. 3590]. The edge-of-field data showed “extremely high concentrations
of phosphorus” (over 8,000 micrograms per liter, or 8.14 milligrams per liter). [TR 5353:13-24
(Olsen); OK Ex. 3590]. Similarly, the small tributaries data showed “very large concentrations”
of phosphorus, both in high-flow and base-flow. [TR at 5354:25-5355:7 (Olsen); OK Ex. 3590].
The data also demonstrated “a gradient between the small tributaries into the medium and large
size and finally the lowest concentration in Lake Tenkiller.” [TR 5355:8-18 (Olsen); OK Ex.

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3590]. Overall, Dr. Olsen concluded that for the key contaminants—phosphorus, copper, zinc and
arsenic—“there was a logical connection between the edge-of-field and the ultimate deposition in
Lake Tenkiller and there was a completed pathway and that the contamination was being
completely transported throughout the IRW from the source location; that is, the edge-of-field,
into Lake Tenkiller.” [TR 5352:6-14 (Olsen)].
437. Dr. Olsen found that about half of the total phosphorus in the State’s edge-of-field
samples was soluble reactive phosphorus (“SRP”). [TR at 5362:14-5363:2 (Olsen)], and testified
that the amount of SRP is typically 80 percent or more of total phosphorus. [TR at 5363:8-21
(Olsen)]. The data showed a dilution in concentration of SRP down gradient until Lake Tenkiller,
where it uptakes to algae and becomes a particulate. [TR at 5363:25-5364:8 (Olsen)]. Olsen also
testified that as organic-bound phosphorus moves down gradient, it “does break down a little bit in
the environment and we end up with a little bit more soluble-reactive” phosphorus. [TR at
5367:20-23 (Olsen)].
c. Olsen’s Conclusion
438. In conclusion, Dr. Olsen found that “[b]ased upon my entire [pathway] analysis of the
compositions of the various major sources of waste, the level of contamination and my fate and
transport analysis, I believe that a portion—a substantial portion of the phosphorus within the IRW
waters is a result of runoff from . . . poultry land-applied fields.” [TR at 5397:23-5398:11
(Olsen)].

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d. Defendants’ Critique
439. Defendants’ expert, Dr. John Connolly,29 rejects Dr. Olsen’s pathway analysis as an
attempt to “track [poultry waste] using chemicals that are ubiquitous in the watershed.” [TR at
9002:2-8 (Connolly)].
440. Dr. Connolly disagreed with Dr. Olsen’s conclusion that the data he extracted
demonstrates changes consistent with known fate and transport mechanisms. [TR at 9033:7-10
(Connolly)]. He explained that “absent following a real pathway, you’re looking at unconnected
data and it’s hard to make that comparison between unconnected data.” [TR at 9033:12-16
(Connolly)]. Making such comparisons may lead to “false conclusions.” [Id.] According to Dr.
Connolly, a proper gradient analysis follows a known pathway, “[s]o earlier when we were
looking at the Illinois River from upstream to downstream and looking at how concentrations
change, that’s a gradient analysis.” [TR at 9030:20-9031:1 (Connolly)]. A proper gradient
analysis, Dr. Connolly testified, “requires you to move along a pathway and look at the
concentrations as you move along the pathway.” [TR at 9031:2-6 (Connolly)].
441. In Dr. Connolly’s opinion, Dr. Olsen’s conclusion that concentrations of phosphorus,
copper, arsenic and zinc in tributaries are much higher is being driven by his inclusion in the study
of two tributaries (designated by plaintiffs as wastewater treatment plant-impacted tributaries)
sampled downstream of the wastewater treatment plants. [TR at 9393:22-9394:16 (Connolly)]. He
acknowledged, however, that even taking out those two tributaries, the remaining tributaries still
show a substantial amount of SRP. [TR at 9395:6-10 (Connolly)]. Further, Dr. Connolly admitted
29

Dr. Connolly holds a Ph.D. in environmental health engineering from the University of Texas. He
taught undergraduate and graduate level courses in environmental engineering for fourteen years a
Manhattan College, where he also conducted EPA research. [TR at 8824:7-18 (Connolly)]. He worked for
two years at the EPA lab in Gulf Breeze, Florida. [TR at 8823:19-21 (Connolly)]. He is a member of the
EPA’s standing committee on environmental engineering and the American Academy of Environmental
Engineers. [TR at 8826:13-8827:2 (Connolly)].

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that 82 percent of the phosphorus leading to Lake Tenkiller is from nonpoint sources and
phosphorus from land applied poultry waste makes its way to the Illinois River and Lake
Tenkiller. [TR at 9142:5-20; 9183:15-22 (Connolly)].30
e. Weight Accorded to Pathway Concentration Analysis
442. The court finds Dr. Olsen’s pathway concentration analysis to be of some value in
establishing whether and to what extent poultry waste is responsible for phosphorus contamination
of the waters of the IRW.
8. Geochronological Sediment Analysis
443. As previously noted, Dr. Fisher evaluated Lake Tenkiller sediments as part of his ratio
analysis. Based on the chemistry of Lake Tenkiller sediment samples, Dr. Fisher identified
poultry waste as the source of phosphorus contamination in Lake Tenkiller. [TR at 2145:72146:11; 2146:20-2147:2 (Fisher)]. Dr. Fisher employed a dating method to reconstruct the
history of chemical inputs to Lake Tenkiller sediments since the dam was closed in 1954 and
compared that age-dated chemistry to historical animal populations within the IRW. [TR at
1678:25-1679:1; 1679:7-11; 2086:2-14; 2087:22-2088:5 (Fisher)]. He concluded, based on this
comparison, that the phosphorus composition of the Tenkiller sediments is driven by the increase
in poultry population. [TR at 2088:6-12 (Fisher)].

30

Dr. Connolly’s most serious criticism of the State’s case goes—not to whether phosphorus from landapplied litter is ending up in the waters of the IRW—but instead, to whether the phosphorus has an adverse
impact on water quality. Dr. Connolly stated:
My testimony relates to whether or not nonpoint sources of which that poultry litter application
would represent some fraction is substantively impacting the water quality, and my conclusion is that
it is not.
[TR at 9183:24-9184:3 (Connolly)]. This criticism is addressed more extensively in Section 13 below.

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444. Dr. Fisher took core sediment samples from four locations, ranging from closest to the
dam to closest to the river. [TR at 2096:5-12 (Fisher); OK Ex. 2506]. Each core was cut into
depth segments “because depth in the core is a way of keeping track of where you are [in time].”
[TR at 2100:16-2101:19 (Fisher)]. The top part of the core sediment reflects the very recent past
and the deeper portions reflect “earlier and earlier times.” [TR at 2101:20-2102:5 (Fisher)].
445. The samples were dried and analyzed for a large list of parameters, including total
phosphorus, total zinc, total arsenic, total copper, as well as content of lead-210 and cesium-137—
two substances used to help determine the age of sediment deposits. [TR at 2101:9-14, 2102:212103:1 (Fisher); OK Ex. 2507]. Scientists assume that if one can assign the time of deposition of
the material in a slice of the sediment core based on its location in the core and the lead-210 and
cesium analysis, then other chemicals, like phosphorus, copper, zinc and arsenic that are
associated in that slice were deposited at the same time. [TR at 2103:10-23 (Fisher)].
446. Lead-210 is a weakly radioactive isotope of lead commonly used by scientists to agedate sediments. [2105:3-7 (Fisher)]. It results from the decay of uranium-238 in the earth’s crust
to radon, which then decays to lead-210. [TR at 2104:4-17 (Fisher)]. Lead-210 falls from the
atmosphere onto the surface of the IRW, and when there is runoff, it moves into the lake. [TR at
2104:19-2105:4 (Fisher)]. Lead-210 is useful for dating because it has a finite rate of decay, with
a half life of about 22 years. [TR at 2105:17-19, 2106:10 (Fisher)]. It is a radioisotope that is
naturally produced everywhere. [TR at 2107:12-13 (Fisher)].
447. In contrast, cesium-137 is derived from thermonuclear detonations or reactor accidents
such as Chernobyl. [TR at 2107:10-21 (Fisher)]. Dr. Fisher testified that cesium-137 is “a pulsed
input as opposed to a continuous input like lead-210.” [TR at 2108:1-3 (Fisher)]. Further, “when
you look at cesium-137 in sediments, you’re trying to look for a maximum and that maximum

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would be interpreted, in the absence of any other knowledge, as about 1964.” [TR at 2108:12-15
(Fisher)].
448. Dr. Fisher elected to use lead-210 to date the core samples. Specifically, he compared
the total lead in the sediments to known changes in atmospheric inputs of lead based on the
historical use and phase-out of leaded gasoline. [TR at 2087:14-21, 2112:3-21 (Fisher)]. Dr.
Fisher testified that, in the early 1970s, about half of all U.S. lead production went into tetraethyl
lead that was then burned and dumped into the atmosphere. [TR at 2113:9-11 (Fisher)]. This total
lead analysis provided “an independent check on dating, given that we have a chemical input to
the lake, whose timing is known, that is independent of other activity in the watershed.” [TR at
2112:22-2113:2 (Fisher)].
449. Dr. Fisher testified that because the concentrations of lead in poultry waste are too low
for poultry waste to be the source of lead in lake sediments, by comparing concentrations of total
lead found in sediment cores with the year of deposition based on lead-210 dating, he was able to
confirm that “lead-210 provides a better coincidence in time with the phase-out of lead in gasoline
and the behavior of the lead in the core than cesium-137.” [TR 2114:9-2115:13; 2115:232116:18; 2117:1-20 (Fisher); OK Ex. 2510].
450. Dr. Fisher next established that the sedimentation patterns observed in the core sediment
samples are consistent with the general expectation that the sedimentation rate will be higher
toward the river end of Lake Tenkiller and lower toward the dam end. [TR at 2128:13-2129:18;
OK Ex. 2526]. This variation occurs because sediments fall from suspension as they are
transported in water through the lake and the primary contributors of sediments in the lake are the
Illinois River and Caney Creek. [TR at 2129:19-2130:6 (Fisher)].

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451. Dr. Fisher compared the compositions of control soils to the total concentrations of
phosphorus, copper, arsenic, and zinc present in the core sediment samples. [TR at 2130:212131:8; 2133:1-2135:24 (Fisher); OK Ex. 2508]. He found that the lake sediment showed
contamination relative to the control soils, and that phosphorus contamination has been increasing
through time. [TR at 2136:5-12; 2138:11-14 (Fisher)].
452. Although the most recent samples taken closest to the river end of Lake Tenkiller fall off
slightly, Dr. Fisher observed that the overall trend in phosphorus is upward. He concludes that
“the source” of phosphorus in the sediments has increased over time. [TR at 2137:16-25;
2138:11-14 (Fisher)]. Dr. Fisher testified the samples also show that zinc, arsenic, and copper
concentrations are increasing, which indicates the source of those substances is increasing. [TR at
2139:23-2140:16; 2141:20-22; 2143:11-2144:1 (Fisher)].
453. Dr. Fisher determined the IRW’s poultry population over time using defendants’
production numbers as well as USDA agricultural census data. [TR at 1664:22-1665:3; 1666:221667:3; 1668:2-5 (Fisher); OK Ex. 2522]. Defendants reported producing an annual average of
over 141 million broilers, pullets and turkeys in the IRW. [OK Ex. 2522]. From country-wide
agricultural census data, Dr. Fisher estimated that the number of birds in the IRW increased by a
factor of almost eight from the date of dam closure (1954), and from about 12 million in 1950 to
approximately 152 million in 2002. [TR at 1678:19-24; 1679:7-11; 1680:4-18 (Fisher); OK Ex.
2529; OK Ex. 2489].
454. Using a measure of animal units of 1,000 pounds, Dr. Fisher compared the biomass of
poultry against the biomass of humans, swine and cattle, as reported by Dr. Engel. [TR at
1683:23-1684:6]. In other words, he compared “how many pounds of cows there are versus how

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many pounds of poultry there are,” to place creatures “on a fair comparison basis.” [TR at 1684:713]. He concluded that:
[T]he number of poultry in terms of their total number of animal units have shown
a consistent increase within the Illinois River, number one . . . Number two, that
they substantially outweigh any other of the animal units considered here. They
outweigh humans, they outweigh swine, they outweigh dairy cattle, outweigh beef
cattle. And in . . . the distant past, they’ve outweighed the sum of all of them for
some time. . . . [T]he animal units of poultry present in the Illinois River Watershed
are the dominant mass of animal present.
[TR at 1684:14-1685:1 (Fisher)].
455. Finally, Dr. Fisher compared the number of animal units to the levels of phosphorus
present in Lake Tenkiller sediments as a function of time. [TR at 1686:24-1687:2 (Fisher); OK
Ex. 2513; TR at 2164:19-2166:1, 2502:7-2503:5 (Fisher)]. Dr. Fisher found that:
[T]he change in phosphorus that’s observed in the lake sediments appears to have a
form in time that looks very much like the change in the number of animal units of
poultry within the watershed and is dissimilar from the changes over time of the
cattle population in terms of animal units, the human population in terms of animal
units, the swine population in terms of animal units or any combination thereof. So
if I added up humans and cattle or cattle and swine or humans and cattle and swine,
I can’t generate the same general shape of increase in time in the phosphorus
concentrations.
[TR at 2161:15-2162:1 (Fisher)].
456. Defendants criticize Dr. Fisher’s animal unit analysis on a number of bases. Dr. Fisher
admitted that in addition to changes in the poultry population since 1950, feeds and supplements
have changed, chickens grow faster and the life-span of each chicken is shorter. [TR at 2485:92487:6 (Fisher)]. He denied, however, that the shorter life span results in less manure. [TR at
2487:7-16 (Fisher)]. He stated that his analysis “integrates all of the birds that are grown and
takes into consideration the lifecycle.” [Id.] Further, defendants criticized him for not separately
calculating poultry waste production since 1950. [TR at 2487:20-2488:7 (Fisher)]. Dr. Fisher
asserted his use of animal unit figures did not intrinsically rely on poultry litter production. [Id.]

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457. Defendants also challenge the validity of Dr. Fisher’s animal unit analysis on the basis
that the lifespan of a broiler poultry is typically 42 days, while the lifespan of other species in the
comparison is at least one year. [2536:17-2537:9 (Fisher)]. The criticism calls into serious
question Dr. Fisher’s biomass analysis, as it appears to equate the weight of animal units of
shorter-lived poultry with the weight of animal units of longer-lived dairy cattle and beef cattle.
458. Defendants’ expert Dr. Connolly criticized Dr. Fisher’s use of lead-210 rather than
cesium-137 in dating the core samples. [TR at 9077:25-9080:6 (Connolly)]. Dr. Connolly
contends that, had cesium-137 been used, the dates assigned by Dr. Fisher were off as much as 20
years.
459. The court gives little weight to Dr. Fisher’s geochronological analysis.
9. Poultry House Density Analyses
460. Two State experts—Dr. Engel and Dr. Stevenson—performed separate and independent
poultry house density analyses.
a. Dr. Engel’s Analysis
461. One of the ways to determine the fate and transport of a pollutant is to “look at different
land use activities and land management activities, and look at the water quality in those land use
and land management activities and try to determine the mathematical relationship between the
two, cause and effect relationship.” [TR at 5993:20-5994:10 (Chaubey)]. Dr. Engel performed
such a study, examining the relationship between measured phosphorus concentrations in IRW
streams and poultry house density. [TR at 5738:2-6 (Engel)].
462. Dr. Engel focused on poultry house density because poultry produce waste; the waste
contains phosphorus; phosphorus is disposed on the land near the poultry houses; when the waste
is disposed, some portion runs off with runoff; and the waste increases soil test phosphorus when

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applied at typical rates. [TR at 5769:4-15 (Engel)]. His hypothesis was that the density of poultry
houses should be a predictor of the amount of phosphorus in water coming from those watersheds.
[TR at 5769:15-5770:3 (Engel)].
463. In Dr. Engel’s study, automatic samplers were placed at 14 sub-watershed outlets to
collect data as water ran off. [TR at 5738:7-10 (Engel)]. The sub-watersheds were selected based
on a range of poultry house densities within them, and data was analyzed to identify phosphorus in
the water. [TR at 5738:10-14 (Engel)]. The intent was to avoid point sources within those
watersheds, although Dr. Engel testified that subsequently, a couple of watersheds were identified
as having point sources of phosphorus within them, so those were excluded from analysis. [TR at
5738:15-19 (Engel)]. Samples were taken both during runoff events and at base flow. [5739:6-7
(Engel)]. Poultry house densities for watersheds were identified based on Dr. Fisher’s work, and
both active and inactive poultry houses within the IRW plus a two-mile buffer were included. [TR
at 5739:14-17; 6630:1-6631:18 (Engel)].
464. From the study, Dr. Engel was able to determine the relationship between the presence of
poultry house operations and increased phosphorus in streams flowing out of the sub-watersheds
in the IRW. [TR at 5738:20-24 (Engel)]. For example, the 2005-2006 data show a total
phosphorus concentration of over 0.180 mg/L in a sub-watershed with seven poultry houses per
square mile. [TR at 5770:7-20 (Engel)]. In contrast, the expected total phosphorus concentration
in a sub-watershed with no poultry houses is 0.0170 mg/L. [TR at 5773:13-21 (Engel)].
465. Once the data had been gathered, Dr. Engel compared the average total phosphorus
concentrations and total poultry house density (plus poultry houses within a two-mile buffer) in
each sub-watershed to determine whether there was a linear relationship between the data. [TR at
5767:8-5768:13 (Engel); OK Ex. 1165]. He used an equation to explain the linear relationship and

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any variability in the observed relationship between poultry house density and increased
phosphorus concentrations. [TR at 5772:17-5773:12 (Engel); OK Ex. 1165)]. The equation he
used was: y=0.0184x + 0.0171, with “y” representing total phosphorus runoff, and “x”
representing the number of poultry houses per square mile. [TR at 5772:17-5773:1; 5773:235774:2; (Engel); OK Ex. 1165]. The “0.0184” value is the increase in phosphorus concentrations
expected per the addition of each poultry house per square mile and the “0.0171” value represents
the expected phosphorus concentrations in small sub-watershed streams with no poultry houses.
[TR at 5774:9-17 (Engel); OK Ex. 1165]. The calculations Dr. Engle used are a “standard
approach” for examining relationships between environmental data. [TR at 5773:7-12 (Engel)].
After running his calculations, Dr. Engel arrived at an R² value to describe the “goodness of fit”—
that is, how much the observed variability in the data is explained by the equation. [TR at 5775:812 (Engel); OK Ex. 1165]. The R² value for his poultry house density analysis is 0.74, which he
testified is “an excellent relationship.” [TR at 5775:13-19 (Engel); OK Ex. 1165]. Dr. Engel also
found a “p value” of 0.0007, which he testified shows the equation describes a statistically
significant relationship. [TR at 5775:20-7776:6 (Engel)].
466. Overall, with respect to his poultry house density analysis, Dr. Engel concluded “there is
a statistically significant relationship between poultry house density and phosphorus in both
surface runoff and in base flow,” and because he had excluded other sources, “this relationship
demonstrates a cause-and-effect relationship.” [TR at 5786:1-11 (Engel)]. He testified that “the
presence of the poultry house operations and the activities that go with those is responsible for the
increased phosphorus that one observes in these small watersheds within the Illinois River
Watershed,” and “[a]s we increase poultry house density, we see corresponding increases in
phosphorus from those watersheds.” [TR at 5786:12-19 (Engel)]. The relationship exists. He

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contends not only with respect to edge-of-field phosphorus but also in-stream phosphorus. [TR at
5786:20-23 (Engel)].
b. Dr. Stevenson’s Analysis
467. Dr. Robert Jan Stevenson also performed a poultry house density analysis based on a
“conceptual model” that human activities, including poultry house operations, affect nutrient
concentrations in the water; that nutrient concentrations affect algal biomass; that algal biomass
affects dissolved oxygen and pH; and that changes in dissolved oxygen and pH can affect
biodiversity by altering physical habitat. [TR at 7110:18-7111:8 (Stevenson)]. Dr. Stevenson
hypothesized that there would be a direct relationship between poultry house density in the IRW
and phosphorus concentrations in streams. [TR at 7111:9-19 (Stevenson)]. In addition to
sampling data, Dr. Stevenson used data he received from Robert Van Waasbergen on poultry
house density in each one of the sub-watersheds delineated for sampling. [TR at 7111:21-7112:2
(Stevenson)]. Van Waasbergen’s data, in turn, was based on aerial photographs of locations with
poultry houses. [TR at 7112:3-22 (Stevenson)]. Dr. Stevenson used topographic maps and a land
cover land use database available through government agencies to delineate the sub-watersheds.
[TR at 7112:23-7113:17 (Stevenson)]. As with Dr. Engel’s study, poultry house densities for the
sub-watersheds were calculated by looking at the number of poultry houses within the subwatershed and within a two-mile buffer around the edges of the watershed, divided by the number
of square miles of the watershed. [TR at 7113:18-7114:2 (Stevenson)].
468. During the summer of 2006 and the spring of 2007, nutrient and algal biomass data were
collected from 70 stream sampling sites. [OK Ex. 4468; OK Ex. 4508; TR at 6988:13-14;
6988:21-6989:3; 6991:18-19; 6993:8-15; 6993:22-6994:1; 6995:10-12 (Stevenson)]. Sampling
sites were selected based on a random stratified sampling design. [TR at 6991:3-6 (Stevenson)].

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Dr. Stevenson testified that a random stratified sampling design is necessary for a regression
approach, which requires even numbers of observation sites with low levels of phosphorus and of
poultry house density, intermediate levels of phosphorus and poultry house density, and high
levels of phosphorus and poultry house density. [TR at 6991:6-11 (Stevenson)]. After stratifying
the 70 sampling sites into five groups based on poultry house density, Dr. Stevenson then
randomly selected 12 to 15 sites from each stratum for purposes of his analysis. [TR at 6991:1217 (Stevenson)].
469. Because nutrient concentrations and algal biomass vary a great deal in streams as a result
of weather-related events, samples were taken over a two-month period. [TR at 6995:166996:11]. For many of the parameters—including nutrients and filamentous green algal cover—
each of the sites was sampled eight times. [TR at 6996:12-16 (Stevenson)]. Other parameters
such as diatom biodiversity and macrobenthic invertebrate diversity were sampled once, at the end
of the sampling period. [TR at 6996:17-19 (Stevenson)].
470. Dr. Stevenson conducted a third sampling campaign in the summer of 2007. [OK Ex.
4477; TR at 6996:20-6997:10 (Stevenson)]. In this campaign, nutrient concentrations and fish
assemblages were sampled at 37 locations. [TR at 6997:11-20 (Stevenson)]. Dr. Stevenson
explained that fewer locations were sampled in the summer 2007 sampling campaign than the
previous two campaigns because it takes longer to sample fish, and because of costs associated
with getting additional samples. [TR at 6997:21-6998:3 (Stevenson)]. He testified he considered
this number of sites sufficient. [TR at 6998:4-10 (Stevenson)].
471. Once the data had been gathered and stratified, Dr. Stevenson conducted a regression
analysis to determine whether a relationship exists between poultry density, phosphorus
concentrations, and algal biomass in the streams of the IRW. [TR at 7140:8-12 (Stevenson)]. Dr.

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Stevenson’s regression analysis showed that phosphorus concentrations increased with the density
of poultry houses. [TR at 7146:21-7147:4 (Stevenson)]. In addition, during the spring 2007
sampling campaign, he found a correlation between poultry house density and algal biomass. [TR
at 7147:11-16 (Stevenson)]. Overall, Dr. Stevenson concluded:
[L]ooking at the relationships between poultry house density, . . . there [is] a
correlation between poultry houses and phosphorus and poultry houses and algal
biomass. There’s a relationship between nutrient concentrations, phosphorus and
algal biomass, that affect DO and pH, . . . [which in turn have] an effect on fish
biodiversity that [is] related to indications of nutrient availability and of poultry
house density.
[TR at 7147:22-7148:9 (Stevenson)]. Dr. Stevenson also found a correlation between increased
phosphorus concentrations and urban activities. [TR at 7148:10-19 (Stevenson)]. He testified,
however, that by using his regression analysis, he was able to isolate poultry house density
impacts by looking only at the data that can be assigned to poultry house density versus urban land
use. [TR at 7151:18-25 (Stevenson)]. Based on this data and without taking into account other
causes such as wastewater treatment plant discharges, Dr. Stevenson concluded that high poultry
house density causes injury to IRW streams. [TR at 7151:14-25 (Stevenson)].
472. Dr. Stevenson also performed a multiple regression analysis to differentiate between
general agricultural use impacts and poultry house density impacts. [TR at 7153:17-7154:13
(Stevenson)]. He concluded that “something associated with the density of poultry houses in the
watershed must be causing the increases in phosphorus concentration and the increases [in] algal
biomass and the reductions in fish biodiversity associated with—in the streams of the Illinois
River Watershed.” [TR at 7154:14-7155:1 (Stevenson)].
c. Defendants’ Critique of Poultry House Density Studies
473. Defendants’ expert, Dr. Timothy Sullivan, contends Dr. Engel’s study shows a
statistically significant correlation between septic system density and phosphorus concentration in

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streams. [TR at 10713:12-16 (Sullivan)]. He is critical of Dr. Engel for dismissing the correlation
as an artifact of another correlation he found with poultry house density. [TR at 10713:17-20
(Sullivan)]. Engel acknowledged “strong cross-correlations” between septic tanks and total
poultry house density; “in other words, in areas with high poultry house development, human
dwellings are also relatively high.” [TR at 6378:17-6379:5 (Engel)]. He concluded, however, that
septic tanks are not a significant contributor of phosphorus to surface-based, nonpoint-source
pollution for two reasons. First, his analysis, which examined potential impacts of septic tanks in
the high-flow sub-watersheds, indicated there was far more phosphorus being exported from those
watersheds in a fewer number of events than can be explained by septic tanks. [TR at 6663:226664:4 (Engel)]. Second, septic waste is applied underground, so it provides opportunities for
absorption of the phosphorus into soil; meaning it would not run off the surface.31 [TR at 6664:515 (Engel)]. Defendants’ expert, Dr. Sullivan, conceded that even assuming all phosphorus from
septic systems in the IRW were to discharge directly into streams of the IRW, the total phosphorus
contributed by septic systems would approximate the phosphorus produced by only 16 of the
approximately 1,800 active poultry houses in the IRW. [TR at 10906:12-10907:8 (Sullivan)].
474. Defendants also criticized Dr. Engel and Dr. Stevenson for not including cattle in their
studies. [TR at 10729:2-10 (Sullivan)]. Dr. Engel explained the reason for the omission is that
beef cattle—which consume grass and hay from fields where poultry waste is land applied—are
recycling phosphorus that already exists within the watershed. [TR at 5836:23-5837:20 (Engel)].
Additionally, as previously noted, Dr. Stevenson found a correlation between poultry house
density and phosphorus concentrations independent of agricultural influences as a whole. [TR at
7153:17-7155:1 (Stevenson)]. Defendants’ expert, Dr. Sullivan, conducted a study of the
31

This defense ignores the fact that septic systems buried in karst condition are less than ideal for
absorption of the septic waste into soil.

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correlation between cattle and poultry house density; however, his cattle population data was
aggregated by zip code rather than by sub-watersheds. [TR at 10913:20-10914:10 (Sullivan)]. He
acknowledged that his study covers a larger land area than simply the sub-watersheds. [TR at
10914:11-19 (Sullivan)].
475. Dr. Sullivan also criticized the State’s experts for not considering dirt roads as a source
of phosphorus as part of the investigation. [TR at 10708:17-25 (Sullivan)]. Based on his own
analysis, he found a correlation between poultry house density and dirt roads within the subwatersheds studied by Dr. Engel. [TR at 10760:11-22; DJX2258]. He opines that the presence of
roads constitutes a “confounder” in the plaintiffs’ experts’ analysis. [TR at 10760:23-10761:2].
Dr. Engel testified, however, that dirt roads were not considered in his analysis because dirt roads
are not an independent source of phosphorus beyond background; the amount of phosphorus lost
from dirt roads would be small; and if there is any phosphorus beyond natural background in the
dirt roads, one of its sources would be poultry waste. [TR at 6628:22-6629:19 (Engel)].
476. Finally, Dr. Sullivan contends the State’s experts’ inclusion of a two-mile buffer in their
calculation of poultry house density resulted in “double and triple” counting poultry houses within
the sub-watersheds. [TR at 10765:14-10767:5 (Sullivan)]. Dr. Engel explained the two-mile
buffer was based on IRW-specific scientific reports and materials (as well as his own analysis and
that of Dr. Fisher) finding that a majority of poultry waste is land-applied within about two miles
of poultry houses. [TR at 6630:1-12 (Engel)]. Based on this analysis, he determined it was
logical to consider poultry houses within two miles of watersheds as having the potential to
contribute some phosphorus to the waters being sampled. [TR at 6630:13-17 (Engel)]. However,
he also performed the analysis without the two-mile buffers and found that the results did not
significantly change. [TR at 6630:18-6631:18 (Engel)].

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477. The court accords the poultry house density studies by Dr. Engel and Dr. Stevenson
substantial weight.
10. Modeling Analysis
478. Dr. Chaubey testified that another way to determine the fate and transport of a pollutant
is to do “mathematical modeling to look at elective contribution of different areas in terms of
nutrients and how those nutrients then move through the stream system.” [TR at 5994:11-21
(Chaubey)]. In this case Dr. Engel employed a computerized watershed model to evaluate
phosphorus contamination in the IRW. [TR at 6216:2-4 (Engel)].
479. Dr. Engel conducted his modeling analysis in order to understand the fate and transport
of phosphorus within the IRW; to analyze current conditions within the IRW and conditions under
certain hypothetical scenarios such as cessation of poultry waste application; and to allocate
phosphorus contributions among different sources. [TR at 6216:5-19 (Engel)].
480. In this case, Dr. Engel used a nonpoint source field model known as GLEAMS model to
identify runoff and movement of phosphorus within a field to the edge of the field and to route and
move the phosphorus from the edge of field to one of three gauging stations within the IRW. [TR
at 6219:14-6220:3 (Engel)]. He also used the model to route point source phosphorus from
wastewater treatment plan discharges (the quantities of which were already known) to the same
gauging stations. [TR at 6219:14-6220:3, 6231:22-6232:6 (Engel)].
481. Dr. Engel testified that a modeler can be confident of the reliability of combining a
nonpoint source field model with a routing model because in a region like the IRW, once
phosphorus begins moving out of the fields, “it’s going to continue to move downhill,
downstream.” [TR at 6220:4-20].

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482. Dr. Engel selected the GLEAMS model because of his experience with it; it represents
nonpoint source pollution process and runoff from areas like the IRW; it allows one to readily
describe the management systems being used; and because of other modeling work performed in
the IRW and the experiences others had with other models. [TR at 6230:4-13 (Engel)]. He
testified that GLEAMs is a reliable, established, and well-accepted model and has been featured in
many peer-reviewed publications. [TR at 6230:17-23 (Engel)]. Dr. Engel and other modelers
have applied GLEAMS on a watershed-wide basis in the past, and Dr. Engel has published papers
in peer-reviewed journals regarding studies using GLEAMS on a watershed-wide basis. [TR at
6231:3-14 (Engel)].
483. The GLEAMS model used the “curve number” method of the National Resources
Conservation Service (“NRCS”) to compute runoff. [TR at 6216:20-6217:7 (Engel)]. The curve
number method uses data that describe land use, soil characteristics, and rainfall to calculate the
amount of runoff and model the movement of constituents such as phosphorus. [TR at 6217:8-19
(Engel)].
484. With respect to calculation of runoff, the curve model uses data describing the land use,
soil characteristics, water movement characteristics, and management conditions. [TR at 6218:146219:1 (Engel)]. The data is then used to arrive at a curve number value taken from a wellestablished set of publications. [TR at 6219:2-3 (Engel)]. That curve number value, along with
daily rainfall data, is then used to calculate runoff. [TR at 6219:3-5 (Engel)].
485. The land use data for the GLEAMS model came from the National Land Cover Database
(“NLCD”). [TR at 6242:15-19 (Engel)]. The soil data for the GLEAMS model were obtained
from the STATSGO soils database. [TR at 6242:20-25 (Engel)]. Rainfall and temperature data
came from the National Climate Data Center. [TR a 6243:6-13 (Engel)]. The model used this

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data to describe the amount of runoff expected and the movement of constituents in the runoff.
[TR at 6243:6-13 (Engel)]. USGS digital elevation model data for the IRW and some area beyond
were used to identify sub-watershed boundaries. [TR at 6243:14-19 (Engel)]. USGS flow data
was used to determine the amount of flow within the rivers at Barren Fork, Tahlequah and Caney
Creek. [6243:20-23 (Engel)]. USGS and Oklahoma Water Resources Board phosphorus
concentration data were obtained for those locations as well. [TR at 6243:24-6244:6 (Engel)].
The current poultry waste amount of 354,000 calculated by Drs. Engel and Fisher was used. [TR
at 6244:7-13 (Engel)]. Dr. Engel’s mass balance analysis was used to supply historical poultry
waste figures, as well as nutrient applications from other sources such as fertilizers and other
livestock sources. [TR at 6244:15-18; 6244:24-6245:2 (Engel)]. Poultry house locations and
poultry waste application locations were determined based on aerial photography. [TR at
6244:19-22 (Engel)]. Soil test phosphorus data came from the Arkansas and Oklahoma State
University labs through Dr. Johnson. [TR at 6245:3-8 (Engel)]. Soil test phosphorus background
levels were obtained from samples taken by CDM for the state within the Nickel Preserve area.
[TR at 6245:9-14 (Engel)]. Wastewater treatment plant phosphorus discharges were derived from
NPDES permit compliance system data sets. [TR at 6245:15-19 (Engel)].
486. Dr. Engel used an “empirical” routing model, that is, one based on actual observed data
in the IRW. [TR at 6233:12-22]. Other modelers have used empirical routing models in
watershed studies, and the form of the routing equation used is utilized by USGS as part of its
“LOADEST” software. [TR at 6235:4-14 (Engel)]. The routing model was used to route the
GLEAMS runoff output and wastewater treatment plant discharges to the three gauging stations
(Baron Fork, Caney Creek and Tahlequah). [TR at 6232:7-13 (Engel)].

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487. Dr. Engel used USGS flow data to describe the amount of flow to the three gauging
stations; USGS and OWRB phosphorus concentration data for each of the three gauging stations;
and wastewater treatment plant phosphorus discharge data from the NPDES permit complaint
system. [TR at 6233:23-25; 6243:20-23; 6243:24-6244:6; 6245:15-19 (Engel)]. The data sources
used for both the GLEAMS model and the routing model are types typically used by scientists to
conduct watershed modeling. [TR at 6245:20-6246:1 (Engel)].
488. The routing model equation used three coefficients (a, b and c) obtained by identifying a
relationship between the routing equation and the observed phosphorus load data. [TR at 6239:816 (Engel)]. Dr. Engel’s routing equation provides that the phosphorus load equals coefficient
“a,” which describes the amount of phosphorus expected to reach a gauge when there is no flow,
plus coefficient “b,” times actual flow (represented by Q), times phosphorus accumulation in the
stream network, or P Load = a + b(Q)(P) + c(Q²)(P). [TR at 11311:17-24 (Engel)]. The last term
in the equation is coefficient “c” multiplied by flow squared—the concept being that on days in
which there are very high flows substantially more phosphorus is being transported—times
phosphorus accumulation in the stream network. [TR at 11312:4-9 (Engel)]. Dr. Engel used this
routing equation for all of his modeling processes. [TR at 11312:10-12 (Engel)].
489. After inputting data and running the model, Dr. Engel undertook a calibration and
validation process. [TR at 6246:2-8 (Engel)]. This process allows the model to identify and test
how well the model is performing for the particular location to which it is being applied. [TR at
6246:9-15 (Engel)]. It also allowed Dr. Engel to determine whether the model’s predictions
matched the observed data and adjust the model coefficients to better match model prediction and
observed phosphorus loads. [TR at 6246:22-6247:13 (Engel)]. Through the validation process, a
portion of the observed flow and phosphorus load data was reserved (independent of the data used

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for calibration) without making any coefficient adjustments. [TR at 6248:2-8 (Engel)]. Then,
predictions were made for the conditions represented by the independent observed data and
compared with the observed data to determine how well the predicted values and data matched.
[TR at 6248:9-14 (Engel)]. According to Dr. Engel, the validation approach he used has been
described “hundreds of times in the . . . peer-reviewed journals [regarding] watershed models.”
[TR at 6247:24-6248:2 (Engel)].
490. As a result of the calibration/validation process, Dr. Engel concluded that the nonpoint
source runoff and phosphorus loading portions of the model performed “above levels that would
be deemed acceptable by the watershed modeling scientific literature.” [TR at 6248:23-6249:12
(Engel)].32 Further, the process led Dr. Engel to conclude that the model would “certainly . . .
provide reliable estimates” of phosphorus loading to Lake Tenkiller.” [TR at 6251:9-16 (Engel)].
491. Dr. Engel testified that historically, wastewater treatment plant phosphorus discharge in
the IRW peaked at about 200,000 pounds during the late 1990s and early 2000s. From 2003
forward, due to improvements in technology at several of the wastewater treatment facilities,
phosphorus discharge declined to about 90,000 pounds per year. [TR at 6224:8-23 (Engel)].
492. Dr. Engel testified that total phosphorus loading in Lake Tenkiller is approximately
500,000 to 505,000 pounds per year. [TR at 6224:24-6225:7; 6225:12-17 (Engel)]. Before 2003,
approximately 300,000 pounds per year were attributable to nonpoint sources and 200,000 pounds
to wastewater treatment discharge. [TR at 6225:12-14 (Engel)]. From 2003 forward, 410,000
32

After the initial calibration of the GLEAMS Model, Dr. Engel discovered that a number of hydrologic
response units (“HRUs”) had been inadvertently omitted. [TR at 6292:8-6293:25 (Engel)]. Dr. Engel
corrected the HRU error and recalibrated and reran the model, which produced new results. [TR at
6294:21; 11287:14-25 (Engel)]. He subsequently corrected his expert report by way of an “errata” to
reflect the HRU-related changes. [TR at 6294:21-6295:10; 6295:22-6296:17 (Engel)]. He made additional
corrections to his report and submitted a second errata after discovering that some observed phosphorus
load data in his expert report was erroneous. [TR at 6294:5-13; 6295:5-10 (Engel)]. He testified that his
expert opinions at trial were based on the corrected report. [TR at 6296:13-17 (Engel)].

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pounds per year of the phosphorus load came from nonpoint sources and 90,000 pounds came
from wastewater discharge. [TR at 6225:16-17 (Engel)].
493. Dr. Engel testified that his calculations are comparable to USGS reports concluding that
80 percent of the phosphorus load in the IRW is from nonpoint sources. [TR at 6225:18-4
(Engel)]. Defendants’ expert, Dr. Connolly, similarly testified that 82 percent of the phosphorus
reaching Lake Tenkiller is from nonpoint sources. [TR at 9142:5-8 (Connolly)].
494. Dr. Engel also used his model to evaluate hypothetical land use scenarios. [TR at
6253:24-6254:4 (Engel)]. First, he used the model to characterize and evaluate a “status quo”
scenario in which defendants would continue to generate the same amount of poultry waste, other
phosphorus input sources remained the same and weather data from 1997 through 2006 was used
and repeated in 10-year increments for 100 years. [TR at 6254:7-6255:2 (Engel)]. In the status
quo scenario, phosphorus loads would be roughly 500,000 pounds per year for the first 10 years,
increasing to about 600,000 pounds per year for the next 20 years and then oscillating at a little
less than 600,000 pounds. [TR at 6260:1-18 (Engel); OK Ex. 1100].
495. Next, Dr. Engel used the model to predict phosphorus loads if all land application of
poultry waste ceased. [TR at 6255:3-5 (Engel)]. In this scenario, all other conditions remained the
same. [TR at 6255:6-11 (Engel)]. In the “cessation” scenario, phosphorus loads would decrease
by about 18 percent in the first 10 years, and would continue to decline over time until becoming
somewhat stable in years 71 through 100. [TR at 6260:19-6261:5 (Engel); OK Ex. 1100]. Dr.
Engel testified that in this scenario, soil test phosphorus levels from historic land application of
poultry waste would continue to contribute phosphorus runoff for about 70 years after cessation.
[TR at 6261:10-25 (Engel)].

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496. For his third scenario, Dr. Engel assumed cessation of land application of poultry waste
and the addition of vegetative buffer strips along (a) all third-order and larger streams; and
alternatively (b) all streams of the IRW. [TR at 6266:8-16, 6268:17-23 (Engel)]. To calculate the
impact of vegetative buffer strips, Dr. Engel used a buffer strip reduction coefficient (0.5) from
published literature and applied it to the GLEAMS model. [TR at 6267:7-22; 6268:3-6; 6270:1415 (Engel)]. The model results for the vegetative buffer strip scenario show that phosphorus loads
would decrease by an additional 10 to 13 percent above the cessation alone scenario if vegetative
buffer strips were installed along all IRW streams. If vegetative buffer strips were installed only
along third order and larger streams in the IRW, the reduction in phosphorus loads would only be
5 to 8 percent above the cessation alone scenario. [TR at 6273:5-6274:4 (Engel); OK Ex. 1105;
OK Ex. 1106].
497. For his fourth scenario, Dr. Engel assumed phosphorus inputs from land applied poultry
waste were increased due to continued growth of the poultry industry in the IRW. [TR at
6262:1-8 (Engel)]. This scenario uses IRW poultry industry growth data from 1982 through 2002
and projects phosphorus growth at the same rate in the future. [TR at 6262:9-23 (Engel)]. The
historical data showed a growth in phosphorus from poultry, from 3,800 tons to 4,600 tons. [TR at
6263:8-14 (Engel)]. The model projected that growth rate for 50 years into the future. [Id.] All
other conditions remained the same as the first scenario. [TR at 6262:19-20 (Engel)]. The model
results for the growth scenario project an increase of approximately 70 percent in phosphorus
loading to Lake Tenkiller due to poultry waste application in the IRW over a 40 to 50 year period.
[TR at 6265:18-6266:7 (Engel); OK Ex. 1100].
498. For his last scenario, Dr. Engel assumed no poultry waste had ever been land applied
within the IRW. [TR at 6274:5-8 (Engel)]. Under this scenario, soil test phosphorus levels in the

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IRW pastures were set at background levels and the model was run for 100 years with the
assumption of no poultry waste application. [TR at 6274:9-14]. Under this scenario, the
phosphorus load to the Tahlequah gauging station would be 275,000 pounds less per year than the
current phosphorus load. [TR at 6277:14-20; OK Ex. 1108].
499. Dr. Engel also used the model to evaluate historical phosphorus loads to Lake Tenkiller.
[TR at 6279:18-23]. Rainfall data and phosphorus input data for 1950 through 1999 were used, as
well as historical wastewater treatment plant data. [TR at 6279:24-6280:13 (Engel)]. Based on
the historical scenario, the model results show that since 1954, phosphorus loads to Lake Tenkiller
from nonpoint sources have increased at a rate of about 8,000 pounds per year. [TR at 6283:76284:8 (Engel); OK Ex. 1114].
Defendants’ Critique
500. Defendants criticize Dr. Engel’s modeling analysis in several respects. First, as Dr.
Engel admitted, the GLEAMS model was developed for modeling at the field scale, not the
watershed scale. [TR at 6437:17-6443:22; 6454:16-20 (Engel)]. While more robust watershed
models were available, Dr. Engle elected not to use them. [TR at 6409:22-6410:10 (Engel)].
Also, GLEAMS was not designed for modeling urban areas. [TR at 6453:25-6454:15 (Engel)].
Although Dr. Engle testified that GLEAMS can be modified to overcome these design limitations,
there are a number of reasons to doubt whether, in this case, those modifications were successful.
501. Dr. Engel’s model misclassified a number of land uses, treating forests and highways as
pastureland. [TR at 6492:25-6496:10 (Engel); 10287:2-10293:1 (Bierman)]. Dr. Engel’s model
also represented urban areas as alfalfa hay fields, and with hydrological code inappropriate for
urban areas. [TR at 6505:21-6507:16; 11359:12-11360:1 (Engel); 10293:11-10295:23 (Bierman);
DJX2398; DJX2399; DJX2400].

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502. Dr. Engel agreed with the importance of modelers making realistic assumptions. [TR at
6411:20-23; 6486:7-14 (Engel)]. Yet, his model incorporated a number of assumptions that do not
represent real-world processes. For example, GLEAMS assumes that all phosphorus on a field
has an equal opportunity to run off regardless of its location or any site-specific considerations—
an assumption that is inconsistent with fate and transport principles. [TR at 6442:9-6443:17;
6461:23-6463:12 (Engel)]. It assumed, unrealistically, that all litter is applied in the IRW on a
single day each year. [TR at 6486:22-6487:11 (Engel)]. It assumed, incorrectly, that litter is
applied to every part of every pasture in the IRW. [TR at 6488:19-6490:7 (Engel)]. The model
did not consider the statutory and regulatory restrictions on litter application set forth in sitespecific nutrient management plans, and in fact assumes conduct in violation of those plans. [TR
at 6496:11-6503:12 (Engel)]. Finally, Dr. Engel calibrated his model by comparing his predicted
runoff values, which represent runoff all across a million acre watershed, against observed flows
into Lake Tenkiller—data sets that bear no relation to one another. [TR at 10269:25-10271:20
(Bierman)].
503. The programming error made by Dr. Engel’s post-doctoral assistant and corrected by Dr.
Engel most clearly demonstrates the unreliability of the GLEAMS model. The GLEAMS model
divides the IRW into three major sub-watersheds (the Illinois River, Baron Fork and Caney
Creek), which are in turn divided into 21, 20 and 9 HRUs. [TR at 6398:16-6399:6 (Engel)].
HRUs are not necessarily contiguous land areas, but rather represent portions of each subwatershed having similar land use, land cover and soil types, among other factors. [TR at 6292:813 (Engel)]. The GLEAMS model runs in series to calculate a runoff value for each HRU, and the
runoff values are then totaled within each sub-watershed. [TR at 6291:17-6292:13 (Engel)]. Dr.
Engel’s assistant first developed the code to execute this run for Caney Creek, which has only nine

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HRUs. When he copied the code to the other sub-watersheds, he failed to alter it to reflect the
larger numbers of HRUs. [TR at 6292:14-6293:25 (Engel)]. Therefore, when the model was
calibrated for Dr. Engel’s original report, it captured only the first 9 of the 21 HRUs in the Illinois
River and the first 9 of the 20 HRUs in the Baron Fork. [TR at 6292:8-6294:4; 6413:25-6420:23
(Engel); 10265:10-13 (Bierman)].
504. Despite omitting half the watershed, Dr. Engel’s model nevertheless generated results
comparable to a full run which correlated well to the “observed loads” measured by the USGS that
Dr. Engel used to calibrate his model. [TR at 6421:18-24; 6477:23-6479:20 (Engel)]. This was
possible, Dr. Engel explained, because:
[T]he model was calibrated, and during that calibration period, some of the
parameters available to be modified to adjust the model were changed. In fact, the
amount of phosphorus that was applied to these HRUs was the amount of
phosphorus applied to the entire watershed.
And based on my knowledge of the model, experience with the model, and similar
models, within the working ranges of nutrient applications onto the landscape that
we’re working within here, that essentially doubling or greatly increasing the
application rate provides results that are very similar to more area with the same
application, but therefore, at a lower rate-per-unit area.
[TR at 6635:2-24 (Engel)]. Dr. Engel’s model made up for the missing land area by randomly
adjusting input parameters, including the amount of manure applied and phosphorus present in the
soil, and doubling the amount of manure applied to the remaining half. [TR at 6428:24-6433:20
(Engel); 10265:14-10267:9 (Bierman)]. Dr. Engel admitted that in the real world, if the nonpoint
source contribution from half the IRW were taken out of the equation, there would be a
substantially different phosphorus concentration in Lake Tenkiller. [TR at 6422:2-15 (Engel)].
This admission leads the court to find that Dr. Engel’s application of the GLEAMS model does
not reliably represent real-world fate and transport processes in the IRW.

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505. Defendants also criticized Dr. Engel’s “routing model.” As previously noted, the
routing model embeds on an Excel spreadsheet the equation “P Load = a + b(Q)(P) + c(Q²)(P),”
where a, b and c are coefficients, Q represents USGS-observed flows, and P represents phosphorus
accumulated in the river. [See FF #488]. To apply his equation, Dr. Engel first “calibrated” it to
the IRW by calculating the values for a, b and c that allowed the equation to calculate predicted
phosphorus loads to Lake Tenkiller that best matched USGS observed loads. [See FF ##489-490].
Dr. Engel testified that once calibrated, the resulting equation represents phosphorus transport
from edges of fields throughout the IRW to the gauging stations above Lake Tenkiller at the
outlets of each of the Illinois River, Baron Fork, and Caney Creek and accurately relates
GLEAMS’ prediction of runoff loads to Lake Tenkiller. [TR at 6249:25-6251:16 (Engel)]. As
support for the accuracy and reliability of his model, Dr. Engel pointed to the statistical tests he
performed, comparing his predicted loads to his observed loads from the routing model. [TR at
6248:15-6249:5 (Engel) (“So R²s and Nash-Sutcliffe coefficients were both above the range of
values that one would hope for calibration, and that was also true for the validation data sets.”);33
11416:25-11417:22 (Engel)]. Dr. Engel testified the fact that the model could be calibrated and
validated demonstrates the validity of his GLEAMS runoff calculations, which are used as inputs
into the routing model. [TR at 6466:22-6467:7 (Engel)].
506. The court concludes, however, that Dr. Engel’s routing mode is flawed and unreliable for
several reasons. Defendants’ modeling expert, Dr. Victor Bierman, demonstrated that the model
can be calibrated to produce the observed data despite putting in made-up numbers that had
nothing to do with phosphorus loads, [TR at 10250:18-10262:2; 10267:10-10269:16 (Bierman);
33

R-squared values and Nash-Sutcliffe coefficients are statistical measures of correlation. In both cases,
the higher the R-squared value or Nash-Sutcliffe coefficient, the greater the statistical correlation between
two sets of data, i.e., the modeled outcomes and observed outcomes. [TR at 6249:25-6251:1; 6476:20-24
(Engel)].

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DJX2414; DJX2416]. Notably, when Dr. Bierman replaced Dr. Engel’s modeled phosphorus
runoff numbers with S&P 500 data for the relevant time period, the S&P data correlated to the
observed phosphorus loads with an equally high R-squared value. [Id.]34 In rebuttal, Dr. Engel
asserted that Dr. Bierman’s tests had altered Dr. Engel’s coefficients a, b and c, and therefore
improperly changed the model, rendering his tests invalid. [TR at 11313:15-11314:19 (Engel)].
Dr. Bierman admitted as much, but explained that he was simply following Dr. Engel’s own
calibration process, during which the coefficients were not constrained to particular numerical
values. [TR at 10375:7-10376:10; 10377:18-10379:19 (Bierman)]; DJX2414; DJX2416; TR at
11428:20-11429:5; 11436:1-11440:23 (Engel)]. The court finds Dr. Bierman’s analysis casts
substantial doubt on the ability of Dr. Engel’s routing model to accurately determine nonpoint
source runoff in the IRW.
507. Dr. Engel’s routing model achieves a high degree of correlation between predicted and
observed loads because both data sets incorporate USGS flow data. Both the predicted and
“observed” loads are calculated by multiplying the coefficients and other variables by flow and
then again by flow squared. As a matter of simple mathematics, the formula effectively regresses
flow data upon itself, essentially ensuring a strong correlation. [TR at 10262:16-10264:2
(Bierman); 11458:8-20; 11461:24-11464:8 (Engel)].
508. Because flow dominates both equations, the routing equation is indifferent to wide
variations in phosphorus inputs or coefficient values. Dr. Engel proved this himself by running
Dr. Bierman’s made-up phosphorus loads through his own routing equation using his own
coefficients, and nevertheless generating high R-squared values. [TR at 11448:8-11454:9
34

Dr. Engel testified during rebuttal that while the S&P numbers correlated well with his GLEAMS
numbers on an annual basis, there was substantial variation in the numbers when viewed on a daily basis.
[TR at 11507:17-11508:9; 11509:12-11510:14 (Engel)].

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(Engel)]. This was further demonstrated during the cross examination of Dr. Engel when
significant changes were made to the coefficients in the routing model, which was integrated into
an Excel spreadsheet, yet the model produced little or no meaningful change in R-squared or
Nash-Sutcliffe values. [TR at 11458:25-11461:23; 11465:17-11467:13 (Engel)].
509. The routing model’s inability to accurately represent real world processes was
underscored by defendants’ demonstration that the routing model will calculate negative
phosphorus balances in the rivers and negative phosphorus flows to the lake. [TR at 11471:2211481:3 (Engel)]. As Dr. Engel admits, such results are clearly impossible in the real world. [TR
at 11479:21-11480:4 (Engel)].
510. Because the routing model will in some instances calculate negative phosphorus balances
in the rivers and negative phosphorus flows to the lake, Dr. Engel had to modify the equation,
adding a constraint or “patch” to prevent phosphorus levels from “going negative.” [TR at
11480:5-11 (Engel)]. For two of his sub-watersheds, Dr. Engel did not use the equation disclosed
in his expert report and his direct testimony to the court. [TR at 6238:10-6239:12 (Engel)].
Instead, he used an altered version to instruct the model that in the event it calculated more
phosphorus loading to the lake than was accumulated in the river, it should reset the P-to-Lake
value to the available amount of phosphorus in the river. [TR at 11472:22-11477:4 (Engel)].
Thus, Dr. Engel instructed his model to delete phosphorus it otherwise had calculated for
distribution to Lake Tenkiller.
511. Dr. Engel asserted on rebuttal that his “patch” fixed his model. [TR at 11479:2111480:11 (Engel)]. However, the fact that the routing model will calculate “negative” phosphorus
loadings on certain days calls into question whether any of the loadings from this routing model
are realistic or representative of actual fate and transport mechanisms. And Dr. Engel’s failure to

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disclose this “patch” in his direct testimony reflects negatively upon his candor and credibility on
this issue.
512. On cross examination, Dr. Bierman agreed that conceptually, GLEAMS may be
modified to represent phosphorus transport from urban lands. [TR at 10352:13-17 (Bierman)].
However, this does not overcome the fact that by attempting to do so, Dr. Engel made assumptions
and modifications that are unsupportable, such as representing urban lands as alfalfa hay fields.
[TR at 10352:18-10354:10 (Bierman)]. The State also suggested Dr. Bierman’s critique of Dr.
Engel’s watershed modeling merited less weight because Dr. Bierman did not develop and run his
own watershed or in-stream model. [TR at 10358:2-12 (Bierman)]. Defendants, though, have no
obligation to present a competing watershed model; rather, the State bears the burden of
establishing its claims.
513. The court finds Dr. Bierman’s testimony to be credible and persuasive. It accords no
weight to Dr. Engel’s watershed modeling analysis.
11. Upstream – Downstream Sampling
514. In the course of its sampling program, the State’s experts established a high flow
automatic sampling station in an area with no poultry houses. [TR at 5599:2-5 (Olsen)].
However, after noticing high concentrations of phosphorus during high flow events, they
investigated and discovered a pasture with land-applied poultry waste just upgradient from the
station on the banks of the river. [TR at 5599:5-12 (Olsen)]. Subsequently, during two separate
storm events, they sampled the river upgradient of the field and compared them to samples
collected downgradient of the field by the automatic sampler. [TR at 5599:13-18 (Olsen)].
515. The upgradient samples were near background for phosphorus (approximately 0.02
mg/L). [TR at 5599:24-5600:3 (Olsen)]. In contrast, the results for the downgradient sampling

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were approximately 0.4 mg/L and .07 mg/L respectively. [TR at 5600:3-5 (Olsen)]. Defendants
did not challenge the conclusion by the State’s expert that the source of the increased phosphorus
in the downgradient samples was the pasture with land-applied poultry waste. [TR at 5600:6-10
(Olsen)].
516. While the court recognizes this testimony pertains to a discreet sampling location, the
evidence provides some direct proof that phosphorus from land applied litter is running off into
the waters of the IRW. Therefore, the court accords this evidence substantial weight.
12. Direct Observation
517. Dr. Caneday testified that in September 2007, while driving on the east side of Chewey
Bridge in the Oklahoma portion of the IRW during a rainfall, he observed poultry waste running
off a field and that “it looked like the field was actually moving across the road as litter was
washed off the field, across the road, down toward the river.” [TR at 4366:24-4367:4; 4369:254370:1 (Caneday)].
518. Dr. Caneday also testified he had seen poultry waste, straw and feathers, floating on the
surface of the Illinois River. [TR at 4365:25-4366:23; 4367:5-8; 4402:23-4405:13 (Caneday)].
519. The court accords Dr. Caneday’s testimony substantial weight.
13. Defendants’ Expert
520. Defendants’ own expert, Dr. Connolly, testified on cross examination:
Q. (Mr. Page): Okay. Now, doesn’t that amount of phosphorus that by definition—
that is, nonpoint-source phosphorus—by definition runs off the land indicate to
you, sir, that there is a transport pathway of phosphorus from the land to the rivers
and streams of the IRW?
A. (Dr. Connolly): Yes.
Q. So you’re not suggesting that phosphorus does not run off of fields and forests
and urban areas of the IRW and enter the streams of the IRW, are you, sir?

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A. I’d be pretty silly to do that.
[TR at 9142:9-20 (Connolly)].
521. Further, Dr. Connolly admitted that phosphorus from poultry waste runs off the land in
the IRW and gets in the waters of the State:
Q. (Mr. Page): Oh. So you believe there is evidence, then, of a pathway of manures
applied to fields within the IRW flowing—their constituents flowing into the
streams of the IRW?
A. (Dr. Connolly): If you’re asking me whether or not any of the phosphorus in
poultry litter applied to fields makes its way to the Illinois River or Lake Tenkiller,
the answer is obviously yes . . . .
[TR at 9183:19-22 (Connolly)].
522. The court accords substantial weight to Dr. Connolly’s admission that phosphorus from
poultry litter makes its way into the waters of the IRW.
14. Defendants’ Admissions
523. With the exception of Cal-Maine, defendants have run advertisements in Oklahoma
newspapers admitting that phosphorus from land-applied poultry waste is a contributing source to
phosphorus loading in the waters of the IRW. In a December 4, 2004, advertisement, the Tyson
Defendants, the Cargill Defendants, the George’s Defendants, defendant Simmons and defendant
Peterson stated:
Lately, a good deal of concern has been raised about the effect of excess nutrients
on the land and waters of Eastern Oklahoma. So where do these nutrients come
from? Nutrients can come from many sources, one of which is the use of poultry
litter as an organic fertilizer . . . .
[OK Ex. 336]. And in a September 1, 2004, advertisement, the same defendants stated:
[W]e have been working with the State of Oklahoma on a multi-million-dollar
voluntary proposal to improve the management of the poultry-related nutrients that
might find their way into Eastern Oklahoma’s Scenic River Watersheds. . . .

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. . . We are prepared to do our part to take care of the poultry portion of the nutrient
equation.
[OK Ex. 335].
524. George’s president Marty Henderson wrote in a company newsletter:
Litter management has become a major issue in the Poultry industry. There has
been a lot of scientific work done the past few years that shows high phosphorus
levels in rivers, streams and lakes causes an increase in algae growth which can
adversely affect water quality and recreational use. . . . The problem comes when
more litter is used than the crops need and phosphorus levels become too high in
the soil. During major rain events some of the phosphorus becomes soluble and
washes off into the streams and lakes.
[OK Ex. 3043]. In another newsletter, Mr. Henderson wrote:
Over the years however, studies indicate that continuous use on the same land can
increase the phosphorus levels in the soil to levels higher than annual crops can
utilize. These studies indicate that in certain watersheds the excess can dissolve into
run-off rainwater and get into the streams creating an imbalance in streams and
rivers.
[OK Ex. 3045].
525. The Cargill Defendants have admitted:
Poultry manure is also composed of relatively large amounts of phosphorus . . . .
Phosphorus laden soils can be eroded by rainfall and the particles can then be
transported into surface water sources. Excessive phosphorus in surface waters can
cause excessive plant and algae growth. Excessive algae growth can contribute to
fish kills by depleting the dissolved oxygen content of the water . . . Producers
should . . . implement an annual soil-sampling program for application fields to
determine nutrient concentration and to help calculate application rates. Further
applications should not be made to soils containing excessive phosphorus amounts.
[OK Ex. 6131-A at CARTP000010]. They have also stated in a letter to their contract growers
that “[p]hosphorus can contaminate water when there is run off after the litter is spread on fields.”
[OK Ex. 6218].
526. The Tyson Defendants, in a publication titled “Environmental Poultry Farm
Management,” have stated:

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Poultry production has become one of the major agricultural endeavors in the US.
Poultry producing areas are generally located in those parts of the country that are
not conducive to traditional row crop agriculture. Examples of these areas include
Northwest Arkansas . . . . The main use of poultry litter (poultry manure and
bedding material) nutrients has been as a fertilizer for application to field crops and
pasture grasses. . . .While the litter has a proven fertilizer value, like any fertilizer,
its use also presents the risk of over application.
Over the years, higher phosphorus levels have been noted in some application area
soils. Excess phosphorous can be eroded from the soil and washed into nearby
waterways. Higher concentrations of phosphorous in surface waters can result in
creation of algal blooms. Poultry producers must utilize proper litter nutrient
management practices to prevent nutrients from accumulating in soils. The two
major nutrients found in poultry litter, nitrogen and phosphorous[,] are essential
crop nutrients but can present a risk to the environment if not managed responsibly.
...
Poultry manure has a high concentration of phosphorous when compared to the
concentration of nitrogen. The phosphorous requirements of most plants are less
than the nitrogen requirements. If application rates are calculated to meet the
nitrogen nutrient requirements of most crops and pasture grasses, it is possible to
land apply more phosphorus than is needed. Excess soil phosphorous could then be
removed by runoff and transported to water sources . . . .
. . . Excess amounts of soluble phosphorous are also easily incorporated into
precipitation and could leave the litter application area.
[OK Ex. 1283, TSN0075CORP-TSN0076CORP]. In a presentation titled “Environmental Poultry
Farm Management Workshop,” Tyson stated that phosphorus is mobile; it “causes water quality
problems [and] accumulates in the soil.” [OK Ex. 3207 at TSN117466OK].
527. In a November 24, 1998 memorandum, Peterson’s Director of Personnel/Environmental
Affairs/Corp., in discussing potential new litter disposal technologies, wrote:
Time continues to pass with no new solutions of dealing with excess animal waste
and environmental problems it is creating. . . . I realize once again I’ve come with
no new solutions, but we continue to look at anything that may solve all or part of
our problem. The solution may be one or a combination of these technologies. Or
it may mean our industry must make some changes in the way we do business.
[OK Ex. 3034].
528. The court accords these admissions substantial weight in evaluating the State’s case.

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15. Phosphorus from Land-Applied Poultry Waste Ends Up in the Waters of the IRW
529. As previously stated, poultry waste generated by each defendants’ birds has been land
applied on fields in the IRW. [See FF #372].
530. Dr. Johnson opined that if there is any surface fertilizer or amendment and it rains hard
enough and long enough to create some runoff at the edge of the field, it is inevitable that some
evidence of it will be detected in the runoff. [TR at 5172:1-6 (Johnson)].
531. Phosphorus runoff calculations made in various coefficient-based studies of land applied
poultry waste in the IRW are consistent in finding that approximately five percent of the
phosphorus in land-applied litter in the IRW is expected to run off in a typical year. K. Willett, D.
Mitchell, H. Goodwin, B. Vieux, and J. Popp, “The opportunity cost of regulating phosphorus
from broiler production in the Illinois River Basin,” Journal of Environmental Planning and
Management 49(2):181-207 (2006); A.N. Sharpley, S. Herron, and T. Daniel., “Overcoming the
challenges of phosphorus based management in poultry farming,” Journal of Soil and Water
Conservation 62(6):375-389 (2007); and M.A. Nelson, K.L. White and T.S. Soerens, “Illinois
River Phosphorus Sampling Results and Mass Balance Computation,” Arkansas Water Resources
Center (2002). [OK Ex. 1025; OK Ex. 1003]. The Willett study concluded that 5.36 percent of
phosphorus applied through poultry litter applications in the IRW is lost in runoff each year. The
Sharpley study concluded the phosphorus loss from land applied poultry litter in the IRW is 5
percent. [OK Ex. 1025 at p. 378]. The Nelson study found that four to five percent of phosphorus
(including that in poultry waste) land applied in the IRW runs off. [OK Ex. 1003 at p. 17].
532. Similarly, Dr. Edwards testified that approximately five percent of the phosphorus in
any given land application can be expected to run off. [Ct.’s Ex. 11 (Edwards Dep.) at pp. 7,
23-24]. And the Clean Lakes Report, in discussing run-off coefficients, utilized a coefficient of

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0.2-0.65 kg/ha/yr for pasture in the IRW and assumed “that all wastes produced at these locations
are susceptible to transport due to rainfall events and erosion.” [OK Ex. 3285 at p. 45; p. 46,
Table XVII].
533. Defendant Cargill Turkey Products states in its Contract Grower Environmental Best
Management Practices Guide: “It should be recognized that some level of nutrient loss to surface
and groundwater will occur despite following the recommendations in this manual; however, these
losses should be lower than would occur without nutrient management.” [OK Ex. 6131-A at
CARTP000009].
534. The testimony of Shanon Phillips aptly describes the dynamics of field runoff on both a
micro and macro level. She stated that farm ponds act as catchment basements for nutrients in
runoff from individual farms, and likened Lake Tenkiller to a catchment basin for the entire IRW.
[TR at 1478:18-1479:8; 1511:7-17 (Phillips)].
535. In evaluating the State’s case, the court accords substantial weight to the evidence that
some fraction of phosphorus from land applied poultry waste runs off to the waters of the IRW.
16. Phosphorus Concentrations in Other Watersheds
536. Defendants introduced evidence of high phosphorus levels in a number of Oklahoma
lakes and rivers, as well as eutrophic and hypereutrophic lakes outside of the IRW. [TR at
9122:15-9123:10 (Connolly); TR at 10615:5-8 (Sullivan)].
537. However, as Dr. Sullivan testified, when evaluating the phosphorus in the IRW
compared to other watersheds, the best comparison is to look at watersheds that had similar
populations of cattle, people, and poultry and similar geology. [TR at 10623:12-23 (Sullivan)].
Defendants conducted no such comparison. Additionally, any comparison between watersheds
requires an analysis of background levels of phosphorus. [TR at 10624:16-21 (Sullivan)]. Dr.

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Sullivan acknowledged that natural background phosphorus concentrations in the waters of the
IRW are probably as low as 0.010 or 0.020 mg/L. [TR at 10624:21-10625:3 (Sullivan)].
538. The court, therefore, accords little weight to defendants’ evidence of high phosphorus
levels in other Oklahoma lakes and rivers, and to their evidence of eutrophic and hypereutrophic
lakes outside the IRW.
N. Phosphorus in Runoff from Land-Applied Poultry Waste is a Significant
Source of Phosphorus Causing Injury to IRW Waters
539. The evidence that phosphorus from land-applied poultry waste can and does run off into
the waters of the IRW is convincing. As set forth below, the evidence is convincing that poultry
waste is a significant source of the phosphorus causing injuries to the rivers and streams of the
IRW and to Lake Tenkiller.
540. According to the Tenkiller Clean Lakes study, nonpoint phosphorus loading is
responsible for 83.5 percent of the estimated average total phosphorus load to Lake Tenkiller,
while point source loading accounts for only 5.5 percent.35 [OK Ex. 3285, p. 55 (Table XXIV)].
In turn, 76.73% of the nonpoint phosphorus load reaching Lake Tenkiller is the result of manures
produced by animal operations in the basin. [OK Ex. 3285 at 46 (Table VII)].36 Thus, phosphorus
loading from animal litter and manures produced in the IRW comprises 63.69% (83% x 76.73%)
of the annual phosphorus load reaching the lake.
541. Earl Smith, chief of the Water Management Division of the Arkansas Natural Resources
Commission, testified that phosphorus impairs many of the area’s streams, including the Illinois
River, and that pasture land using land-applied poultry litter as a fertilizer is a significant
contributor to nonpoint phosphorus sources. [TR at 9603:9-19; 9609:23-9610:5 (Smith)].
35

The remaining 11 percent of estimated average total phosphorus loading to the lake was attributed to
“background.” [OK Ex. 3285, Table XXIV].
36
“Animal operations” including poultry, dairy cattle, and beef cattle operations.

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542. Shanon Phillips, Director of the Water Quality Division at the Oklahoma Conservation
Commission, opined, based on her education and experience, and to a reasonable degree of
scientific certainty, that nutrients from land-applied poultry waste contribute to nutrient loading of
the waters of the IRW, and that poultry waste adversely affects the water quality of the basin. [TR
at 1384:2-7; 1384:22-25; 1532:6-9 (Phillips)].
543. Based on the above and foregoing findings, the court finds that the run off from fields
fertilized with poultry waste contain an environmentally significant amount of phosphorus. The
court finds that phosphorus that has run off from land-applied poultry waste generated by poultry
is a significant source of the phosphorus causing injuries to the waters of the IRW.
O. Defendants’ Awareness that Phosphorus from Land-Applied Poultry
Waste is Contributing to Water Pollution in the IRW
544. The environmental consequences of phosphorus in land-applied poultry waste in the
IRW have long been known to defendants. Even assuming, however, that defendants were
unaware of these consequences, the State has presented ample evidence that the environmental
consequences of phosphorus in land-applied poultry waste in the IRW have long been knowable to
defendants.
545. Mark Simmons, Chairman of Simmons Food, testified that the poultry industry started
recognizing the potential environmental impact of poultry waste in the 1980s. [TR at 4132:234133:10 (Simmons)]. The industry’s initial concern was nitrogen enrichment of water bodies, but
by the mid-1990’s, the industry’s concern shifted to phosphorus impact. [TR at 4133:11-24
(Simmons)].
546. In 1988, Martin Maner, then an employee of the Arkansas Department of Pollution
Control and Ecology (and later, the chief of the water division of the Arkansas Department of
Environmental Quality from 2004 to 2008) authored a paper titled “Agricultural Land Use,

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Nutrients, and Water Quality in Benton and Washington Counties.” [OK Ex. 3312]. Maner
wrote:
Wastes from animal production . . . disposed of by land application . . . are high in
nitrogen and phosphorus and may contribute nutrients to groundwater or surface
water via percolation and runoff.
Benton and part of Washington County are largely underlain by fractured limestone
of the Boon Formation. The soils overlying the Boone are moderately to
excessively well drained. Because of these features, rainfall percolates readily
through the soil and into the shallow groundwater aquifer. Therefore soluble
materials placed on the surface enter the groundwater with relative ease.
* * *
Nitrogen and phosphorus should be applied at a rate not greater than what cover
plants can assimilate. . . . Excess values built up in the soil will be washed into
surface waters whenever erosion occurs.
Chicken manure has a higher phosphorus to nitrogen ratio than is utilized by plants.
If the application of this material is based on its nitrogen content, an excess of
phosphorus will build up.
[OK Ex. 3312 at ADEQ-225-226]. Maner testified the paper was produced within the
department’s water division and then made available to “interested parties.” [Ex. 3 at pp. 12-13
(Maner Dep.)].
547. Also in 1988, the first National Poultry Waste Management Symposium (“NPWMS”)
was conducted. [Court’s Ex. 1 at p. 2 (Blake Dep.); OK Ex. 3391]. As reported in the
symposium:
[T]he Symposium was organized to discuss the issues, problems and potential
solutions to problems with poultry waste management and utilization. Growth and
concentration of the poultry industry has resulted in large volumes of manure, used
litter, hatchery wastes, dead birds, offal and wash water that need to be utilized or
disposed of in way[s] that minimize undesirable environmental impacts.

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[OK Ex. 3391 at iii]. The symposium included a presentation titled “Runoff Potential from
Poultry Manure Applications,” which discussed phosphorus runoff from land-applied poultry
waste. [Id. at pp. vi and 102-106].
548. In 1990, the second NPWMS was held. [OK Ex. 3393]. As reported in the symposium:
The demand for poultry and poultry products continues to increase rapidly, and is
being supplied by very large integrated organizations which are concentrated in
relatively small areas of the nation’s land mass. The development of these large
organizations has resulted in a wealth of sophisticated, uniform, low-cost, highly
nutritious poultry products for our nation’s consumers; but the concentration of
poultry production and processing has also resulted in the production of huge
amounts of by-products including manure, farm mortalities, feathers, processing
plant offal and hatchery wastes which must be managed on a daily basis.
[Id. at p. 1]. One of the presentations, “How Poultry Waste Management Can Prevent
Contamination of Ground and Surface Water,” stated in pertinent part that “the owner of the flock,
generally a feed company and/or processor, can exercise control over individual growers via the
contract between the two parties. Contract requirements could be expanded to include
environmental concerns.” [Id. at p. 17].
549. In 1992, the third NPWMS was conducted. [OK Ex. 3395]. As reported in the
proceedings:
Chief among the problems facing the poultry industry are those of waste
management and associated environmental issues. Practically all of these problems
are addressed in-depth by the wide range of speakers and poster presentations
scheduled for this Symposium.
[Id. at p. 1].
550. Several of defendants’ employees and/or representatives have attended the NPWMS
meetings. The 1988 program lists Cargill as a sponsor and two Cargill representatives as
attendees. [OK Ex. 3391 at pp. iv, 194], and the Cargill Defendants admit their employees
routinely attend NPWMS meetings and seminars. [OK Ex. 860 at pp. 13-14; TR at 4725:17-23

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(Maupin); TR at 4926:22-4927:4 (Alsup). Likewise, Claud Rutherford of Simmons testified to
attending several of the symposia beginning in 1990, chairing one of its committees and making a
presentation at the 1992 NPWMS. [TR at 4226:6-12 (Rutherford); OK Ex. 3395]. Employees of
the Tyson Defendants have attended one or more symposia. [OK Ex. 944 at pp. 7-10; OK Ex.
3393; OK Ex. 3395]. At the 1992 NPWMS, an employee of the Tyson Defendants made a
presentation titled “Corporate Management Commitment to Waste and Environmental
Management.” [OK Ex. 3395 at p. 25]. A Cal-Maine employee is identified as having attended
the 1996 NPWMS, during which presentations were made on local environmental challenges, new
methods of waste management and nutrient management plans. [OK Ex. 3399 at p. iv; OK Ex.
893 at pp. 7-11]. Ed Fite testified that he attended the 1998 NPWMS in Springdale, Arkansas, and
saw representatives from the Tyson Defendants, the Cargill Defendants, and Simmons. [TR at
648:11-21; 649:8-650:7 (Fite)].
551. In Arkansas, representatives of the Tyson Defendants, Cargill Defendants and Simmons
served on Governor Clinton’s Animal Waste Management Task Force, which convened in 1990
and issued its final report in 1993. [OK Ex. 5573 at p. OSRC0001617]. The stated purpose of the
task force was “to advance solutions to animal waste disposal problems.” [Id. at p.
OSCR0001607]. Claud Rutherford of Simmons was the vice-chair of the task force and chaired
the Problems and Issues Committee, which recognized the environmental degradation and water
quality issues presented by animal waste. [Id. at OSCR0001626-1627]. The task force’s 1993
report included a chart prepared by the Problems and Issues Committee, which listed problems
from animal waste, including “environmental degradation,” “water quality (fishable and
swimmable),” and “drinking water: increase risk of pathogens, violations of MCLs, increased
treatment for palatability.” [OK Ex. 5573A at OSCR0001627]. Rutherford also chaired the

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Voluntary Approach Evaluation Committee of the task force, which reported, “[a] voluntary
program has been prepared (A Voluntary Program for the Prevention of Nonpoint Source
Pollution as Relates to Animal Waste).” [OK Ex. 5573 at OSR0001610].
552. In 1990, the Southeastern Poultry and Egg Association funded a research project by Dr.
Dwayne Edwards at the University of Arkansas. [Court’s Ex. 11 at p. 32 (Edwards Dep.)]. The
purpose of his study was to obtain data regarding poultry industry impacts on the environment.
[Id.] One finding of the study was that “masses of litter constituents transported off the plots via
runoff significantly increased with both litter application rate and rainfall intensity.” [Id. at p. 10
(Edwards Dep.)].
553. The U.S. Poultry and Egg Association (formerly the Southeastern Poultry and Egg
Association), headquartered in Decatur, Georgia, is a poultry industry trade group. [Court’s Ex. 2
at p. 6 (Dalton Dep.)]. In 1992, the association—together with the Soil Conservation Service
(later known as the National Resource Conservation Service), the Tennessee Valley Authority and
the EPA—formed the Poultry Water Quality Consortium. [Id. at pp. 23, 27 (Dalton Dep.)]. The
purpose of the consortium was to collect and disseminate information on the current state of
knowledge of poultry water quality. [Id. at pp. 23-27 (Dalton Dep.)]. The consortium published
the Poultry Water Quality Handbook in 1994. [Id. at p. 28 (Dalton Dep.); OK Ex. 800]. The
handbook stated, in pertinent part:


How [poultry] waste is disposed of treated, or managed has a direct influence on the
cleanliness of surface and groundwater.” [Id. at PIGEON.0498].



Poultry wastes . . . contain significant amounts of phosphorus . . . . [I]f it is used
improperly, phosphorus can . . . contribute to environmental and water quality
problems. It can be a major cause of water quality degradation in surface waters.
[Id. at PIGEON.0514].



When nitrogen and phosphorus concentration in waterbodies rise too high, algae
and rooted aquatic plants take over, prematurely aging and choking the waterbody
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and creating undesirable conditions—odors, offensive taste, and discoloration—all
of which can make the water unfit for consumption or recreational and aesthetic
use. Further, these eutrophic conditions can kill fish, clog water treatment plant
filters, and lead to the growth of blue-green algae, a species that can be fatal to
cattle. [Id. at .0514-.0515].
554. The Poultry Water Quality Handbook was widely distributed by the Water Quality
Consortium, including the U.S. Poultry and Egg Association’s annual trade show. [Court’s Ex. 2
at pp. 36-37, 40-42 (Dalton Dep.)]. For instance, Jim Pigeon acquired it at a conference he
attended as a field man for Peterson. [TR at 3825:7-24; 3837:25-3838:6 (Pigeon)].
555. A second edition of the Poultry Water Quality Handbook was published in 1998. [OK
Ex. 801]. It stated that how poultry manure and litter were disposed of, treated, or managed “will
directly influence the cleanliness and safety of surface and groundwater resources”; that when too
much poultry waste is applied to the land, it can move with the soil into surface water or through
soil into groundwater, impairing water quality; that phosphorus has become a major cause of water
quality degradation; that applying poultry waste at rates based on nitrogen needs can lead to
phosphorus buildup in the soil; that “[p]hosphorus-laden soils or dissolved phosphorus can move
via runoff into rivers, lakes, and streams, where it causes excessive plant and algae growth, which
in turn depletes the dissolved oxygen content in the water”; and that “[t]he potential for adverse
environmental impacts appears greater as a result of the industry’s trend to grow ever larger
numbers of birds on smaller areas of land.” [Id. at CARTP220108, CARTP220134,
CARTP220132-0134; CARTP220119]. Peterson distributed the second edition of the handbook
to its field men (service techs) and its growers. [TR at 3825:7-3826:15; 3827:25-3828:6
(Pigeon)].
556. After conducting a study of animal waste handling, storage, and disposition practices in
Oklahoma, Governor Frank Keating’s Animal Waste & Water Quality Protection Task Force

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presented its Final Report in December 1997. [DJX2757]. Tulsa attorney Gerald Hilsher, a
member of the task force, testified that the task force was concerned that poultry litter was a
primary cause of water quality degradation, and therefore, the study focused in part on how the
industry is dealing with land application of litter. [TR at 588:17-589:4 (Hilsher)]. Representatives
of the Tyson Defendants and Simmons were present at task force meetings. [TR at 651:16-25
(Fite); 600:13-28; 601:10-15 (Hilsher)].
557. Ed Fite testified he has suggested several times to representatives of the Tyson
Defendants and Simmons that defendants move poultry waste out of the IRW and increase the cost
of birds in the marketplace by one-half to one cent per bird to compensate for the cost of waste
removal. [TR at 740:18-741:8; 742:19-743:7; 744:4-745:3; 745:20-746:4; 746:10-747:10 (Fite)].
558. In 1998, the Oklahoma Legislature enacted the Oklahoma Registered Poultry Feeding
Operations Act. See 2 Okla. Stat. § 10-9.1, et seq.
559. In 2001, the City of Tulsa sued a number of the defendants to this lawsuit, alleging that
the defendants’ poultry waste management practices were polluting the City’s water supply in the
Eucha/Spavinaw watershed. See City of Tulsa v. Tyson Foods, Inc., Case No. 01-CV-0900-B(C),
N.D. Okla. (2001).
560. Representatives of the defendants testified uniformly that they do not know, nor have
they attempted to find out, whether land-applied poultry waste generated by their birds in the IRW
has contributed to water quality problems in the IRW. [TR at 3409:12-3410:5 (Pilkington for
Tyson Defendants); TR at 4734:14-4735:10 (Maupin for Cargill Defendants); TR at 4308:3-14
(McClure for George’s Defendants)]; TR at 4146:12-4147:2 (Simmons for Simmons); TR at
4839:5-25 (Houtchens for Peterson); TR at 4453:4-7 (Storm for Cal-Maine)].

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561. Based upon the foregoing, the court finds each defendant has known and/or has had
reason to know that injuries to the waters of the IRW were and continue to be substantially certain
to result from the land application of poultry waste in the IRW.
P. Other Contributors to Phosphorus Loading to the Waters of the IRW
562. A number of sources other than poultry waste also contribute to phosphorus loading of
the waters of the IRW.
1. Point Sources (Waste Water Treatment Plants)
563. As previously stated, it is undisputed that point sources account for less than 20 percent
of the phosphorus load reaching Lake Tenkiller. See FF #259.
2. Urban Runoff
564. Urban areas comprise approximately five to seven percent of the total land area of the
IRW. [OK Ex. 3351 at OSU0005156; TR at 10927:23-10928:8 (Sullivan)].
565. The Tenkiller Clean Lakes study concluded that urban runoff accounts for 3.49 percent
of total phosphorus loading to Lake Tenkiller. [OK Ex. 3285 at p. 46, Table XVII].
3. Commercial Fertilizers
566. The testimony before this court was that land application of poultry litter is widespread
over the IRW and provided a low-cost alternative fertilizer for ranch operations. The record does
not appear to contain a credible calculation of phosphorus contributions from commercial
fertilizers.
4. Cattle
567. The parties agree that cattle manure is a substantial nonpoint source of phosphorus
loading to the streams and rivers of the IRW. However, they disagree about the exact percentage
it contributes to the total phosphorus load. And the State asserts that phosphorus from cattle

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manure should be attributed to poultry waste because cattle are “recyclers” of phosphorus from
poultry waste used as a fertilizer.
568. The State’s witness estimated the IRW cattle population at approximately 290,000. [TR
at 2437:9-15 (Fisher)]. Defendants’ expert put the number at 200,000. [TR at 9835:19-23 (Clay)].
569. Cattle impact water quality in a number of ways, including: depositing manure directly in
or next to rivers and streams; removing stream bank vegetation in areas where they loaf, thereby
increasing the potential for erosion; compacting soils, thereby reducing the possibility of
infiltration; and by channelization. [TR at 2443:20-2444:9 (Fisher); 10719:11-10726:14
(Sullivan)].
570. Defendants’ expert, Dr. Billy Clay,37 testified that cattle in the IRW annually generate
hundreds of thousands of dry tons of manure that contain more phosphorus than all the poultry
litter available for land application in the IRW. [TR at 9841:1-12; 9847:2-7; 9848:21-9849:6;
9851:22-9854:5 (Clay)]. Specifically, he testified that on a dry weight basis, cattle produce
217,000 tons of manure and poultry produce 157,000 tons of manure annually.38 [TR at 9851:229852:6 (Clay)]. Further, he calculated that phosphorus contributions to the IRW from cattle
manure totaled 3,136 tons annually; in contrast, he opined that phosphorus contributions from

37

Dr. Clay received an M.S. in agricultural sciences with emphasis on agronomy and a DVM, both from
Oklahoma State University. [TR at 9802:7-15 (Clay)]. He is board certified in veterinarian toxicology.
[Id.] He has taught undergraduate classes on forage crops, and veterinary medicine classes related to food
animals and herbivorous animals. [TR at 9803:14-24 (Clay)]. He has worked on research and
development of pharmaceuticals for private enterprise entities. [TR at 9805:10-21 (Clay)]. Additionally, he
has done consulting for companies in matters related to toxicology, veterinary medicine and agronomy.
[TR at 9806:11-17 (Clay)].
38
The poultry manure figure is net of poultry manure exported from the IRW, which he calculated to be
70,000 tons. [TR at 9852:4-10 (Clay)].

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poultry manure remaining in the IRW totaled 2,398 tons annually. [TR at 9853:19-23 (Clay);
DDX 265, 266].39
571. In addition to cattle, other types of livestock and wildlife contribute 950 tons per year of
phosphorus in the IRW. [TR at 9850:10-9851:18 (Clay)].
572. Nonetheless, as admitted by Dr. Clay based on his own calculations, poultry manure is a
significant contributor of phosphorus (2,398 tons annually) to the IRW. [TR at 9877:17-9878:13
(Clay)]. Moreover, defendants have not refuted the State’s evidence that cattle, because they
graze in pastures where poultry waste has been land applied, are recyclers of phosphorus from
poultry waste. [TR at 916:9-10 (Fite); TR at 6623:22-6624:16 (Engel)].
5. Streambank Erosion
573. Streambank erosion also contributes to the phosphorus load of the streams and rivers of
the IRW. Streambanks in the IRW contain nutrients, including phosphorus. [TR at 1527:12-14
(Phillips); TR at 10701:17-20 (Sullivan)]. Defendants’ expert, Wayne Grip,40 using aerial
photography, documented channel shifts in the Illinois River over the past 30 to 40 years. [TR at
10007:11-22 (Grip)]. He estimated that 15.5 million cubic yards of streambank soils have eroded
into the main channel of the IRW. [TR at 10080:18-21 (Grip)]. However, none of defendants’
experts attempted to quantify the amount of phosphorus contributed by streambank erosion. [TR
at 10097:23-10098:22 (Grip)]. To further complicate matters, the record reflects that phosphorus
from land-applied poultry waste infiltrates streambank soil by percolating through the shallow
karst. Thus, phosphorus levels in streambank soils that exceed background levels of phosphorus
are caused, at least in part, by land-applied poultry waste.
39

Dr. Clay testified that on a dry weight basis, poultry manure has three times as much phosphorus as
cattle manure. [TR at 9879:17-23 (Clay)].
40
Wayne Grip, a photogrammetrist and photointerpretor, is the co-founder and president of Aero-Data
Corporation, a consulting firm. [TR at 9986:11-25, 9991:15-17 (Grip)].

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6. Roads
574. Defendants’ expert, Dr. Timothy Sullivan, estimated there are a total of 2,600 miles of
unpaved road in the IRW. [TR at 10708:14-16 (Sullivan)]. However, the State’s expert, Dr.
Engel, opined that dirt roads are not an independent source of phosphorus beyond background.
[TR at 6628:22-6629:19 (Engel)]. He further testified that the amount of any phosphorus running
off from dirt roads would be small, and if there is any phosphorus beyond natural background
levels on the dirt roads in the IRW, one of the sources of that phosphorus would be poultry waste.
[Id.]
7. Septic Systems
575. Approximately 73,000 people—or a third of the population of the IRW—use septic
tanks. [TR at 6532:4-11 (Engel); TR at 10709:6-12 (Sullivan)]. Dr. Engel testified that on
average, the amount of phosphorus contributed to a septic system by an individual is
approximately 1.1 pound per year. [TR at 6594:5-14 (Engel)]. Septic systems have the potential
to impact both groundwater and surface waters. [TR at 1403:9-17 (Phillips); 6533:2-5 (Engel);
10711:7-9 (Sullivan)].
576. Dr. Sullivan testified that Dr. Engel’s study reported a statistically significant correlation
between the density of septic systems in the subwatersheds he studied and phosphorus
concentration in streams. [TR at 10713:2-16 (Sullivan)]. Although Dr. Engel dismissed the
correlation as an artifact of another correlation with poultry house density, Dr. Sullivan believed
“there was no adequate basis for that dismissal.” [TR at 10713:17-20 (Sullivan)].
577. Nevertheless, Sullivan conceded that—even assuming that all septic systems in the IRW
were to discharge directly into streams—the total amount of phosphorus contributed by septic

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would be approximately the equivalent of 16 poultry houses (in a watershed with approximately
1,800 active poultry houses). [TR at 10906:12-10907:14 (Sullivan].
578. The parties did not study phosphorus contributions from septic systems in the IRW. [TR
at 9154:24-9155:5 (Connolly); TR at 9755:20-23 (Larson)].
8. Nurseries
579. There are three large nursery operations in the IRW. [TR at 834:1-4 (Fite)]. Based on
the evidence presented, the court finds that nurseries are not a significant contributor of
phosphorus to the IRW.
9. Golf Courses
580. There appear to be one or two golf courses in the IRW. [TR at 518:23-519:1 (Tolbert);
TR at 833:12-25 (Fite); TR at 9651:7-12 (Duncan)]. Based on the evidence presented, the court
finds that golf courses are not a significant contributor of phosphorus to the IRW. [TR at 6203:1218 (Engel)].
10. Gravel Mining
581. The State has adopted rules to regulate gravel mining in scenic rivers. [TR at 3538:13-21
(Strong); TR at 940:21-24 (Fite)]. Gravel mining operations are no longer permitted on rivers or
streams in the IRW within the jurisdiction of the Oklahoma Scenic River Commission (“OSRC”).
[TR at 790:14-19 (Fite)]. One gravel mining operation operates on the Baron Fork at Baron,
Oklahoma, outside the jurisdiction of the OSRC. [TR at 790:20-791:20 (Fite)]. There is
insufficient evidence before the court to quantify the amount of phosphorus, if any, generated by
that operation.

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582. Based on his review of prior work, reports and literature regarding the IRW, Dr. Engel
excluded gravel mining as a source of phosphorus loading from his modeling analysis. [TR at
6564:11-20 (Engel)].
11. Human Recreational Activity
583. As previously noted, significant recreational activities occur in the IRW. Neither the
State nor defendants have provided evidence regarding the extent to which these activities
contribute to phosphorus loading in the IRW.
12. State Conduct
584. There is limited evidence on the record that the State has contributed to phosphorus
loading to the waters in the Oklahoma portion of the IRW. OSRC director Ed Fite testified he
applied a single pickup load of composted poultry waste to four contained flower beds at the
OSRC office. [TR at 736:3-737:3 (Fite)]. Additionally, the State’s expert, Dr. Caneday, testified
he was aware that sewage overflows from Tenkiller State Park’s waste management system had
occurred during flooding events in the early to mid-1990s, that the overflows would have had a
direct pathway to Lake Tenkiller, and that the ODEQ ordered Tenkiller State Park to overhaul its
waste management system. [TR at 4394:13-17; 4396:8-15; 4397:21-4398:5; 4398:11-14
(Caneday)]. There has been no evidence that either of these events had any significant impact on
phosphorus loading to waters of the IRW.
13. Summary
585. Defendants criticize the State for not adequately considering other potential sources of
phosphorus as part of its investigation. However, based on the evidence produced at trial, it is
clear that poultry waste is a major contributor to the levels of phosphorus in the waters of the
IRW.

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586. The court finds, therefore, that while other sources contribute to phosphorus loading of
the IRW, poultry waste is the principal contributor of the phosphorus causing injuries to the waters
of the IRW.
Q. Efforts by the State of Oklahoma to Address Phosphorus Loading in the IRW
587. The State has taken a number of steps, both on its own and with the State of Arkansas, to
address phosphorus loading in the IRW.
588. In 1997, at the request of the State, the Compact Commission adopted a nutrientreduction goal of reducing the annual loading of phosphorus in the IRW by 40 percent. [TR at
9466:22-9467:10 (Smith)].
589. Recommendations from Governor Keating’s Animal Waste Task Force led to passage of
ORPFOA in 1998. [TR at 2895:19-2896:9 (Gunter)].
590. In 2003, Arkansas and the State signed a “Statement of Joint Principles and Actions,” in
which both states agreed, among other things, to coordinate water quality monitoring efforts and
to work on a comprehensive watershed management plan. [OK Ex. 5666, Attachment C].
Arkansas also agreed to work with its point source dischargers to lower phosphorus discharges.
[Id.] The States also agreed to jointly pursue funding, including federal funding for various litter
removal and reuse techniques in order to remove excess poultry litter from the affected watershed.
[Id. at p. 2]
591. Additionally, ODEQ has imposed more stringent limits for phosphorus in new permits
for Oklahoma wastewater treatment plants, and assisted with improvements to the plants. [OK Ex.
5664 at p. 5; OK Ex. 5665 at p. 5]. ODEQ also investigated complaints and has undertaken
enforcement actions against several gravel mining operations in the IRW. [Id.]

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592. The State has participated in the USDA’s Comprehensive Reserve Enhancement
Program and the EPA’s Section 319 program to address phosphorus issues in the IRW. [TR at
976:12-977:3; 1299:22-1302:2 (Phillips)]. These programs include various projects to prevent
nonpoint source contributions of phosphorus, including projects involving riparian buffers,
riparian exclusion of cattle, pasture management and planting to prevent overgrazing, septic
system upgrades to replace inadequate septic systems and programs for hauling litter out of the
watershed. [TR at 1351:3-12; 1357:10-23; 1361:22-1363:2; 1368:20-25; 1370:13-25 (Phillips)].
R. Remediation
593. The State seeks an injunction that (1) makes defendants responsible for waste generated
by their birds and precludes land application of poultry waste in the IRW at rates greater than the
agronomic rate; (2) requires remediation of the IRW; and (3) requires defendants, at their own
expense, to undertake an investigation of remedial actions to address the effects of land
application of poultry waste in the IRW and to pay for the costs of implementing those remedial
actions. Additionally, the State requests monitoring of defendants’ compliance with the terms of
any injunction entered by the court.
594. The State retained Todd King, a principal engineer with Camp, Dresser & McKee, to
conduct a preliminary investigation of options for remediation of the IRW. [TR at 7990:127991:7 (King)]. King investigated and “retained” the following remedial options: (1) cessation,
(2) buffer strips, and (3) increased treatment of drinking water. [TR at 7996:1-7997:22; 7998:108001:5; 8007:1-8008:13 (King)]. King suggested the following remedial options be investigated
and further assessed: (1) excavation, (2) alum application to fields, (3) crop and nutrient
management with nitrogen supplementation, (4) bank stabilization, (5) constructed wetlands, (6)

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alum application to Lake Tenkiller, (7) sediment removal from Lake Tenkiller, and (8) layered
aeration of Lake Tenkiller. [TR at 8001:6-8006:25; 8008:14-8011:15 (King)].
595. In addition to King’s recommendations, witnesses for the State advocated exportation of
all poultry litter outside the watershed for application to phosphorus-deficient soil, and lake
aeration to improve the fish habitat. [TR at 1514:7-12; 1547:2-18 (Phillips); TR at 7897:14-22
(Welch)].
III. Conclusions of Law
1.

Remaining for adjudication in this case are the State’s claims for injunctive relief

for violation of Oklahoma statutory public nuisance law, federal common law nuisance, and
common law trespass, its claims for injunctive relief and penalties under 27A Okla. Stat. § 2-6205, and its claim for injunctive relief under 2 Okla. Stat. § 2-18.1.
A. Standing
2.

The State asserts it has standing on the basis of sovereign and quasi-sovereign

interests. See Doc. 1822.
3.

A state, in its capacity of quasi-sovereign, has “an interest independent of and

behind the titles of its citizens, in all the earth and air within its domain.” Georgia v. Tenn.
Copper Co., 206 U.S. 230, 237 (1907). Further, “the state, as quasi-sovereign and representative
of the interests of the public, has a standing in court to protect the atmosphere, the water, and the
forests within its territory, irrespective of the assent or dissent of the private owners of the land
most immediately concerned.” Hudson Cnty. Water Co. v. McCarter, 209 U.S. 349, 355 (1908).
The State may sue as parens patriae to protect its citizens against “the pollution of the air over its
territory; or of interstate waters in which the state has rights.” Satsky v. Paramount Commuc’ns,
Inc., 7 F.3d 1464, 1469 (10th Cir. 1993) (citations omitted).

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4.

The State has standing to pursue its statutory public nuisance, federal common law

nuisance and statutory anti-pollution violation claims (27A Okla. Stat. § 2-6-205 and 2 Okla. Stat.
§ 2-18.1) based on its quasi-sovereign interests. Additionally, 27A Okla. Stat. § 2-3-504(F)(1) and
(2) and 2 Okla. Stat. § 2-16(B) give the Attorney General the authority to sue on behalf of the
State for these statutory violations.
5.

The State asserts standing to pursue its trespass claim based on its sovereign

interests. The State relies in part on 60 Okla. Stat. § 60(A), which provides:
Water running in a definite stream, formed by nature over or under the surface, may
be used by the owner of the land riparian to the stream for domestic uses . . ., but he
may not prevent the natural flow of the stream, or of the natural spring from which
it commences its definite course, nor pursue nor pollute the same, as such water
then becomes public water and is subject to appropriation for the benefit and
welfare of the people of the state, as provided by law[.]
Id. (emphasis added). The State claims a possessory property interest in waters flowing in definite
streams in the Oklahoma portion of the IRW.
6.

Defendants argue the State lacks standing to assert its trespass claim because it

cannot claim exclusive possession of the waters. As the court previously observed, the Cherokee
Nation also claims a substantial ownership interest in the waters of the IRW in Oklahoma. See
Oklahoma v. Tyson Foods, Inc., 258 F.R.D. 472, 476-78 (N.D. Okla. 2009). Further, the court
concluded the State did not have standing as a quasi-sovereign to assert a claim for damages for
injury to lands and natural resources in the IRW that fall within the Cherokee Nation’s sovereign
interests. Id. at 483. However, with respect to the claim at issue, the State is seeking injunctive
relief, and it asserts a possessory interest in the waters of the IRW. The State’s trespass claim
does not require that it hold exclusive possessory rights. The State need only establish it has a
right to the waters of the IRW superior to defendants’ right. See Lambert v. Rainbolt, 250 P.2d

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459, 461 (Okla. 1952) (finding “occupancy and possession appears to be sufficient to make out a
case against anyone, except the rightful owner”).
7.

The record reflects that the State, at a minimum, regulates, manages and controls

the waters of the IRW within Oklahoma.
8.

The court concludes as a matter of law that the State’s interests in the waters of the

IRW within Oklahoma are superior to defendants’ interests, and the State, therefore, has the
requisite property interest to maintain its trespass claim for injunctive relief against defendants.
B. Causation/Liability Issues
9.

The State alleges that phosphorous contained in land-applied poultry litter runs off

fields throughout the IRW and finds its way to rivers, streams, and groundwater, where it injures
water quality and aquatic populations. Defendants assert the State has not met its burden to prove
that phosphorous from land applications of poultry litter for which defendants are legally
responsible reaches the waters in the Oklahoma portion of the IRW used for recreation or drinking
water in quantities or a form sufficient to cause any of the State’s alleged injuries. This argument
raises a number of sub-issues, including (1) whether defendants can be held liable for
contamination from runoff of poultry litter spread by their growers; (2) whether the State must
prove that defendants polluted the IRW by direct evidence; and (3) whether the State must prove
what portion of the harm each defendant contributed.
1. Liability for Litter Spread by Growers
10.

The State argues defendants are vicariously liable for phosphorus in IRW waters

resulting from runoff from land application of their growers’ poultry litter. This issue was
addressed in City of Tulsa v. Tyson Foods, Inc., 258 F. Supp. 2d 1263 (N.D. Okla. 2003), vacated
in connection with settlement. There, the City of Tulsa sued Tyson Foods, Inc. and other poultry

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industry defendants, alleging that the acts and omissions of the defendants polluted lakes from
which Tulsa drew its water supply. As here, the plaintiff alleged that land application of poultry
litter by contract growers for the poultry defendants resulted in eutrophication of the lakes from
excess phosphorus loading. Id. at 1297. And as here, th defendants argued that their growers
were independent contractors, and they were not vicariously liable for the growers’ actions. Id.
The court found that while there were factual disputes about the degree of control each defendant
exerted over its growers, the integrators could be held liable. Id. Citing Restatement (Second) of
Torts § 427B,41 the court held that the Poultry Defendants were vicariously liable for any trespass
or nuisance created by their growers because “they were aware that in the ordinary course of doing
the contract work, a trespass or nuisance was likely to result.” Id. at 1296-97.42
11.

Here, as in City of Tulsa, the defendants knew their growers, in the ordinary course

of their work for defendants, spread poultry litter on the land in the IRW, and knew or should have
known no later than the late 1990s that their growers’ land application of litter was a primary
source of the excess phosphorus in the waters of the IRW. Once on notice, defendants had a duty
to abate the nuisance and put a stop to the trespass, neither of which they have done. City of

41

Section 427B provides:
Work Likely to Involve Trespass or Nuisance
One who employs an independent contractor to do work which the employer knows or has
reason to know to be likely to involve a trespass upon the land of another or the creation of
a public or a private nuisance, is subject to liability for harm resulting to others from such
trespass or nuisance.

Restatement (Second) Torts § 427B (1965).
42

The court views City of Tulsa as persuasive authority. The decision was vacated by unopposed motion
solely as part of the settlement of the action. See City of Tulsa, Case No. 4:01-cv-00900, Doc. 472 and
Doc. 473, ¶8.

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Tulsa, 258 F. Supp. 2d at 1295-96. Therefore, they are liable for any trespass or nuisance created
by their growers. Id. at 1296.
2. Concurrent Tortfeasor Liability
12.

The State alleges defendants are concurrent tortfeasors. As the Oklahoma Supreme

Court has explained:
Tortfeasors are classified as concurrent tortfeasors when their independent acts
concur to produce a single or indivisible injury. In other words, in the case of joint
tortfeasors some type of concert of action (or omission) is required, while in the
case of concurrent tortfeasors such concert is lacking, but a single or indivisible
injury or harm is nonetheless produced. Notwithstanding the lack of concerted
action and even though the act of one may not have alone caused the injury or
brought about the result, it has long been recognized in Oklahoma that concurrent
tortfeasors, like joint ones, are each responsible for the entire result if the patient is
free from negligence.
Kirkpatrick v. Chrysler Corp., 920 P.2d 122, 126 (Okla. 1996) (citations omitted). See also
Harper-Turner Oil Co. v. Bridge, 311 P.2d 947, 952 (Okla. 1957).
13.

An injury is indivisible when it is incapable of apportionment. See Johnson v. Ford

Motor Co., 45 P.3d 86, 91 (Okla. 2002). Here, as in City of Tulsa, the State alleges a single
indivisible injury. See City of Tulsa, 258 F. Supp. 2d at 1297.
14.

“With respect to environmental nuisance, such as pollution of a stream or pollution

of the air surrounding a community, courts have commonly found that such pollution constitutes
an indivisible injury.” Herd v. Asarco, Inc., 2003 U.S. Dist. LEXIS 27381, at *41 (N.D. Okla.
July 11, 2003), vacated in part by Herd v. Blue Tee Corp., 2004 U.S. Dist. LEXIS 30673 (N.D.
Okla. Jan. 13, 2004)43 (citing Union Texas Petroleum Corp. v. Jackson, 909 P.2d 131, 149-50
(Okla. Civ. App. 1995) (saltwater contamination of city’s water supply); Harper-Turner Oil Co. v.
Bridge, 311 P.2d 947, 950-51 (Okla. 1957) (contamination of water well by oil well); United
43

The court’s July 11, 2003 order was vacated as to two defendants only after those defendants settled
with plaintiffs, based on unopposed motion. See Case No. 01-CV-891-H(C), Doc. 752, N.D. Okla. (2003).

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States v. Pesses, 120 F. Supp. 2d 503, 507 (W.D. Pa. 2000) (hazardous substances of cadmium,
chromium, copper, lead, magnesium, mercury, nickel, thorium and zinc, some of which was
released into the air, soil and water, combined to form indivisible injury).
15.

The party claiming an injury is divisible bears the burden of proving it. See

Restatement (Second) of Torts § 433B(2) (“Where the tortious conduct of two or more actors has
combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his
liability on the ground that the harm is capable of apportionment among them, the burden of proof
as to the apportionment is upon each such actor.”); Union Texas Petroleum Corp., 909 P.2d at
149-50.
16.

Even when the principal injury is indivisible and therefore incapable of

apportionment, the plaintiff bears the burden of presenting sufficient evidence to prove that “each
defendant’s act was a contributing factor in producing the plaintiff’s injuries.” Johnson, 45 P.3d
at 91; see also Lee v. Volkswagen of America, Inc., 688 P.2d 1283, 1289 (Okla. 1984); HarperTurner Oil Co., 311 P.2d at 952 (“[O]ne cannot be held to be a joint tort-feasor unless there is
some evidence to connect him with the cause of the injury complained of.”).
17.

This court concurs with the standard for causation articulated in City of Tulsa:

“[P]laintiffs must show that each defendant contributed to phosphorus loading in the Watershed
and that the phosphorus in the Watershed has resulted in the harm and damages sustained by
plaintiffs.” City of Tulsa, 258 F. Supp. 2d at 1300.44

44

Contributory negligence is not a defense to an intentional tort claim. City of Tulsa, F. Supp. 2d at 1301
(citing the Restatement (Second) of Torts § 825, cmt. d (1965)); Cities Serv. Oil Co. v. Merritt, 332 P.2d
677, 685 (Okla. 1958). Here, as in City of Tulsa, plaintiff has asserted the intentional torts of nuisance and
trespass. Thus, evidence showing that the State has contributed to phosphorus loading in the IRW does not,
as a matter of law, operate as a defense to the State’s claims of nuisance and trespass.

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18.

The issue then, is whether the State has presented evidence sufficient to prove, with

respect to each defendant, that its acts or the acts of its growers contributed to phosphorus loading
in the IRW.
3. Direct/Circumstantial Evidence
19.

A plaintiff may prove its claims by direct evidence, circumstantial evidence, or any

combination of the two. Indeed, “circumstantial evidence is not only sufficient, but may also be
more certain, satisfying and persuasive than direct evidence.” Desert Palace, Inc. v. Costa, 539
U.S. 90, 100 (2003) (citations omitted); see also Dillon v. Fibreboard Corp., 919 F.2d 1488, 1490
(10th Cir. 1990) (“It is acceptable for a party bearing the burden of proof to utilize sufficient
circumstantial evidence to support his or her position”); California Oil Co. v. Davenport, 435 P.2d
560, 563 (Okla. 1967); Harper-Turner Oil Co., 311 P.2d at 950-51; Peppers Refining Co. v.
Spivey, 285 P.2d 228, 231-32 (Okla. 1955).
20.

Nor is it necessary for the State to “track” the contaminant from its source to the

site of the injury. See Herd, 2003 U.S. Dist. LEXIS 27381 at *41. In Herd—a case involving
lead-laden dust alleged to have blown from defendants’ chat pile and tailings ponds, commingling
in the air, contaminating a community and causing indivisible injury—the court explained:
Once the lead-laden dust reaches the air stream, it is impossible to trace its precise
source. The Court therefore finds that the alleged injury is indivisible and that the .
. . legal principles regarding joint and several liability apply. To the extent
Defendants argue that they are entitled to summary judgment on grounds that
Plaintiffs have failed to allege facts that “trace” or “quantify” the lead-laden dust
causing the alleged nuisance in this case as to each individual Defendant’s chat
pile(s) or tailing pond(s), the Court finds that, under the facts present here, such
tracing or quantification is not required.
Id. at *41-42. In Herd, the court held that, in order to survive summary judgment, “[p]laintiffs
must establish some tangible threshold amount of “contribution’” of contaminants by each
defendant, and a de minimus, insignificant presence would not suffice. Id. at *43. The court relied

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on defendants’ collective contribution of 17 million tons of lead-laden mining waste to conclude
plaintiffs had met their burden. Id. at *44.
21.

The court finds and concludes that the State has proven that each defendant has

contributed significantly to phosphorus loading of, and injuries to, the waters of the IRW. Tracing
or quantification of the exact contribution is not necessary, and the State need not track
phosphorus form any particular field to the waters of the IRW.
C. Nuisance Claims
22.

The State asserts a state law nuisance claim for conduct occurring in Oklahoma that

caused harm in Oklahoma, as well as a federal common law nuisance claim for conduct occurring
in Arkansas that caused harm in Oklahoma.
1. Statutory Public Nuisance
23.

Oklahoma defines nuisance as follows:

Nuisance defined
A nuisance consists in unlawfully doing an act, or omitting to perform a duty,
which act or omission either:
First. Annoys, injuries or endangers the comfort, repose, health, or safety of others;
or
Second. Offends decency; or
Third. Unlawfully interferes with, obstructs or tends to obstruct, or renders
dangerous for passage, any lake or navigable river, stream, canal or basin, or any
public park, square, street or highway; or
Fourth. In any way renders other persons insecure in life, or in the use of property,
provided, this section shall not apply to preexisting agricultural activities.
50 Okla. Stat. § 1. A public nuisance is “one which affects at the same time an entire community
or neighborhood, or any considerable number of persons, although the extent of the annoyance or
damage inflicted upon the individuals may be unequal.” 50 Okla. Stat. § 2. See also Restatement

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(Second) of Torts § 821B (A public nuisance is “an unreasonable interference with a right
common to the general public.”); Holder v. Gold Fields Mining Corp., 506 F. Supp. 2d 792, 800
(N.D. Okla. 2007) (a common law nuisance is the “unwarrantable, unreasonable or unlawful use
by a person of his own property to the injury of another”). “Pollution of waters of the state
constitutes a public nuisance under Oklahoma law.” Fischer v. At’l Richfield Co., 774 F. Supp.
616, 619 (W.D. Okla. 1989). The plaintiff need not establish that a defendant’s actions were
unreasonable, but instead, need only establish that the resulting burden on the plaintiff was
unreasonable. N.C. Corff P’ship, Ltd. V. Oxy USA, Inc., 929 P.2d 288, 294 (Okla. Civ. App. 1996)
(citing Restatement (Second) of Torts § 822 cmt. b). Further, there is no prescriptive right to
maintain a public nuisance. Fischer, 774 F. Supp. at 620 (citing 66 C.J.S. Nuisance § 92
(1998)45). “No lapse of time can legalize a public nuisance amounting to an actual obstruction of
public right.” 50 Okla. Stat. § 7. A person is “subject to liability for a nuisance caused by an
activity not only when that person caries on the activity[,] but also when that person participates to
a substantial extent in carrying it on.” Restatement (Second) of Torts § 834 (1979).
24.

Defendants contend that they are immunized from liability under 50 Okla. Stat. § 4

because poultry litter was applied pursuant to AWMPs approved by the State. That statute
provides:
Nothing which is done or maintained under the express authority of a statute can be
deemed a nuisance.
50 Okla. Stat. § 4.
25.

Statutorily authorized acts are immune from suit for public nuisance. See Miller v.

Mayor of New York, 109 U.S. 385, 395 (1883); Carson Harbor Vill., Ltd. v. Unocal Corp., 270
F.3d 863, 870 (9th Cir. 2001) (en banc); City of Columbus v. Union Pac. R.R. Co., 137 F. 869, 872
45

Now located at 66 C.J.S. § 151 (2009).

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(8th Cir. 1905); Piggott v. Eblen, 366 S.W.2d 192, 195-96 (Ark. 1963); McKay v. City of Enid,
109 P. 520, 521 (Okla. 1910). See also Holder 506 F. Supp. 2d at 805 (private plaintiff (not
government) may seek damages under a nuisance theory for conduct authorized by law) (citing
E.I. Du Pont De Nemours Powder Co. v. Dodson, 150 P. 1085, 1087-88 (Okla. 1915).
26.

In Briscoe v. Harper Oil Co., 702 P.2d 33 (Okla. 1985), land owners executed an

oil and gas lease to an oil company that drilled a dry hole, constructed a reserve pit, and in the
course of its operations, damaged the landowners’ crops. Id. at 35. The landowners sued the oil
company for, inter alia, nuisance. Id. The jury found in favor of the landowners and awarded
damages. Id. On appeal, the Oklahoma Supreme Court affirmed the award, stating:
The fact that a person or corporation has authority to do certain acts does not give
the right to do such acts in a way constituting an unnecessary interference with the
rights of others. A license, permit or franchise to do a certain act cannot protect the
licensee who abuses the privilege by erecting or maintaining a nuisance.
Id. at 36. In Union Oil Co. v. Heinsohn, 43 F.3d 500 (10th Cir. 1994), defendant oil companies
argued they could not be held liable for nuisance because their sour gas processing plants had been
properly permitted and licensed by the state environmental agency. Id. at 504. The court, citing
Briscoe, rejected this argument, stating that “[l]icensing is not in itself enough to avoid liability.”
Id. And this court, in Herd, rejected the defendant mining companies’ argument that their mining
activities could not be deemed a nuisance because their actions were pursuant to express statutory
authority. Herd, 2003 U.S. Dist. LEXIS 27381 at *28. There, defendants relied on a federal
statutory scheme regarding the United States’ role in overseeing mining activities taking place on
Quapaw lands. Id. The court found the federal statutes were aimed at protecting Quapaw
landowners but in no way sought to regulate environmental problems resulting from mining. Id. at
*33. Further, and of particular relevance to this case, the court held that the “express authority”
cited by defendants “[did] not contain the requisite specificity for the Court to hold that, as a

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matter of law, all of Defendants’ actions in this case that could have created the nuisance were
‘expressly authorized by law.’” Id. at *35 (citing 66 C.J.S. Nuisances § 24 (1998)46). The court
concluded that regulations and leases relied upon by defendants were “not sufficient to be
considered authorization of an ‘exact method of operation,’ such that Defendants’ creation of the
chat piles and tailing ponds is immune from a nuisance claim.” Id. at *36.
27.

Here, the AWMPs issued to growers are not sufficiently specific for the court to

conclude, as a matter of law, that all of defendants’ actions that created the nuisance were
“expressly authorized by law.” Id. at *35. To the contrary, 2 Okla. Stat. § 10-9.7(B)(4) mandates
the “[p]oultry waste handling, treatment, management and removal shall not . . . create an
environmental or public health hazard” and “shall not result in the contamination of waters of the
state.” The AWMPs themselves contain language making it clear that, notwithstanding the 300
lbs/acre STP value, litter must be applied in a manner that will prevent pollution of State waters.
See, e.g., DJX3051 at p. 4 (Anderson AWMP providing that “[a]ll waste will be applied in
accordance with all state and local laws and ordinances” and that “[d]ischarge or runoff from
waste application sites is prohibited”); DJX0001 at p. 4 (Saunders AWMP providing that “[all]
waste will be applied in accordance with all state and local laws and ordinances” and that “[a]ny
one of the following conditions will prohibit the surface application of litter: . . . .(h) [a]reas where
there will be discharge from the application site”); DJX3480 at p. 4 (Reed AWMP providing
same)].

46

Now located at 66 C.J.S. Nuisances § 27 (2009), which provides that “a statutory sanction may not be
pleaded in justification of acts which by the general rules of law constitute nuisance, unless the acts
complained of are authorized by the express terms of the status …, or by the plainest and most necessary
implication from the powers expressly conferred, so that it can be fairly stated that the legislature
contemplated the doing of the very act which occasions the injury.”

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28.

The court therefore concludes that 50 Okla. Stat. § 4 does not immunize defendants

from liability for nuisance.
29.

The court further concludes that, while Code 590 establishes a maximum land

application rate of 300 lbs/acre STP, nothing in either Code 590 or ORPFOA requires that poultry
waste be applied at the maximum land application rate.
2. Federal Common Law Nuisance
30.

The Supreme Court has stated, “[w]hen we deal with air and water in their ambient

or interstate aspects, there is a federal common law, as Texas v. Pankey . . . recently held.” Illinois
v. City of Milwaukee, 406 U.S. 91, 103 (1972) (“Milwaukee I”); see also Texas v. Pankey, 441
F.2d 236, 240 (10th Cir. 1971) (holding “the ecological rights of a State in the improper
impairment of them from sources outside the State’s own territory, now would and should . . . be
held to be a matter having basis and standard in federal common law and so directly constituting a
question arising under the laws of the United States”).
31.

“[F]ederal courts may draw on state common law in shaping the applicable body of

federal common law.” Phoenix Mut. Life Ins. Co. v. Adams, 30 F.3d 554, 564 (4th Cir. 1994).
However, in fashioning federal common law, courts do not look to the law of a particular state, but
rather should apply common-law doctrines best suited to furthering the goals of the applicable
law. “Consequently, federal common law should be consistent across the circuits.” Id. (citations
omitted).
32.

“The elements of a claim based on the federal common law of nuisance are simply

that the defendant is carrying on an activity that is causing an injury or significant threat of injury
to some cognizable interest of the complainant.” Illinois v. City of Milwaukee, 599 F.2d 151, 165
(7th Cir. 1979) vacated on other grounds, City of Milwaukee v. Illinois and Michigan, 451 U.S.

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304, 348 (1981) (“Milwaukee II”); see also Connecticut v. American Elec. Power Co., Inc., 582
F.3d 309, 352 (2nd Cir. 2009) (adopting the Restatement (Second) of Torts § 821B(1) (1979)
definition of public nuisance as the standard for assessing whether the parties have stated a claim
under the federal common law of nuisance).
33.

The Restatement (Second) of Torts § 821B provides:

Circumstances that may sustain a holding that an interference with a public right is
unreasonable include the following: (a) whether the conduct involves a significant
interference with the public health, the public safety, the public peace, the public
comfort or the public convenience, (b) whether the conduct is proscribed by a
statue, ordinance or administrative regulation, or (c) whether the conduct is of a
continuing nature or has produced a permanent and long-lasting effect, and, as the
actor knows or has reason to know, has a significant effect upon the public right.
34.

Defendants maintain that the federal common law of nuisance has been displaced

by the Clean Water Act (a.k.a. Federal Water Pollution Control Act), 33 U.S.C. § 1251, et seq
(2006). In support of their argument, defendants rely primarily on Milwaukee II and Middlesex
Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 21-22 (1981).
35.

In Milwaukee II, the Supreme Court explained that “the question whether a

previously available common-law action has been displaced by federal statutory law involves an
assessment of the scope of the legislation and whether the scheme established by Congress
addresses the problem formerly governed by federal law.” 451 U.S. at 315 n 8. In United States
v. Texas, 507 U.S. 529 (1993), the Supreme Court further explained:
Just as longstanding is the principle that statutes which invade the common law . . .
are to be read with a presumption favoring the retention of long-established and
familiar principles except when a statutory purpose to the contrary is evident. In
such cases, Congress does not write upon a clean slate. In order to abrogate a
common-law principle, the statute must speak directly to the question addressed by
the common law.
Texas argues that this presumption favoring retention of existing law is appropriate
only with respect to state common law or federal maritime law. Although a
different standard applies when analyzing the effect of federal legislation on state

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law, there is no support in our cases for the proposition that the presumption has no
application to federal common law, or for a distinction between general federal
common law and federal maritime law in this regard. We agree with Texas that
Congress need not affirmatively proscribe the common-law doctrine at issue. But .
. . courts may take it as a given that Congress has legislated with an expectation
that the common law principle will apply except when a statutory purpose to the
contrary is evident.
Id. at 534 (citations omitted).
36.

In Milwaukee II, the court concluded that no federal common law remedy was

available to the states for water pollution because Congress, by passing the 1972 Amendments to
the Clean Water Act, had enacted “an all-encompassing program of water pollution regulation.”
Milwaukee II, 451 U.S. at 318. Shortly after Milwaukee II, the court restated this conclusion in
broader terms in Sea Clammers, holding that “the federal common law of nuisance in the area of
water pollution is entirely pre-empted by the more comprehensive scope” of the Clean Water Act.
Sea Clammers, 453 U.S. at 22.
37.

However, as the court pointed out in denying defendants’ Rule 52(c) motion on the

federal common law nuisance claim, Milwaukee II and Sea Clammers involved point source
discharges and dumping—acts that were either flatly prohibited under a regulatory scheme or
“prohibited unless subject to a duly issued permit.” Milwaukee II, 451 U.S. at 320. [TR at
9304:3-9311:7]. At issue here are nonpoint source discharges.47 In American Wildlands v.
Browner, 260 F.3d 1192, 1193-94 (10th Cir. 2001), the Tenth Circuit recognized that nonpoint
source discharges are not defined by the Clean Water Act and that “[r]ather than vest the EPA
with authority to control nonpoint sources through a permitting process, Congress required states
to develop water quality standards for intrastate waters.” Id. at 1194. The EPA’s authority is
47

One court has defined nonpoint source pollution as “nothing more than a pollution problem not
involving a discharge from a point source.” Nat’l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 166 n. 28 (D.C.
Cir. 1981).

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limited to reviewing the state water quality standards and determining whether they are consistent
with the Clean Water Act. Id. And in Defenders of Wildlife v. EPA, 415 F.3d 1121, 1124 (10th
Cir. 2005), the Tenth Circuit held that the state of New Mexico was not required to limit nonpoint
source pollutants so long as it continued to set water quality standards and list waters that failed to
meet those standards.
38.

In denying the defendants’ Rule 52(c) motion, this court concluded, based on

American Wildlands and Defenders of Wildlife, that the Clean Water Act does not directly or
comprehensively regulate nonpoint source pollution, and that “the defendants have not shown that
the 1987 amendments to the Clean Water Act legislate a remedy or actually regulate the nonpoint
source alleged nuisance at issue.” Doc. 2827, TR at 9311:2-5.
39.

The Supreme Court’s decision in American Elec. Power Co., Inc. v. Connecticut,

131 S. Ct. 2527 (2011), does not change the result. There, the Court held that “[t]he Clean Air Act
and the EPA actions it authorizes displace any federal common law right to seek abatement of
carbon-dioxide emissions from fossil-fuel fired power plants.” Id. at 2537. It reiterated that “[t]he
test for whether congressional legislation excludes the declaration of federal common law is
simply whether the statute speaks directly to the question at issue.” Id. (citations omitted).
Notably, American Elec. Power addressed only the Clean Air Act, and not the Clean Water Act.
40.

American Elec. Power does not alter the court’s ruling regarding displacement of

the federal common law nuisance claim. The Clean Water Act does not speak directly to
regulation of nonpoint pollution, and thus has not displaced the federal common law of nuisance.
41.

Oklahoma state law nuisance and federal common law nuisance are substantively

similar. See Cf. Nuveen Premium Income Mun. Fund 4, Inc. v. Morgan Keegan & Co., 200 F.
Supp. 2d 1313, 1316 n. 2 (W.D. Okla. 2002) (because “the laws of the various jurisdictions which

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have an arguable connection to the case were substantially similar . . . a conflict of laws
determination was not required”).
42.

Defendants assert the State’s nuisance and trespass claims also fail because they

cannot be held liable in Oklahoma for conduct occurring in Arkansas. The legal assertion is
incorrect. In Cameron v. Vandergriff, 13 S.W. 1092 (Ark. 1890), the Arkansas Supreme Court
held that defendants who conducted blasting operations in Indian Territory were liable for
negligence to a plaintiff for injuries suffered in Arkansas when he was hit by a flying rock from
the defendants’ operations. Id. at 1092-93. The court explained: “[t]he rock which occasioned the
injury was put in motion by the appellants in the Indian Territory; but, by the same force, its
motion was continued, and the injury done in this state. The cause of action arose here.” Id. at
1093. Further, in Young v. Masci, 289 U.S. 253 (1933), the Supreme Court rejected the notion
that imposition of liability in these circumstances violates an out-of-state defendant’s due process
rights. Id. at 258. The court stated:
A person who sets in motion in one state the means by which injury is inflicted in
another may, consistently with the due process clause, be made liable for that injury
whether the means employed be a responsible agent or an irresponsible instrument.
The cases are many in which a person acting outside the state may be held
responsible according to the law of the state for injurious consequences within it.
Thus, liability is commonly imposed under such circumstances for homicide, for
maintenance of a nuisance, for blasting operation and for negligent manufacture.
Id. at 258-59 (citations omitted). The court concludes defendants in this case can be held liable for
injuries suffered based on defendants’ or their growers’ conduct in Arkansas.
3. Analysis of Nuisance Claims
43.

The court has found that each defendant contributed to phosphorus loading of the

waters of the IRW. The Tyson Defendants, Cargill Defendants, and George’s Defendants all own
or manage poultry farms in the IRW; all defendants have—in the past—placed poultry with

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growers located in the IRW; and all defendants except Cal-Maine and Peterson continue to do so.
Each defendant has imported phosphorus-laden feed into the watershed. Poultry waste generated
at farms is typically land applied on fields in the IRW. And the overwhelming evidence
establishes that phosphorus from land-applied poultry waste runs off the fields in environmentally
significant quantities, causing injury to the waters of the IRW. Defendants have known or should
reasonably have known since at least the mid-to-late 1980s that phosphorus in the runoff of landapplied poultry waste injures the waters of the IRW. Yet they have continued to place their birds
in the IRW, to import feed, and to apply—and allow their growers to apply—poultry waste from
defendants’ birds to fields in the IRW. None of the defendants have made any provision for the
appropriate management of the poultry waste.
44.

The court concludes all defendants, by their conduct, have unreasonably interfered

with the public’s right to the use and enjoyment of the waters of the IRW in Oklahoma. The
State’s injuries from phosphorus concentrations in the rivers and streams of the IRW and Lake
Tenkiller are significant. Defendants are liable to the State for statutory public nuisance and for
federal common law nuisance with respect to their conduct in the Oklahoma portion of the IRW
and their conduct in the Arkansas portion of the IRW.
D. Trespass Claim
45.

Under Oklahoma law, a trespass involves an actual physical invasion of the real

estate of another without the permission of the person lawfully entitled to possession. Williamson
v. Fowler Toyota, Inc., 956 P.2d 858, 862 (Okla. 1998). “One is subject to liability to another for
trespass . . . if he intentionally (a) enters land in the possession of another, or causes a thing or a
third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which

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he is under a duty to remove.” Angier v. Mathews Exploration Corp., 905 P.2d 826, 829-30
(Okla. Civ. App. 1995) (quoting the Restatement (Second) of Torts § 158 (1965)).
46.

The threshold for establishing intentionality is set forth in Restatement (Second) of

Torts § 825:
An invasion of another’s interest in the use and enjoyment of land or an
interference with the public right, is intentional if the actor:
(a) acts for the purpose of causing it, or
(b) knows that it is resulting or is substantially certain to result from his conduct.
Comment c to § 825 provides that “[i]t is the knowledge that the actor has at the time he acts or
fails to act that determines whether the invasion resulting from his conduct is intentional or
unintentional.” And Comment d to § 825 states that “when the conduct is continued after the actor
knows that the invasion is resulting from it, further invasions are intentional.” Thus, the State
need not prove that defendants intended to cause the specific harm that resulted from their
conduct, but only that defendants knew or were substantially certain that applying poultry litter to
fields would result in an invasion of the IRW, and continued to do so in the face of that
knowledge. Such conduct is considered “intentional” for purposes of nuisance and trespass under
both Arkansas and Oklahoma law. See Robinson v. City of Ashdown, 783 S.W.2d 53, 56 (Ark.
1990) (“[w]hen one knows that an invasion of another’s interest in the use of enjoyment of land is
substantially certain to result from one’s conduct, the invasion is intentional.”); Cities Service Oil
Co. v. Merritt, 332 P.2d 677, 685 (Okla. 1958) (defendants’ salt water pollution of creek which in
turn polluted landowner’s well constituted a continuing nuisance for which defendants were
jointly and severally liable).

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47.

Here, the State’s claim for trespass is based upon its possessory property interest in

waters flowing in definite streams in the Oklahoma portion of the IRW, which, as held above, is a
sufficient interest to support the State’s claim.
48.

The court concludes—as it did with respect to the State’s nuisance claims—that

compliance by defendants and their growers with the AWMPs, NMPs, or the Arkansas Poultry
Growers Act does not immunize defendants against claims of trespass.
49.

The court concludes the State has proven by a preponderance of evidence that

defendants have trespassed on the waters of the IRW. The Tyson Defendants, Cargill Defendants
and George’s Defendants all own or manage poultry farms in the IRW. All defendants have—in
the past—placed poultry with growers located in the IRW; and all except Cal-Maine and Peterson
continue to do so. Poultry waste generated at the poultry farms is typically land applied on fields
in the IRW. And the overwhelming evidence establishes that phosphorus from land-applied
poultry waste runs off the fields in environmentally significant quantities, causing injury to the
waters of the IRW. Defendants have been aware since at least the mid-to-late 1980s that
phosphorus in the runoff of land-applied poultry waste injures the waters of the IRW, and yet they
have continued to apply—and allow growers to apply—poultry waste from defendants’ birds to
fields in the IRW. Defendants’ actions constitute trespass in violation of Oklahoma law.
50.

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. The State’s injuries from phosphorus concentrations in
the rivers and streams of the IRW and Lake Tenkiller are significant.
51.

All defendants are vicariously liable for poultry waste causing phosphorus to

physically invade the rivers and streams of the Oklahoma portion of the IRW and Lake Tenkiller.

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Further, the Tyson Defendants, Cargill Defendants and George’s Defendants are directly liable for
poultry waste from poultry operations they own or manage.
E. Statutory Violation Claims
52.

The State contends defendants are liable for violations of 27A Okla. Stat. § 2-6-105

and 2 Okla. Stat. § 2-18.1.
53.

As limited by the court in previous rulings, the State’s claim for violations of 27A

Okla. Stat. § 2-6-105, pertains to conduct occurring in Oklahoma. Arkansas-based conduct cannot
give rise to liability under 27A Okla. Stat. § 2-6-105.
54.

The State seeks both injunctive relief and penalties under its 27A Okla. Stat.

§ 2-6-105 claim. See 27A Okla. Stat. § 2-3-504(A)(2) and (4).48
55.

27A Okla. Stat. § 2-3-504 became effective on July 1, 1993, and the parties agree

that the State’s claims for penalties are limited to conduct occurring after that date. The State
contends defendants are both directly and vicariously liable for penalties for any field having an
STP value of greater than 65 lbs/acre, as reflected by ODAFF records, from the date of each
recorded violation to the present, at a rate of $10,000 per day. See Doc. 2873 at 344, State’s
Proposed FF/CL, CL ¶ 137.
56.

27A Okla. Stat. § 2-6-105 provides:

A. It shall be unlawful for any person to cause pollution of any waters of the state
or to place or cause to be placed any wastes in a location where they are likely to
cause pollution of any air, land or waters of the state. Any such action is hereby
declared to be a public nuisance.
B. If the Executive Director finds that any of the air, land or waters of the state
have been, or are being, polluted, the Executive Director shall make an order
48

Under 27A Okla. Stat. § 2-3-504(A)(2), a violator may be punished by assessment of a civil penalty of
not more than $10,000 per day of noncompliance with the Oklahoma Environmental Quality Code. Under
27A Okla. Stat. § 2-3-504(A)(4), a violator may be subject to injunctive relief to prevent a violation of, or
to compel a compliance with, any of the provisions of the Oklahoma Environmental Quality Code.

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requiring such pollution to cease within a reasonable time, or requiring such
manner of treatment or of disposition of the sewage or other polluting material as
may in his judgment be necessary to prevent further pollution. It shall be the duty
of the person to whom such an order is directed to fully comply with the order of
the Executive Director.
57.

27A Okla. Stat. § 2-1-102(12) defines “pollution” as

the presence in the environment of any substance, contaminant or pollutant, or any
other alteration of the physical, chemical or biological properties of the
environment or the release of any liquid, gaseous or solid substance into the
environment in quantities which are or will likely create a nuisance or which render
or will likely render the environment harmful or detrimental or injurious to public
health, safety or welfare, or to domestic, commercial, industrial, agricultural,
recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds,
fish or other aquatic life, or to property . . . .
58.

27A Okla. Stat. § 2-6-102 sets forth the policy and purpose of § 2-6-105 as follows:

Whereas the pollution of the waters of this state constitutes a menace to public
health and welfare, creates public nuisances, is harmful to wildlife, fish and aquatic
life, and impairs domestic, agricultural, industrial, recreational and other legitimate
beneficial uses of water, and whereas the problem of water pollution of this state is
closely related to the problem of water pollution in adjoining states, it is hereby
declared to be the public policy of this state to conserve the waters of the state and
to protect, maintain and improve the quality thereof for public water supplies, for
the propagation of wildlife, fish and aquatic life and for domestic, agricultural,
industrial, recreational and other legitimate beneficial uses; to provide that no
waste or pollutant be discharged into any waters of the state or otherwise placed in
a location likely to affect such waters without first being given the degree of
treatment or taking such other measures as necessary to protect the legitimate
beneficial uses of such waters; to provide for the prevention, abatement and control
of new or existing water pollution; and to cooperate with other agencies of this
state, agencies of other states and the federal government in carrying out these
objectives.
(emphasis added).
59.

ODEQ enforcement action pursuant to 27A Okla. Stat. § 2-6-105(B) is not a

prerequisite to enforcement of the statute. See Burlington Northern and Santa Fe Ry. Co. v.
Grant, 505 F.3d 1013, 1024-25 (10th Cir. 2007).

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60.

Defendants are both directly and vicariously liable under 27A Okla. Stat. § 2-6-

105(A) for the same reasons they are liable for common law trespass. They have structured and
conducted their business in the Oklahoma portion of the IRW in a manner that causes pollution of
the waters of the IRW. Thus, they are directly liable for “caus[ing] pollution of . . . waters of the
state” and for “caus[ing] to be placed . . . waste[s] in a location where they are likely to cause
pollution.” 27A Okla. Stat. § 2-6-105(A).49 Each defendant has consciously concentrated a
segment of its poultry operations in the Oklahoma portion of the environmentally-sensitive IRW;
placed large numbers of its birds in this concentrated area; and imported enormous amounts of
phosphorus-laden feed into the area. Their birds annually generate hundreds of tons of poultry
waste containing phosphorus the defendants have brought into the IRW. Further, despite
knowledge that the majority of the poultry waste will be land applied in close proximity to where
it is generated, the defendants have not made provisions for the appropriate management of the
waste.
61.

As a result, poultry waste continues to be applied to the phosphorus-saturated fields

in the Oklahoma portion of the IRW, where an environmentally significant portion of the
phosphorus contained in the waste runs off the fields and enters the waters of the IRW. Further,
phosphorus from land-applied poultry waste that enters the waters of the IRW constitutes
“pollution” for the purposes of Okla. Stat. § 2-6-105. See 27A Okla. Stat. § 2-1-102(12). In sum,
through their own independent conduct, defendants have “cause[d] pollution of . . . waters of the
state.” 27A Okla. Stat. § 2-6-105(A). Similarly, defendants are also directly liable under 27A

49

The State seeks to hold all defendants except Peterson and Cal-Maine liable based on their past and
present conduct. It seeks to hold Peterson and Cal-Maine, who have exited the IRW, liable for past conduct
only.

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Okla. Stat. § 2-6-105(A) because they have “cause[d] to be placed . . . wastes in a location where
they are likely to cause pollution of . . . waters of the state.”
62.

Under the Restatement (Second) of Torts § 427B, defendants are vicariously liable

for violation of 27A Okla. Stat. § 2-6-105(A), for the conduct of their growers.
63.

For the reasons set forth in these Findings and Conclusions, the court concludes

that the State is entitled to injunctive relief for each defendant’s violations of 27A Okla. Stat. § 26-105(A).
64.

The State also seeks imposition of civil penalties for each defendant’s violation of

27A Okla. Stat. § 2-6-105(A). Civil penalties are authorized by 27A Okla. Stat. § 2-3-504, which
provides in pertinent part:
(A) Except as otherwise specifically provided by law, any person who violates any
provisions of, or who fails to perform any duty imposed by, the Oklahoma
Environmental Quality Code . . . .
* * *
(2) May be punished in civil proceedings in district court by assessment of a
civil penalty of not more than Ten Thousand Dollars ($10,000.00) for each
violation . . . .
* * *
(C) Any person assessed an administrative or civil penalty shall be required to pay,
in addition to such penalty amount and interest thereon, attorneys fees and costs
associated with the collection of such penalties.
(D) For purposes of this section, each day or party of a day upon which such
violation occurs shall constitute a separate violation.
* * *
(H) In determining the amount of a civil penalty the court shall consider such
factors as the nature, circumstances and gravity of the violation or violations, the
economic benefit, if any, resulting to the defendant from the violation, the history
of such violations, any good faith efforts to comply with the applicable
requirements, the economic impact of the penalty on the defendant, the defendant’s
degree of culpability, and such other matters as justice may require.
65.

The State asserts penalties should be imposed for all instances in which a

defendant’s grower applied poultry waste on a field with STP levels in excess of 65 lbs/acre.

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66.

The State also seeks injunctive relief pursuant to 2 Okla. Stat. § 2-18.1, which

provides:
A. It shall be unlawful and a violation of the Oklahoma Agricultural Code for any
person to cause pollution of any air, land or waters of the state by persons which
are subject to the jurisdiction of the Oklahoma Department of Agriculture, Food,
and Forestry pursuant to the Oklahoma Environmental Quality Act.
B. If the State Board of Agriculture finds that any of the air, land, or waters of the
state which are subject to the jurisdiction of the Oklahoma Department of
Agriculture, Food, and Forestry pursuant to the Oklahoma Environmental Quality
Act have been or are being polluted, the Board shall make an order requiring that
the pollution cease within a time period determined by the Department, or require a
manner of treatment or of disposition of the waste or other polluting material as
may in the judgment of the Board be necessary to prevent further pollution. In
addition, the Board may assess an administrative penalty pursuant to Section 2-18
of this title. The person to whom the order is directed shall fully comply with the
order of the Board and pay any fine and costs assessed.
67.

ODEQ enforcement action pursuant to 2 Okla. Stat. § 2-18.1(B) is not a

prerequisite to enforcement of Section A of the statute. See Burlington Northern, 505 F.3d at
1024-25.
68.

Under 2 Okla. Stat. § 1-3, a “person” is “the state, any municipality, political

subdivision, institution, individual, public or private corporation, partnership, association, firm,
company, public trust, joint-stock company, . . . or any other legal entity or an agent, employee,
representative, assignee or successor thereof.” Each defendant, as a company or private
corporation, fits within this definition.
69.

With respect to a claim brought pursuant to 2 Okla. Stat. § 2-18.1, 2 Okla. Stat.

§ 2-16(c) provides, in pertinent part, that “[t]he court shall have jurisdiction to determine the
action [to redress or restrain a violation of the Oklahoma Agricultural Code] and to grant the
necessary or appropriate relief, including but not limited to mandatory or prohibitive injunctive
relief . . . .”

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70.

Under 27A Okla. Stat. § 1-3-101(D)(1)(a), ODAFF has environmental

responsibility over “nonpoint source runoff from agricultural crop production, agricultural
services, livestock production, silviculture, feed yards, livestock markets and animal waste.”
71.

By its terms, 2 Okla. Stat. § 2-18.1 is a statute of general application addressing

pollution from all entities that fall under ODAFF’s jurisdiction and is not limited only to the
actions of poultry growers. Defendants fall under the broad sweep of this statute as persons under
the jurisdiction of ODAFF. See, e.g., 2 Okla. Stat. § 10-9.5(G) (“No integrator shall enter into any
contract with an operator of a poultry feeding operation who is not in compliance with the
requirements of subsection F of this section.”). Accordingly, the court concludes that each
defendant is a person subject to ODAFF’s jurisdiction pursuant to the Oklahoma Environmental
Quality Act.
72.

The State’s claim for violations of 2 Okla. Stat. § 2-18.1 pertains only to conduct

occurring in Oklahoma.
73.

The liability provision of 2 Okla. Stat. § 2-18.1 prohibiting a “person” from

“caus[ing] pollution of any . . . waters of the state” is substantively identical to 27A Okla. Stat.
§ 2-6-105(A)’s prohibition against any “caus[ing] pollution of any waters of the state.” Based on
the reasoning contained in Conclusion of Law ##60-61 above, the court concludes each defendant
is liable, both directly and vicariously, under 2 Okla. Stat. § 2-18.1.
F. Affirmative Defenses
74.

Defendants have asserted a number of affirmative defenses. The court has

addressed defendants’ arguments concerning pre-emption of federal common law above. Other
affirmative defenses are addressed below.

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75.

Defendants contend the Commerce Clause constrains this court from applying

Oklahoma common law to enjoin poultry waste application in the Arkansas portion of the IRW.
The Commerce Clause provides that “Congress shall have power . . . [t]o regulate Commerce . . .
among the several States.” U.S. Const., art. I, § 8, cl. 3. “The Commerce Clause . . . even without
implementing legislation by Congress is a limitation upon the power of the States.” Edgar v. Mite
Corp., 457 U.S. 624, 640 (1982) (citations omitted). Not every exercise of state power with some
impact on interstate commerce is invalid. Id. In this case, the State relies on Oklahoma statutory
nuisance, Federal common law nuisance, and Oklahoma common law trespass in an attempt to
enjoin activity by defendants that is polluting the waters of the Oklahoma portion of the IRW.
The State does not seek to directly regulate interstate commerce. Moreover, the burden imposed
an interstate commerce by applying Oklahoma common law of trespass and Federal common law
nuisance to enjoin poultry waste in the Arkansas portion of the IRW is not excessive in light of the
interests of the law of trespass purports to further.
76.

Defendants also argue the State’s requested relief violates principles of federalism.

They contend that allowing Oklahoma to apply its own law through this court to enjoin conduct in
Arkansas that is authorized under Arkansas statute and regulations would impermissibly invade
Arkansas’ prerogative to legislate within its own borders. “A basic principle of federalism is that
each State may make its own reasoned judgment about what conduct is permitted or proscribed
within its borders, and each State alone can determine what measure of punishment, if any, to
impose on a defendant who acts within its jurisdiction.” State Farm Mut. Auto. Ins. Co. v.
Campbell, 538 U.S. 408, 422 (2003). But, the cases defendants rely upon involve challenges to
punitive damage awards based on out-of-state conduct, and the courts expressed concern about the
due process implications of punishing defendants for conduct that was not illegal in their home

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state. Id.; BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575-76 (1996). In contrast, the relief
sought in this case is not penal in nature, but instead aimed at redressing tortious conduct by
defendants which has caused and is continuing to cause injury in Oklahoma. Courts routinely
handle claims involving allegations of nuisance and trespass. See, e.g., Herd, 2003 U.S. Dist.
LEXIS 27381 at *28.
77.

Indeed, it is not uncommon for courts to apply the law of the state where injury to

the plaintiff occurred as a result of defendant’s tortious conduct in another state. See Conclusion
of Law #42; see also Gentry v. Jett, 173 F. Supp. 722, 734 (W.D. Ark. 1959) (Oklahoma law
applied to injured truck driver’s claim that defendant truck owner in Arkansas negligently installed
defective breaks in truck because truck driver’s injuries occurred in collision in Oklahoma); Otey
v. Midland Valley R. Co., 197 P. 203, 204 (Kansas 1921) (defendant railroad company was liable
to plaintiff for property damage in Kansas caused when sparks from fire locomotive engine in
Oklahoma blew across state line onto plaintiff’s property in Kansas); Dallas v. Whitney, 188 S.E.
766, 767 (W.Va. 1936) (injury to plaintiff’s storeroom in Ohio caused by defendant’s blasting
activity in West Virginia was construed to state a claim for trespass under Ohio law); Brinkley &
West, Inc. v. Foremost Ins. Co., 331 F. Supp. 475, 478 (E.D. La. 1971) (Louisiana law applied to
Louisiana plaintiff’s claim for alleged piracy of plaintiff’s subagents by defendant in other states,
because injury to plaintiff occurred in Louisiana).
78.

In Young v. Masci, 289 U.S. 253 (1933), the Supreme Court rejected the notion that

imposition of liability in these circumstances violates an out-of-state defendant’s due process
rights. The court stated:
A person who sets in motion in one state the means by which injury is inflicted in
another may, consistently with the due process clause, be made liable for that injury
whether the means employed be a responsible agent or an irresponsible instrument.
The cases are many in which the person acting outside the state may be held

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responsible according to the law of the state for injurious consequences within it.
Thus, liability is commonly imposed under such circumstances for homicide, for
maintenance of a nuisance, for blasting operation and for negligent manufacture.
Id. at 258-59 (citations omitted).
79.

Defendants also contend the Arkansas River Basin Compact preempts or displaces

the State’s tort claim. The court disagrees. The compact states in pertinent part:
That States of Arkansas and Oklahoma mutually agree to:
* * *
Utilize the provisions of all federal and state water pollution laws and to recognize
such water quality standards as may be now or hereafter established under the
Federal Water Pollution Control Act in the resolution of any pollution problems
affecting the waters of the Arkansas River Basin.
82 Okla. Stat. § 1421, Art. VII(E). Moreover, the stated purpose of the compact is “[t]o encourage
the maintenance of an active pollution abatement program in each of the two states and to seek the
further reduction of both natural and man-made pollution in the waters of the Arkansas River
Basin.” 82 Okla. Stat. § 1421, Art. I (D). Finally, the compact expressly disclaims any
requirement that the State proceed before the Commission prior to asserting its rights in court:
[T]he making of findings, recommendations, or reports by the Commission shall
not be a condition precedent to instituting or maintaining any action or proceeding
of any kind by a signatory state in any court, or before any tribunal, agency or
officer, for the protection of any right under this Compact or for the enforcement of
any of its provision[s].
82 Okla. Stat. § 1421 Art. IX(A)(8).
80.

The court concludes defendants in this case may be enjoined pursuant to both

Federal common law and Oklahoma statutory nuisance from continuing nuisance suffered by
plaintiff in Oklahoma based on conduct by defendants or their growers. Further, the defendants
may be enjoined pursuant to Oklahoma common law trespass based on conduct by defendants or
their growers and the actual physical invasion of the plaintiff’s property in Oklahoma.

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81.

Compliance by Arkansas growers with Arkansas laws and regulations does not

immunize defendants, as it is axiomatic that Arkansas cannot enact legislation permitting a
continuing nuisance and/or trespass in Oklahoma.
G. Injunctive Relief
82.

A court should issue an injunction “only where the intervention of a court of equity

is essential in order effectually to protect property rights against injuries otherwise irremediable.”
Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).
83.

“For a party to obtain a permanent injunction, it must prove (1) actual success on

the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs
the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will
not adversely affect the public interest.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d
818, 822 (10th Cir. 2007) (citations omitted).
84.

With respect to the State’s claims under 27A Okla. Stat. § 2-6-105(A) and 2 Okla.

Stat. § 2-18.1, the court is statutorily authorized to grant injunctive relief. See 27A Okla. Stat. § 23-504(A)(4); 27A Okla. Stat. § 2-3-504(F)(2); 2 Okla. Stat. § 2-16(B) and (C).
85.

The State seeks an injunction:


prohibiting defendants from allowing poultry waste generated by birds they own,
lease or control to be land-applied in the IRW on fields having an STP in excess of
65 lbs/acre based on a Mehlich III six inch sample;



requiring that land application in the IRW be conducted in accordance with the 65
lbs/acre limit, as well as an Animal Waste Management plan or Nutrient
Management Plan;



requiring defendants to remove from the IRW and appropriately manage, at
defendants’ expense, all poultry waste generated by birds they own, lease or control
that cannot be land-applied in the IRW under this standard;



prohibiting defendants from land-applying poultry waste removed from the IRW on
any field having an STP in excess of 65 lbs/acre in watersheds located in whole or

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in part in Oklahoma that are designated nutrient surplus areas, nutrient limited
watersheds or nutrient vulnerable groundwater areas;

86.



requiring remediation of the IRW, at defendants’ expense, the exact nature of
which would be determined following an investigation of remedial alternatives,
also to be funded by defendants; and



reporting, monitoring and auditing of defendants’ performance of their obligations
under the injunction sought from the court, as well as water quality monitoring to
assess the impact of relief ordered in this case.
Defendants assert that the appropriate remedy is development of a Total Maximum

Daily Load (“TMDL”) pursuant to Section 303(d) of the CWA, 33 U.S.C. § 1313(d)(1)(C) (2000).
Section 303(d) of the CWA requires states to (1) identify those waters within its boundaries for
which the effluent limitations required by 33 U.S.C. § 1311(b)(1) parts (A) and (B)50 are not
stringent enough, and (2) implement any water quality standard applicable to such waters.
Effluent limitations under the CWA apply only to point sources of pollution; they do not address
nonpoint sources of pollution such as runoff from land applied animal wastes at issue here. See,
e.g., Pronsolino v. Nastri, 291 F.3d 1123, 1125-26 (9th Cir. 2002) (“Effluent limitations pertain
only to point sources of pollution; point sources of pollution are those from a discrete conveyance,
such as a pipe or tunnel. Nonpoint sources of pollution are non-discrete sources; sediment run-off
from timber harvesting, for example derives from a nonpoint source.”).
87.

For waters identified as impaired on the CWA section 303(d) list, a state must

determine the TMDL for pollutants at a level necessary to achieve the applicable water quality
standards with seasonal variations and a margin of safety which takes into account any lack of
knowledge concerning the relationship between effluent limitations and water quality. See 33
U.S.C. § 1313(D)(1)(C). “A TMDL defines the specified maximum amount of a pollutant which

50

33 U.S.C. § 1311(B)(1)(A) and (B) address effluent limitations for point sources other than publicly
owned treatment works and publicly owned treatment works, respectively.

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can be discharged or ‘loaded’ into the waters at issue from all combined sources.”
Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1520 (9th Cir. 1995). The implementing
regulation divides the loading capacity of receiving water between nonpoint and point sources.
“Load allocations” are calculated for nonpoint sources and “wasteload allocations” are calculated
for point sources. See 40 C.F.R. § 130.2(g) and (h). “Thus a TMDL represents the cumulative
total of all ‘load allocations’ which are in turn best estimates of the discrete loading attributed to
nonpoint sources, natural background sources, and individual wasteload allocations (‘WLAs’),
that is, specific portions of the total load allocated to individual point sources.” Dioxin, 57 F.3d at
1520. The CWA directly mandates technological controls to limit the pollution point sources may
discharge into a body of water. However, it “provides no direct mechanism to control nonpoint
source pollution”; rather, it “uses the ‘threat and promise’ of federal grants to the states to
accomplish this task, thereby recogniz[ing], preserv[ing], and protect[ing] the primary
responsibilities and rights of the States to prevent, reduce, and eliminate pollution, [and] to plan
the development and use . . . of land and water resources” in accordance with Section 101(b) of
the CWA. Pronsolino, 291 F.3d 1123, 1126-27 (citations omitted).
88.

Section 303(d) is part of the CWA’s “carrot-and-stick approach to attaining

acceptable water quality without direct federal regulation of nonpoint sources of pollution.” Id. at
1127. States are required to subject a 303(d) list of impaired waters and any associated TMDLs to
the EPA for approval or disapproval. See 33 U.S.C. § 1313(d)(2). Approved TMDLs must be
incorporated into the state’s continuing planning process that the EPA must also approve. Id.
“The upshot of this intricate scheme is that the CWA leaves to the states the responsibility of
developing plans to achieve water quality standards if the statutorily-mandated point source
controls will not alone suffice, while providing federal funding to aid in the implementation of the

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state plans.” Pronsolino, 291 F.3d at 1128. Thus, the CWA, with its TMDL provisions, does not
in and of itself, require states to reduce nonpoint source pollution loads as a result of a TMDL.
89.

Oklahoma law requires state environmental agencies (including the ODAFF) to

utilize and enforce Oklahoma Water Quality Standards established by the OWRB. 27A Okla.
Stat. § 1-1-202(A)(2). The agencies, with the help of the OWRB, are required to develop Water
Quality Standards Implementation Plans (“WQSIPs”) aimed at restoring protecting and
maintaining water quality. 27A Okla. Stat. § 1-1-202(B)(1). Each WQSIP is required, inter alia,
to “detail the manner in which the agency will comply with mandated statewide requirements
affecting water quality developed by other state environmental agencies including, but not limited
to, [TMDL] development, water discharge permit activities and nonpoint source pollution
prevention programs.” 27A Okla. Stat. § 1-1-202(B)(3)(f). Notably, however, the statute requires
only “development” of WQSIPs—and not “implementation” or “enforcement” of WQSIPs. 27A
Okla. Stat. § 1-1-202(A). ODAFF’s WQSIP for its animal waste jurisdictional area is embodied
in a regulation whose sole reference to TMDLs states: “ODAFF will participate in the TMDL
process as resources permit . . . .” Okla. Admin. Code § 35:45-1-7(f). This falls far short of any
legal authority or duty to enforce any load allocation identified in a TMDL against defendants.51
90.

The court concludes that, while ODAFF has environmental enforcement tools at its

disposal—including injunctions and fines for violations of the act (see, e.g., 2 Okla. Stat.
§ 10-9.11), state law does not require that ODAFF use them to enforce load allocations identified
in a TMDL under the CWA, nor does it require ODAFF to enforce nonpoint source reductions as
might be called for in a TMDL.

51

Ironically, as discussed in Section F.1. above, the ORPFOA prohibits any discharge or runoff of poultry
waste from the application site. 2 Okla. Stat. § 10-9.7(C)(6)(c).

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91.

The inherent limitations of TMDLs with respect to nonpoint source loadings, the

uncertainty about whether and when a TMDL for the IRW will be implemented, the limited
enforcement authority of both the EPA and the State to use TMDLs to reduce load allocations
originating in Arkansas all weigh against reliance on TMDLs to reduce phosphorus loading of the
waters of the IRW.
Irreparable Harm
92.

A plaintiff seeking injunctive relief must demonstrate irreparable harm in the

absence of express legislative intent to the contrary. Weinberger, 456 U.S. at 312; Mical
Commc’ns, Inc. v. Sprint Telemedia, Inc., 1 F.3d 1031, 1035 (10th Cir. 1993).
93.

The court concludes that the actual and ongoing injury to the waters of the IRW

constitutes irreparable harm and warrants injunctive relief.
94.

Possession of an AWMP is a prerequisite to any land application of poultry waste

in the Oklahoma portion of the IRW. 2 Okla. Stat. § 10-9-19a. Further, any application of poultry
waste in the Oklahoma portion of the IRW must not “create an environmental or a public health
hazard” or “result in the contamination of waters of the state.” 2 Okla. Stat. § 10-9.7(B)(4)(a) and
(B)(4)(b). The AWMPs themselves make it clear that any land application poultry waste is
subject to this overarching principle. See, i.e., DJX0001 at p. 4 (Saunders AWMP prohibiting
surface application of litter in “[a]reas where there will be discharge from the application site”).
95.

Thus, although Code 590 of ORPFOA sets a maximum rate of 300 lbs/acre STP for

the land application of poultry waste, an applicator must ensure that no environmental hazards or

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contamination are created by the poultry waste application. 2 Okla. Stat. § 10-9.7(B)(4)(a) and
(B)(4)(b).52
96.

This court has concluded that defendants’ conduct in both Oklahoma and Arkansas

constitutes a public nuisance and a trespass on the waters in the Oklahoma portion of the IRW.
Although Arkansas has a regulatory scheme pertaining to the management of poultry waste, that
scheme must yield to the law set forth in Cameron and its progeny. Moreover, it is axiomatic that
Arkansas cannot “permit” nonpoint source pollution of Oklahoma’s waters.
IV. Conclusion
For the foregoing reasons, the court finds in favor of the State and against defendants on
the State’s claims of statutory public nuisance, federal common law nuisance, trespass, for
violation of 27A Okla. Stat. § 2-6-105, and for violation of 2 Okla. Stat. § 2-18.1.
The Court Clerk shall substitute the current relators pursuant to Fed. R. Civ. P. 25(d), as set
forth in footnote 1 above.
The Environmental Protection Agency has recognized that nutrient pollution caused by
phosphorus is one of America’s most widespread, costly, and challenging environmental
problems. The parties are hereby directed to meet and attempt to reach an agreement with regard
to remedies to be imposed in this action. On or before March 17, 2023, they shall advise the court
whether they have been able to do so. The agreed remedies, if any, must be approved by the court.
In the event the parties are unable to reach an accord, the court shall enter judgment.

52

Under Oklahoma law, courts must construe legislative acts “in such a manner as to reconcile the
different provisions and render them consistent and harmonious, and give intelligent effect to each. Thus,
where parts of a statute reasonably are susceptible of a construction which will give effect to both, without
doing violence to either, such construction should be adopted.” Oklahoma Indep. Petroleum Ass’n v
Youngker, 769 P.2d 109, 114 (Okla. 1988) (citation and quotations omitted).

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ENTERED this 18th day of January, 2023.

214