CAFOs: Five Essential Tools for Local Regulation

Vol. 35 No. 4

By

Ariel R. Kapplan is a 2013 J.D. candidate from the University of Connecticut School of Law. She is experienced in agriculture as both a dairy goat farmer and an equestrian.


Concentrated Animal Feed Operations (CAFOs), as defined by the Environmental Protection Agency, are lots or facilities where animals are confined for 45 or more days of the year and vegetation is not sustained during the normal growing season. 1 Both federal and state governments regulate CAFOs. Local governments, however, rarely pass regulations to protect their communities. Yet, a CAFO community endures the highest burden.

CAFOs place heavy burdens on their neighbors. Their communities are often the victims of disturbing odors, sights, and traffic patterns. CAFOs result in soil mismanagement and water contamination. 2 Manure is frequently stored in large lagoons, which may contaminate surface and groundwater. An Iowa study noted that ammonia levels in the air around many CAFOs exceeds health standards. 3 and the uses typically increase vehicle traffic as well. The cumulative result is increased nuisance complaints and decreased property values near CAFOs. 4 This article provides five tools for effective local regulation of these high-risk neighbors.

1. Be Aware of State Right-to-Farm Laws and Their Implications

The first and arguably most essential tool is the authority to draft a CAFO ordinance. Before expending the time and resources to enact a CAFO ordinance, well-prepared communities should have a strong understanding of their state’s right-to-farm law. These state laws protect various forms of agriculture from nuisance suits and sometimes from certain types of local regulations as well. 5

Right-to-farm laws do not, however, preempt all ordinances regulating agricultural facilities, 6 and some laws expressly waive CAFO immunity. 7 These differences reflect an ongoing debate as to whether CAFOs should be categorized as agricultural or industrial uses.

In addition, some states have CAFO exceptions within their right-to-farm laws 8 that may apply to all CAFOs or only to certain CAFOs. 9 Effective local regulation of CAFOs depends on a solid understanding of state right-to-farm laws.

2. Define CAFO in a Manner That Is Most Advantageous to the Purpose of the Ordinance

The second tool available to a municipality is the ability to define a CAFO in a manner that addresses the goals of the municipality. CAFO definitions are as varied as the jurisdictions that define them. 10 A CAFO should always be defined in a manner that accurately addresses each municipality’s goals. One town, for example, may wish to impose many barriers against CAFOs in an effort to keep them from locating within the town. On the other hand, another municipality may want to provide safe harbor to CAFOs in an effort to stimulate its economy. Each of these towns should define a CAFO in a manner that best addresses its goals.

The key to addressing a town’s goals is a definition’s breadth. When CAFO is defined narrowly, fewer facilities are regulated. Nez Perce County, Idaho’s definition, for example, will only regulate facilities that confine at least 1,000 animal units for a minimum of 90 consecutive days. 11 By defining CAFO in such a manner Nez Perce County could effectively allow an industrial agricultural operation of perhaps 3,000 animals that are confined for 80 consecutive days to evade local regulation. Alternatively, a municipality wishing to keep CAFOs from locating within its boundaries should apply a broad definition. Broad definitions allow municipalities to regulate many facilities. Schuyler County, Missouri, for instance, defines a CAFO as a facility where animals are “maintained for a total of forty-five days” over the course of the year. 12 That minimum period need not occur over consecutive days and is therefore applicable to more CAFOs.

It is important to consider the goals of an ordinance that pertains to CAFOs. It is equally important to recognize the impacts a definition has on non-industrial agricultural operations. A broad definition, for instance, can include many facilities that resemble the traditional farm. A municipality must consider its stance on all agricultural uses and the burdens it wishes to impose on the traditional farm when selecting a definition. Schuyler County, for example, requires that the animal confinement area be less than 50% vegetated to qualify as a CAFO. 13 This provision of the definition recognizes the difference between industrial agriculture, in which animals are so confined that vegetation cannot grow, and the bucolic scenes of traditional agricultural.

3. Implement a Permitting System

A permitting system is the third tool that can be applied to regulate CAFOs. A permitting process is likely to be upheld so long its regulations are more stringent than state and federal laws. 14 Municipalities use a permitting system to allow for review during the siting process and for continued influence after the initial permit. 15 Permitting systems outline both the procedural and substantive requirements necessary to establish a CAFO within the municipality 16 and can require periodic review by the town to enforce regulations for the continuing operation of the facility.

Gooding County, Idaho, has one such permitting process. 17 An initial permit requires the applicant to submit a site plan, a vicinity map to water sources, a written strategy to mitigate vermin, an odor management plan, and many other documents. 18 Then, in the event a facility wishes to house additional animals, it must submit another application to expand the permit. 19 A similar requirement exists for facilities that wish to expand their manure storage system. 20

4. Implement a Site Scoring System

The fourth tool, often effective in combination with a permitting system, is a site scoring system. 21 This system creates a schema that allots points to different desirable attributes of a location. 22 Site scoring systems are advantageous because they allow all stakeholders to consider objective criteria. 23 A facility can achieve a qualifying score in numerous ways, and the CAFO operator can minimize undesirable effects by implementing counteractive measures. 24

Indiana’s Site Scoring System, for example, requires a minimum score of 240 points. 25 An operator seeking to open a CAFO in an undesirable location would receive fewer points. 26 The CAFO operator, however, could implement counteractive measures that allow it to acquire a qualifying number of points. These measures include more stringent odor control, a letter of support from 51% of the community, or even adding a truck turnaround. 27

Ultimately, the site scoring system provides an objective measure for meeting the goals of the ordinance. It allows for CAFO operators, citizens, and members of the municipal government to be informed of the requirements for a CAFO to be sited, and this type of transparency provides the opportunity for the community to engage in informed discussion as to the siting process.

5. Require Facilities to Post a Bond

The fifth tool for local CAFO regulation is the requirement of a bond before establishing of a CAFO. CAFOs, as previously mentioned, pose a high risk to the communities in which they are located. 28 Environmental concerns include manure spills, improper disposal of deceased animals, and excessive application of pesticides. 29 Furthermore, abandoned facilities are both a threat to a community’s aesthetic appeal and general safety. An abandoned CAFO may require the municipality to secure manure lagoons, dispose of large quantities of pesticides, maintain the premises, and, perhaps, relocate animals.

To protect the community, municipalities can require CAFOs to post a bond. Without a bond, the municipality risks a facility that erodes the economic and environmental value of the community. Clay County, South Dakota, for example, requires a bond that provides for “sufficient clean up if environmental contamination occurs and to ensure proper closure of confinement operation.” 30 Such a clause alleviates some risk. In the event of closure, the bond provides assurance that the facility would be properly shut down. Some local governments only require bonds for manure storage systems, 31 providing for proper cleanup of spills. Bonds, regardless of how extensive their coverage is, provide towns and counties with some degree of protection against many CAFO dangers.

Conclusion

CAFOs can be destructive forces. Odors, flies, increased traffic, and water contamination are all dangers attributed to CAFOs. Municipalities are best protected when they use all the regulatory tools available to them. Local governments must evaluate state law, determine their regulatory goals, define “CAFO” advantageously, implement permitting and siting systems, and require a bond, all the while considering the effects of their CAFO ordinances on local agriculture.

Endnotes

1. 40 C.F.R. § 122.23(b)(1) (2011).

2. Tory H. Lewis, Managing Manure: Using Good Neighbor Agreements to Regulate Pollution from Agricultural Production, 61 Vand. L. Rev. 1555 (2008).

3. Ryan Teel, Not In My Neighborhood: The Fight Against Large-Scale Animal Feeding Operations in Rural Iowa, Preemptive Tactics, and the Doctrine of Anticipatory Nuisance , 55 Drake L. Rev. 497, 500 (2007).

4. Kelley J. Donham et al., Community Health and Socioeconomic Issues Surrounding Concentrated Animal Feeding Operations, available at www.ncbi.nlm.nih.gov/pmc/articles/PMC1817697.

5. Jeff El-Hajj, Confined Animal Feeding Operations in California: Current Regulatory Schemes and What Must Be Done to Improve Them, 15 Hastings W.-N.W. J. Envtl. L. & Pol’y 349 (2009).

6. Idaho Dairymen’s Ass’n v. Gooding County, 227 P.3d 907 (Idaho 2010).

7. Nicholas Clark Buttino, An Empirical Analysis of Agricultural Preservation Statutes in New York, Nebraska, and Minnesota, 39 B.C. Envtl. Aff. L. Rev. 99, 112 (2012).

8. Id.

9. Id.

10. See Lincoln County, Idaho, CAFO Ord. 1212-08-2; Schuyler County, Missouri, Ord. 11-05; Clay County, South Dakota, Zoning Ord. art. III.

11. County of Nez Perce, Idaho, Zoning Ord. 72z-9, available at www.co.nezperce.id.us/Portals/0/Planning%20and%20Building/Ordinance/Nez%20Perce%20County%20Zoning%20Ordinance%2072z.pdf.

12. Note that these are not “consecutive” days.

13. See supra note 11.

14. Borron v. Farrenkopf, 5 S.W.3d. 618 (Mo. Ct. App. 1999).

15. See generally Gooding County, Idaho, CAFO Ord. 90 (2007), available at www.goodingcounty.org/Ordinances/Ord90.pdf.

16. Id.

17. Gooding County Application for CAFO Permit, available at www.goodingcounty.org/REVISED%20APP%20CAFO%20Siting%20Permit%20Ord%20%2090%20(2).pdf.

18. Id.

19. Id.

20. Id.

21. Indiana’s Site Scoring System.

22. Id.

23. Id.

24. Id.

25. State of Indiana, A Guide to Local Land Use Planning for Agricultural Operations, www.in.gov/isda/files/Model_Ordinance_Concepts__4_.pdf.

26. Id.

27. S ee A Guide to Local Land Use Planning for Agricultural Operations, supra note 25.

28. Lewis, supra note 2, at 1558 (2008).

29. Id.

30. Clay County, South Dakota, Zoning Ord. art. III, § 3.07.

31. Schuyler County Zoning Ordinance.

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