Concentrated Animal Feeding Operation (CAFO) Regulations
Jennine Kottwitz, Tegan Jarchow (authors), Sara Bronin, Jonathan Rosenbloom, & Margot Pollans (editors)INTRODUCTION
Local governments across the country have been attempting to rein in Concentrated Animal Feeding Operations (CAFOs) negative environmental and social impacts through a variety of zoning approaches. CAFOs are large “livestock operation[s] in which animals are bred and raised in confinement.”[1] The U.S. Environmental Protection Agency’s (EPA) definition of a CAFO includes any sized animal feeding operation “that discharges manure or wastewater into a natural or man-made ditch, stream, or waterway.”[2] There are two main types of CAFOs. The first type is subdivided into (1) indoor dairy and hog livestock enclosures, and (2) indoor poultry enclosures, while the second type being consists of feedlots which keep animals outdoors in pens.[3] Typically, in the first subtype (indoor dairy and hog livestock enclosures) clean water is used to wash animal waste into lagoons or waste-storage structures.[4] In the second subtype (indoor poultry enclosures) the waste falls from animal cages to the floor.[5] The waste is then periodically scraped out or collected on conveyer belts and moved to composting.[6] The second type (outdoor feedlots) allows waste to accumulate on the ground and then wash off into ditches and streams.[7] While some local communities have hoped that situating CAFOs in the jurisdiction would lead to economic gains that would offset any environmental costs of CAFOs, many have found that these gains have failed to materialize, and in some cases the CAFOs have acted as a deterrence to new and further development and led to the devaluing of property values.[8]
While federal and state governments have created some regulations to monitor CAFOs, local governments across the country have begun looking at how they too can create more stringent regulations, particularly in zoning codes. The federal government regulates discharge by CAFOs through the EPA pursuant to the Clean Water Act.[9] From the local perspective, EPA regulations and their enforcement on CAFOs are often considered too weak.[10] They often allow waterways to be polluted to a point where citizens cannot use the water for potable or recreational purposes.[11]
While the EPA’s regulations are a starting point, localities can help guide the regulation of CAFOs and their waste management systems to create a better environment. However, it is important for local governments to make sure that any regulation it enacts is not explicitly or implicitly (direct conflict or implied field) pre-empted by state law regarding local regulation of CAFOs.[12] We have found several states to either explicitly or implicitly preempt local governments from enacted stricter regulation at the local-level.[13]
Local governments have a few options in how they approach regulation of CAFOs. Local governments have regulated CAFOs through zoning ordinances “completely restricting their siting” (such zoning laws would be the first line of defense for a local community), density and setback requirements (such as how close an operation can conduct certain activities near other properties, water sources, etc.), detailed permitting schemes, and odor controls.[14] One recommendation to make any regulation of CAFOs most effective is for a local government to tailor its definition of a CAFO within their ordinances to match the scope of the goals of their regulations.[15]
For purposes of local CAFO regulations, a permit system allows both review during the siting process and continued review during operation. A permit system can outline procedural and substantive requirements for both establishment and continuance of the permit,[16] as well as periodic review for renewal purposes. Another approach is to establish a “site scoring system.”[17] Such a system apportions points to certain desirable characteristics of a potential CAFO site.[18] If wanting to construct on a less desirable site, a CAFO operator can regain points by implementing counteractive measures such as stricter odor control.[19] Local governments can also require CAFOs to post a bond.[20] This requirement protects communities from the health, safety, and environmental dangers an abandoned CAFO site can pose without proper safety measures funded and taken.[21] They can also be used as a pool of funds from which the local government can deduct fines and penalties for operating violations.
An additional approach is to specifically mandate and empower local boards of health to monitor and investigate health problems, engage in research, create health-related policies and regulations, “mobilize community partnerships,” and engage in education associated with the health dangers of CAFOs.[22] They can also engage in heightened air and water quality testing in areas near CAFOs.[23] For local governments within states that have legislation pre-empting significant portions of potential local CAFO regulation, strategies will have to focus on “partnerships with industry and voluntary programs that educate producers about practices to minimize pollution discharge and enhance pollution controls.”[24]
EFFECTS
All three subtypes and types of CAFOs produce significant environmental damages and public health concerns. The EPA and USDA have determined that CAFOs are “the largest cause of water quality impairment in the country’s rivers, streams, lakes, ponds, and reservoirs” and that “they contribute to the impairment of approximately 37% of the nation’s surveyed rivers and streams.”[25] Seepage from the lagoons contaminate groundwater, which increases the chances of E. coli bacteria showing up in major water sources.[26] An estimated 53 percent of the United States population uses groundwater as its main drinking water source, with rates especially high in rural areas.[27]
CAFOs often result in a lingering malodor.[28] When animals are kept inside and the manure is stored in a lagoon or waste-storage structure, the manure decomposes and becomes toxic.[29] When there is not sufficient oxygen in the environment for the manure to decompose completely, the manure rots and produces “more than 300 volatile organic compounds of varying degrees of toxicity.”[30] The organic compounds have an adverse effect on mood when inhaled.[31] Furthermore, the odors contain “chemical compounds, including ammonia, [and] hydrogen sulfide.”[32] Ammonia can causes respiratory distress and, in high concentration, hydrogen sulfide can cause unconsciousness and death.[33] Both humans and animals can quickly die or become sick when CAFO ventilation systems fail.[34]
CAFOs are not just dangerous to human and animal health; they also produce greenhouse gases and contribute to global climate change.[35] CAFOs are responsible for over seven percent of U.S. greenhouse gas emissions.[36] Manure produces both methane and nitrous oxide.[37] These gasses are significantly more potent than the carbon dioxide produced by, among other things, car exhaust.[38] CAFO regulations are a critical component to reducing water and air pollution, and to ensuring the health of humans, animals, and the planet.
EXAMPLES
Bayfield County, WI
Bayfield County, WI regulates CAFOs within their zoning ordinances. The CAFO regulations aim to protect the health and safety of the community, protect the environment, prevent pollution, prevent public and private nuisance actions, preserve quality of life, and protect local small-scale livestock and other local agricultural operations.[39] They outline a definition of CAFO that includes operations with “a lot or facility, other than a pasture or grazing area, where 1,000 or more animal units have been, are or will be stabled or concentrated”, or two similar smaller operations that operate in some way together.[40] Part of the CAFO regulations provide a permitting process where CAFO operators must apply for a permit before beginning operation.[41] The County Board will only permit the CAFO if by clear and convincing evidence they can show the operation will fulfill the aims of the ordinance mentioned above (health and safety of the community, etc), as well as other ordinance requirements.[42] The Board can void a permit if at any time the CAFO violates the terms of the ordinance.[43]
Bayfield County also requires CAFO operators to post a bond to ensure that if they shut down, there are funds to repair damages to the land, and protect the surrounding community.[44] The permit approved by the Board may contain certain conditions, such as those relating to operational characteristics of the CAFO, those relating to processes of waste disposal, as well as those relating to water and air quality, health precautions, compliance and monitoring procedures, and anything else “deemed reasonably necessary or appropriate by the County Board to effectively, efficiently, and comprehensively regulate the operations of a CAFO” for purposes of the public welfare.[45] Bayfield County also provides for an appeal, continuance of a permit, and fee penalties for non-compliance.[46] The CAFO laws are specifically drafted without reference to “siting” requirements, to avoid explicit pre-emption by Wisconsin state law.[47] Separate licensing requirements, and setback requirements, such as for storage of waste and distance from public-right of ways, are also required for CAFOs in the Livestock Facilities Licensing chapter.[48]
To view the provisions see Bayfield County, WI, Code of Ordinances title 5, ch. 6 §§ 5-6-1-5-6-7 (2016), and Bayfield County, WI, Code of Ordinances title 5, ch. 2 (2015).
To view a previous Bayfield County ordinance enacting a 12 month moratorium on CAFO construction to better study their effects and evaluate the County’s capacity for enforcement of a new regulation see Bayfield County, WI, Code of Ordinances § 5-4-1-5-4-7 (2015).
Gooding County, ID
Recognizing the dangers posed by CAFOs, Gooding County, ID enacted an ordinance, finding that “there is a danger of pollution to the aquifers, watersheds, surface water, ground water, springs and water courses located in Gooding County by the locating of CAFOs on or near, rivers, flood plains and canyon rims or in other areas where aquifers are subject to surface use influences. The locating of CAFOs near these areas increases the chances of pollution to the waters in Gooding County.”[49]
In response, Gooding County created a process for “siting permits” to operate any new CAFO, to increase in the number of animals of a current operation, “to enlarge or change location”, or “[t]o enlarge the capacity or change the location of the waste management system.”[50] The law seeks to promote the health and welfare of the community with this ordinance.[51]
Application for a permit requires the submission of information about the land in question (such as water locations), a detailed site plan, description of the waste management system, and a strategy to mitigate odor, dust, and pests, among other requirements.[52] The application is submitted to the County Board, who may invite review and comments from other agencies, such as the EPA, and who will then hold a public hearing.[53] Requirements for approval by the Board include specific standards for the waste management system, water quality, animal and land management, and setbacks.[54] If a CAFO operator ceases or stalls operation, the owner must remove all solid and liquid waste within 180 days or be considered and treated by the County as a nuisance under the Idaho Code.[55]
Failure to comply with the terms of the permit allows the County to fine or jail a CAFO operator.[56] The Board or other agency is also allowed to take measures “necessary to insure compliance of this ordinance to protect the health, safety and welfare of the residents of Gooding County,” as well as to assess and inspect the operation of any CAFO.[57] Any “affected person” of the CAFO can initiate a hearing with the Board to allege the CAFO is no longer in compliance.[58] The Board can revoke, suspend, modify, or condition a permit already issued upon adequate grounds of non-compliance.[59]
To view the provision see Gooding County, ID, CAFO, Ord. No. 90 (Jun. 12, 2007).
ADDITIONAL EXAMPLES
Cerro Gordo County, IA, Zoning Ordinance §§ 201.1-20.2 (2012) (regulating all commercial feedlots and confinement operations with over one thousand livestock head be a minimum of one-quarter mile away from any residential or commercial district boundary, and regulating storage lagoons to be a minimum of two hundred feet from a property line or road right-of-way; both special uses require acceptance through their permitting system).
Town of Magnolia, WI, Zoning Ordinance §§ 4.5-4.6 (2018) (prohibiting CAFOs from siting in their General Agricultural District 2 and Small Scale Agricultural District Three).
Tewksbury, MA, Zoning Bylaw §§ 8300, 8322(i), 8333 (2017) (creating an overlay Groundwater Protection District prohibiting storage of animal manure unless it conforms with the specifications set by the Natural Resource Conservation Service; special permits are approved only if the proposed use does not adversely affect water quality and is designed to avoid “substantial disturbances of … water-related natural characteristics of the site”).
Wabash, IN, Zoning Code § 10.71(f)(11) (2017) (regulating CAFOs Special Use, defining medium and large CAFOs by the number of animals on the property, requiring a pre-application permit, and banning all CAFOs from the city limits; also stipulating both lagoons and holding tanks be set back 2,640 feet from any public well).
Kewaunee County, WI, Public Health and Groundwater Protection Ordinance, 173-9 (2014) (intending to protect the health and wellbeing of the County by defending its groundwater from contamination, including contamination by manure, after research showed serious contamination occurring, and mandating certain procedures for manure disposal).
ADDITIONAL RESOURCES
James Merchant & David Osterberg, The Explosion of CAFOs in Iowa And Its Impact on Water Quality and Public Health, IA Pol’y Project (Jan., 2018), https://perma.cc/46ZB-PQNV.
Purdue Research Foundation, Purdue Manure Management Planner (Oct. 20, 2017) https://perma.cc/9G2V-XLZ9.
Sierra Club-John Muir Chapter, CAFOs: A Threat to Water in Wisconsin (Jun., 2017), https://perma.cc/BZ63-XWSB.
CITATIONS
[1] Michelle B. Nowlin, Sustainable Production of Swine: Putting Lipstick on a Pig?, 37 Vt. L. Rev. 1079, 1084 (2013), https://perma.cc/L7VV-3YQQ.
[2] Nat. Res. Conservation Serv., Animal Feeding Operations, https://perma.cc/4NS8-UERU (last visited May 17, 2020).
[3] Sierra Club Mich. Chapter, Why are CAFOs Bad?, https://perma.cc/62M7-3HUV (last visited May 17, 2020).
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Jon Ikerd, Confronting CAFOs through Local Control, https://perma.cc/EQM9-69S4 (last visited May 17, 2020).
[9] 40 C.F.R. § 122.1 (2012), https://perma.cc/UPN3-GJQM.
[10] See generally Nowlin, supra note 1.
[11] See generally Nowlin, supra note 1.
[12] CAFO Regulation, CountyHealthRankings.org (last updated Apr. 21, 2017), https://perma.cc/2T7F-AVU4; Grassroots Change, Preemption Watch: Factory Farms, https://perma.cc/3W83-EY4C (last visited May 17, 2020); see generally Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223 (Iowa 2018); see generally Goodell v. Humboldt County, 575 N.W.2d 486 (Iowa 1998) (preventing the local regulation of CAFOs because of pre-emption by the state legislature); see generally Worth County Friends of Agric. v. Worth County, 688 N.W.2d 257 (Iowa 2004) (preventing the local regulation of CAFOs through public health controls as also implicitly pre-empted by the Iowa legislature).
[13] Id.
[14] Shannon M. Roesler, Federalism and Local Environmental Regulation, 48 U.C. Davis L. Rev. 111, 1159 (2015), https://perma.cc/7S2V-AZ7W.
[15] Ariel R. Kaplan, CAFOs: Five Essential Tools for Local Regulation, State & Local Law News 10 (Summer 2012).
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Carrie Hribar, Understanding Concentrated Animal Feeding Operations and Their Impact on Communities, Nat’l Ass’n Loc. Boards of Health 12 (2010), https://perma.cc/K6NU-JC5Z.
[23] CAFO Regulation, supra note 12.
[24] Id.
[25] Nowlin, supra note 1, at 1086.
[26] Id. at 1087-88.
[27] Hribar, supra note 22, at 3.
[28] See Nowlin, supra note 1, at 1089.
[29] Id.
[30] Id.
[31] Id.
[32] Id. at 1090.
[33] Id.
[34] Id.
[35] Hribar, supra note 22, at 3.
[36] Id. at 7.
[37] Id.
[38] Id.
[39] Bayfield County, WI, Code of Ordinances, title 5, ch. 6 § 5-6-2 (2016).
[40] Id. at § 5-6-3.
[41] Id. at § 5-6-4.
[42] Id.
[43] Id.
[44] Id. at § 5-6-5(i)(2).
[45] Id. at § 5-6-5(j).
[46] Id. at § 5-6-5-5-6-7.
[47] Id. at § 5-6-1-5-6-2; Midwest Env. Advocates, Livestock Facility Siting Law, https://perma.cc/8C7M-5LD5 (last visited May 17, 2020).
[48] Bayfield County, WI, Code of Ordinances title 5, ch. 2 (2015).
[49] Gooding County, ID, CAFO, Ord. No. 90 § I(B) (Jun. 12, 2007).
[50] Id. at § IV.
[51] Id. at § I(C).
[52] Id. at § V.
[53] Id. at § VI.
[54] Id. at § VII.
[55] Id. at § XII.
[56] Id. at § XIV.
[57] Id.
[58] Id.
[59] Id.