North Dakota bill aims to clarify livestock rules, but critics say it erodes local authority of feedlots

Three-week-old pigs huddle together. Under a proposed regulation change, piglets would not be counted as an animal unit. Forum News Service file photo

FARGO — Agricultural groups are backing a bill that would restrict zoning regulations for livestock feedlots in North Dakota. Critics, however, say it would strip away local authority to protect rural residents from factory farms.

Senate Bill 2345 stems from recommendations that emerged from a January meeting of agricultural and health officials as well as representatives of livestock and cereal grains agriculture.

North Dakota agriculture officials have been trying to boost the state’s livestock industry, which lags far behind neighboring states, and the bill is aimed at providing greater regulatory certainty for those considering costly animal feeding operations.

The bill would require township and county governments to act within 60 days on a petition to determine whether an animal feeding operation complies with local zoning regulations. Failure to act within that deadline would mean the operation is deemed in compliance.

The bill also would remove piglets from the state’s definition of animal units, a calculation used to determine the land base required for spreading manure, composting dead animals and the capacity of manure storage pits.

In another switch, the bill changes the designation “concentrated feeding operation” to “animal feeding operation,” a category shift that could be significant, opponents say, because different rules and regulations apply.

In the case of a concentrated animal feeding operation, or CAFO, a North Dakota pollution discharge elimination system permit is required, while an animal feeding operation, or AFO, does not need one, said Randal Coon, who testified against the bill and has a farm near Buffalo in rural Cass County where a large swine factory farm has been proposed.

'Equal playing field'

Once an animal feeding operation is given a permit, it has up to five years to build the factory farm, under a timeline provided by the bill.

“Our department fully supports this bill but recognize that this may not go far enough to provide our agriculture producers an equal playing field with our neighboring states,” Deputy Agriculture Commissioner Tom Bodine said.

The bill “creates a certainty for those applying to the Health Department to permit an animal feeding operation that the zoning rules in place at the time of the permit submission will not be allowed to change once the process has started,” he said.

Dave Glatt, chief of the state’s environmental health section, also supports the bill, which he said in written testimony will provide greater clarity.

“Without a clear indication of the zoning requirements, producers and the state may be caught designing and reviewing facilities that do not meet zoning standards,” Glatt said in his written comments. “Or they may be stuck in limbo in cases where the local zoning authority is unable or unwilling to make that determination.”

Pete Hanebutt, a lobbyist for the North Dakota Farm Bureau, said the bill is intended to clarify state laws regulating feedlots, which in some areas are readily accepted and in other areas have provoked an intense backlash from neighboring property owners.

Under current laws, he said, there is “room for interpretation in the code that leaves people wondering, what does that say?” he said.

The 60-day review period was deemed reasonable, Hanebutt said. The 60-day period is also used in reviewing some energy projects for example, he said, and avoids open-ended reviews that can drag on, causing uncertainty.

In fact, he said, state health officials, who have authority to regulate pollution controls for factory farms, suggested the deadline.

'Not favorable to townships'

The state’s other leading farm organization, the North Dakota Farmers Union, agrees with the goal of increasing the livestock industry, but does not favor the bill as written.

“The 60-day window seems unworkable,” Kayla Pulvermacher, a Farmers Union lobbyist said in written testimony. “From our research, the Department of Health has taken about 100 to 110 days to complete its work. For a township who meets just a few times a year and has no staff and little money, they would need to go through the plan to see if it meets requirements on its own.”

She suggested changes, including lengthening the review period.

The North Dakota Association of Counties is neutral on the bill, and has concluded that it would still have adequate oversight of animal feeding operations, said Aaron Birst, the association’s legal counsel and assistant director for policy.

The North Dakota Township Officers Association has concerns the bill could undermine its authority, but is still reviewing the legislation.

“Early indications are that that’s a bill that’s not favorable to townships,” said Tim Geinert of Nortonville, a district director for the township officers association. “The concern is that it would take some authority away."

Some of those who testified against the bill when it was before the Senate Agriculture Committee on Feb. 1 were residents who live near Buffalo, where the 9,000-swine, $15 million Rolling Green Family Farms operation is proposed.

“This bill changes the very core of our local government, which has been viable for decades,” said Liane Stout, an opponent of the Buffalo project. “I believe these facilities already have leeway under existing law. We already have restrictions placed on townships and counties with existing law. What is the purpose of providing these developers more protection while stripping local boards of their zoning abilities?”

Rolling Green Family Farms received a state permit in 2016 and survived a court challenge, but continues to spur intense opposition from neighbors and has not yet received local approval. Similarly, a proposed large swine farm near Devils Lake also drew opposition from the Spirit Lake Nation as well as neighbors. State health officials still are considering a permit for the project.

In the case of the proposed Rolling Green Family Farms operation, the township changed its local zoning ordinance after the state granted a permit, Bodine said. The project’s backers have yet to apply for a local permit.

Piglets no longer counted

The bill would eliminate piglets from calculations of animal units, used to plan for adequate manure storage and disposal.

“The change in wording eliminates the thousands of piglets born annually in farrowing operations,” said Paul Kasowski, a neighbor of the proposed factory farm near Buffalo. “Failure to include the piglets in the animal units will result in inaccurate setbacks from neighbors, an undersized manure storage pit, insufficient land for disposal of the manure, and incorrect composting of the many dead pigs. All of these create significant issues and will cause a huge problem for the local residents living in the area and serious difficulties for townships.”

Rolling Hills Family Farms, whose developer is Pipestone Systems of Pipestone, Minn., would produce 180,000 piglets a year. Using industry averages, that would translate into 1,388 animal units daily, Coon said.

Piglets normally are factored in with the animal units for sows, Hanebutt said. “That’s pretty much standard operating procedure,” he said. “The Health Department understands that.”

Supporters and opponents of the bill packed a legislative hearing on the bill when it was considered by the Senate Agriculture Committee, which has yet to vote on the legislation.