The Game is Rigged: Fighting the CAFO

Phil Anderson

The Bayfield County Board passed two local ordinances to regulate large factory farming. Some of the provisions exceed state requirements. But citizens opposing the proposed Concentrated Animal Feeding Operation (CAFO) still have the cards stacked against them.  The new ordinances may be challenged in court. State law does not allow local governments to prohibit CAFOs. Local regulatory power through local ordinances is limited by state law.  Citizen’s ability to sue for damages is also limited.   

The state regulatory system is largely skewed in favor of the industry. The “right to farm” laws and the state permitting laws do little to to protect the public. The ability of the the DNR to provide effective oversight and regulation, which was always weak, has been decimated by budget and staff cuts. The complexity of the issues and inadequate regulation have left the public with all the costs and few of the benefits from more “efficient” food production.  

The situation in Kewaunee County illustrates the problems. A report done by the Socially Responsible Agriculture Project says,

“In documented problems spanning three decades, the report highlights the Wisconsin DNR’s routine practice of rubber-stamping CAFO applications, resulting in the Wisconsin county buckling under the yearly weight of 340 million gallons of untreated, liquefied manure and 81,332 tons of untreated, pharmaceutical-laden solid manure which is applied annually to local cropland.”

“We’re told the technical standards governing livestock factories are vigorous and designed to turn animal waste in to a valued asset. Why then are an unacceptable number of rural wells and too many of our public waters tainted by a toxic soup?”    

Kewaunee County has a public health crisis. Well water testing in June 2013 showed that 30.85 percent of the wells tested contained nitrates and/or E. coli bacteria at levels deemed unsafe for human consumption by state and federal authorities. Residents report noxious odors, manure residue in home tap water, illegal manure spills and runoff into local waterways and properties, fish kills in local streams and physical ailments, including respiratory issues, headaches, watering eyes and nausea.  

Bayfield County Board Actions
 
The Bayfield County Board approved a one-year moratorium on CAFOs in February 2015. This allowed a committee time to study the potential impact a CAFO and what the county could do to regulate the situation. After an extensive investigation the Large-Scale Livestock Study Committee issued its Preliminary Report and Recommendations in December, 2015.
The full county board reviewed the recommendations and passed two ordinances at the  January 26, 2016 board meeting. These ordinances followed the recommendations of the committee.

The Large?Scale Confined Animal Feeding Operations Ordinance requires new or expanding livestock operations of 1000 animal units or more obtain a county permit and demonstrate the operations will not cause pollution or a private or public nuisance. Some of the requirements are:
The permit applicant would need to prove that a similar facility had operated for 10 years without pollution and nuisance problems.  
The applicant must demonstrate ability to fund cleanup, nuisance abatement and future facility closure.
The applicant is required to compensate the County for expenses from reviewing the permit application.   

The  Animal Waste Storage and Management Ordinance requires new or significantly modified manure storage structures greater than 500 cu. ft. to have a permit and meet state standards. New or significantly modified livestock feeding operations with 50 animal units or more would need a permit and have to meet barnyard NRCS Technical Standards.

Other recommendations included:

Well testing outreach and education to encourage annual testing of private wells and repair of substandard wells.
Provide incentives to encourage manure digesters, and use of methane such co?location of energy?intensive businesses (greenhouses, kilns) with livestock operations.  

The full committee report is available at Bayfield County UWEX site  HYPERLINK “http://bayfield.uwex.edu/tag/cafo”http://bayfield.uwex.edu/tag/cafo.  

The ordinance still must must survive the inevitable legal challenges. Some provisions of  state law that may override these local ordinances.

State law

State law regulates CAFOs and provides the framework for protecting the public and the environment. Wisconsin’s Livestock Siting Law (ATCP 51) is the main regulation. The DNR requires permits for any discharge of pollutants into any rivers, lakes, or streams under the Wisconsin Pollution Discharge Elimination System (WPDES). Polluters can also be sued in civil court for damage done to their neighbors.

Wisconsin‘s Livestock facility siting and expansion law required Wisconsin Department of Agriculture, Trade, and Commerce Protection (DATCP) to create rules setting standards for new and expanding livestock facilities. But the standards must also be “cost-effective” and  balance the economic viability of farm operations with protecting natural resources and other community interests. The Livestock Siting Law primarily establishes sets backs for barns and manure storage from roads, shorelines and wells. It requires compliance with other wetland, lake shore and flood plain rules.    

Livestock Siting Law controls what local municipalities and counties can do to regulate new or expanded livestock facilities with 500 or more animal units. Local governments are required to grant permits if the application is complete and they have no “clear and convincing information to the contrary.” They can not have local standards that are more stringent than DATCP (with some public health related exceptions). Local governments are unlikely to have the staff or resources to effectively monitor or challenge application details.  

Under ATCP 51 local governments can charge an application fee of no more than $1,000. This fee is intended to offset the cost of review and processing by the political subdivision. An applicant is not required to post any bond or security to cover potential future clean up costs from pollution, abandoned or improperly closed facilities. The Bayfield committee’s recommendations are stronger for recovering permit application costs and ensuring funds for clean up are stronger.   

Private citizens can sue for injury and loss of property rights from odors, noises or other nuisances. But Wisconsin makes it very difficult to prove a nuisance against an agricultural operation. You must establish that there is a substantial threat to public health or safety. Moreover, if an agricultural use or practice is found to be a nuisance, there are restrictions on what the court can do to fix the problem. The “right to farm” prevents restricting framing practices or anything that will substantially affect the economic viability of the farm. The statute requires the plaintiff to pay litigation costs if no nuisance is found. This effectively limits most people’s ability to sue.

(The above summary of state law is based on Protecting Your Community From Existing and Proposed Concentrated Animal Feeding Operations (CAFOs), A Guide to Legal Actions  by the Midwest Environmental Advocates.  HYPERLINK “http://midwestadvocates.org/assets/resources/citizenguides/MEA_CAFO_Toolkit.pdf”http://midwestadvocates.org/assets/resources/citizenguides/MEA_CAFO_Toolkit.pdf )

Citizens will have an uphill battle to protect their quality of life and local control of their communities. The state’s laws, permit process, and state oversight have not prevented serious problems in the past. The Bayfield County Board has tried to improve this situation  with local regulations. But will their efforts stand up to the legal challenges? Will they succeed where the state has failed in the past?