CAFO Vesting Changes Could Be Coming

The Grant County Commissioners met during their regular session December 6, at the Grant County Courthouse. Todd Kays, Executive Director of First District Association of Local Governments, proposed wording changes to Ordinance 2016-01.

A public hearing was set for Tuesday, December 20, at 9 a.m. at the courthouse and will be a joint session with the Grant County Commissioners and the Planning and Zoning Board. The first reading of the changes will be heard at that meeting. The second reading of the ordinance is scheduled for Thursday, December 29. If approved, changes to the ordinance go into effect in January 2017.

During the December 6 meeting, Kays provided background that led to the proposed changes. Ordinance 2016-01 was adopted earlier this year and went into effect in June. In developing the concentrated animal feeding operation (CAFO) ordinance, an unintended consequence was discovered – nearly one-half of the existing CAFOs in Grant County (approximately 162 operations) did not comply with the one-half mile setback from a residence requirement adopted in 1997. Additionally, 69% of all existing CAFOs did not comply with the proposed 2016 residential setback of three-fourths of a mile.

As a compromise, Ordinance 2016-01 created a vesting process for owners or lawful agents, who with or without a county-issued permit, engaged in a CAFO operation on or before June 9, 2016. The intent of the vesting process included four points:
1) Vesting would allow a vested CAFO, determined to be nonconforming due to setback/separation requirements, to be replaced in the event of calamity as long as the replacement did not further encroach upon the setback existing at the time of vesting.
2) Vesting would also allow for a vested CAFO to be expanded to a prescribed number of animal units, as long as the expansion did not further encroach upon the setback existing at the time of vesting.
3) Vesting is tied to the land and not the landowner.
4) Existing CAFOs have two years to become vested.

Administrative documents were developed and a process created to conform with the ordinance. In doing so, it was discovered if an existing CAFO with less than 1,000 animal units desired to become vested and receive relaxation from setback requirements, they were required to develop a nutrient management plan, fly and order control management plan, manure management plan, a signed letter of assurance, and a signed haul road agreement.

That information was presented to the Grant County Planning Commission and the county commissioners on September 20. “It was apparent the approved rule did not align with the intent of the county,” Kays explained. “Therefore, the commission asked the planning commission to review the ordinance and make recommendations to address the onerous requirements for the expansion of CAFOs with less than 1,000 animal units.” That review occurred on October 18.

Kays’ proposed amendments to the ordinance include:
• Require all CAFOs established after June 9, 2016 and with over 500 animal units to obtain a permit and comply with nutrient, manure management, fly and odor control, letters of assurance and haul road agreements. A state general permit would also be required for operations over 1,000 animal units.
• Allow existing Class E CAFOs to replace and/or expand within their existing class unencumbered by setback and minimum lot area requirements without vesting. They cannot further encroach upon the setback of an existing operation.
• Existing Class E CAFOs are not required to obtain nutrient, manure management, fly and odor control, letters of assurance, and haul road agreements.
• Allow existing vested Class E CAFOs to expand up to 1,999 animal units unencumbered by setback and minimum lot area requirements. They are required to obtain a conditional use permit at 1,000 animal units.
• Allow vested Class C CAFOs to expand up to 1,999 unencumbered by setback and minimum lot area requirements without vesting. They cannot further encroach upon the setback of existing operations.
• Allow vested Class B CAFOs to expand up to 4,999 unencumbered by setback and minimum lot area requirements without vesting. They cannot further encroach upon the setback of existing operations.
• Allow vested Class A CAFOs to expand by 10% of their county-issued permit unencumbered by setback and minimum lot area requirements without vesting. They cannot further encroach upon the setback of existing operations.

A discussion ensued. Commissioner Clayton Tucholke raised a question regarding minimum lot requirements. “In regard to the 80-acre requirement, I think we are missing the intent with that,” he stated.

Kays explained in reviewing the existing regulations, it was found that the 80-acre minimum lot requirement enacted in 2004 changed the status of 74 existing CAFOs to non-conforming, thereby restricting their replacement in the event of a calamity or expansion. “The proposed language requires any CAFO established after June 9, 2016, to have a minimum lot area of 80 acres,” Kays said. “It also allows CAFOs established prior to June 9, 2016, with less than 80 acres to become vested at a minimum lot requirement of less than 80 acres.”

Further discussion resulted in another change. The 80-acre requirement was changed to affect only Class A, B, and C operations established after June 9, 2016. Those with fewer than the 80-acre requirement would have two years to become vested. “If operations under 80 acres choose not to become vested, they will not be allowed to expand or replace,” Kays noted. The change was approved and will be made prior to publication of the public hearing notice.