Confinement livestock legislation

 By Neil E. Harl, Charles F. Curtiss Distinguished Professor of Agriculture and Professor of Economics, 515/294-6354, harl@iastate.edu

(H.F. 2494, House Amendment 9048)

County Authority

In response to the March 5, 1998, decision of the Iowa Supreme Court, Goodell v. Humboldt County, the legislature further narrowed the authority of counties in dealing with confinement livestock facilities.  Section 9 of the act, adding Iowa Code § 331.304A, provides -

“A county shall not adopt or enforce county legislation regulating a condition or activity occurring    on land used for the production, care, feeding, or housing of animals unless the regulation of the production, care, feeding or housing of animals is expressly authorized by state law.”

The provision specifies further that—

“County legislation adopted in violation of this section is void and unenforceable and any enforcement activity conducted in violation of this section is void.  A condition or activity occurring on land used for the production, care, feeding, or housing of animals includes but is not limited to the construction, operation or management of an animal feeding operation, an animal feeding operation structure, or aerobic structure, and to the storage, handling, or application of manure or egg washwater.”

The language of the statute eliminates what authority remained in the counties after the Goodell decision.

Nuisance actions

H.F. 519, codified in Iowa Code § 657.11, provided substantial protection for animal feeding operations against lawsuits based on nuisance.  Section 38 of the 1998 amendments makes several changes to that protection -

• Under the 1995 legislation, the rebuttable presumption that an animal feeding operation was not a public or private nuisance could be overcome only by “clear and convincing evidence” that the operation unreasonably and continuously interfered with another’s comfortable use and enjoyment of their life or property and the injury or damage was proximately caused by the negligent operation of the animal feeding operation. The 1998 amendment specifies that the nuisance protection does not apply if (a) the animal feeding operation unreasonably (but not necessarily continuously) for substantial periods of time interferes with another’s comfortable use and enjoyment of their life or property and (b) the animal feeding operation failed to use existing prudent generally accepted management practices reasonable for the operation.  The 1998 law dropped the “clear and convincing evidence” standard.
• The 1998 amendments dropped language from the 1995 legislation that “an animal feeding operation that complies with the requirements of chapter 455B for animal feeding operations shall be deemed to meet any common law requirements regarding the standard of a normal person living in the locality of the operation.”
• Under Section 39 of the 1998 amendments, the protection against nuisance suits does not apply “to a chronic violator…as to any confinement feeding operation in which the person holds a controlling interest.”

Habitual violators

The 1998 legislation, Section 29, expanded the scope of the habitual violator rule in several respects.  Under the 1998 amendments, a person is not to construct or expand an animal feeding structure which is part of a confinement feeding operation if the person is (a) a party to a pending action by the attorney general for violation of the rules on confinement feeding operations; or (b) is a habitual violator.

• The terms “construct” or “expand” include “financing and contracting to build an animal feeding operation regardless of whether the person subsequently leases, owns, or operates the animal feeding operation structure.”
• A person receiving a controlling interest in a “suspect site” pursuant to a “suspect transaction” must submit a notice of the transaction to the Department of Natural Resources within 30 days.  If the department finds that one purpose of the transaction was to avoid  habitual violator status, the rules applicable to a habitual violator will apply anyway.

A “suspect site” means “a confinement feeding operation or land where a confinement feeding operation could be constructed, if the site is subject to a “suspect transaction.”

A “suspect transaction” means a “transaction in which a habitual violator does any of the following:

(1)  transfers a controlling interest in a suspect site to any of the following:

(a) an employee of the habitual violator or business in which the person holds a controlling interest,

(b) a person who holds an interest in a business, including a confinement feeding operation, in which the habitual violator holds a controlling interest,

(c) a person related to the habitual violator as spouse, parent, grandparent, lineal ascendant of a grandparent or spouse and any other lineal descendant of the grandparent or spouse, or a person acting in a fiduciary capacity for a related person [other than by operation of law] or

(2)  provides financing for the construction or operation of a confinement feeding operation to any person, by providing a contribution or loan to the person, or providing cash or other tangible collateral [but not intangible collateral] for a contribution or loan made by a third person.”

• The DNR is to conduct an annual review of each confinement feeding operation which is a habitual violator and each operation in which a habitual violator holds a controlling interest.

Separation distances

The 1998 amendments made several changes in the separation distances of confinement feeding operations from specified types of installations.

• Section 16 of the 1998 statute specifies that “an animal feeding operation shall not be constructed or expanded within one hundred feet from a thoroughfare, including a road, street, or bridge which is constructed or maintained by the state or a political subdivision.”  Section 19 specifies that the distance between a thoroughfare and an animal feeding operation structure is to be measured from the portion of the right-of-way which is closest to the animal feeding operation.
• Section 21 adds a special exception for animal feeding operation structures within the required separation distance from a thoroughfare.  The installation is permitted “if permanent vegetation stands between the animal feeding operation structure and that part of the right-of-way from which the separation distance is measured… .”  The permanent vegetation must “stand along the full length of the animal feeding operation structure” and “be at least seedlings and have a mature predicted height of at least twenty feet.”
• In general, Section 35 specifies that an animal feeding operation is not to be constructed closer than 500 feet from “a surface intake, wellhead, or cistern of an agricultural drainage well or known sinkhole.” An animal feeding operation is not to be constructed if the animal feeding operation structure is closer than 200 feet from a watercourse (other than a major water source) or 500 feet from a major water source. A water course, other than a major water source, is not to be constructed, expanded or diverted, if the watercourse would be closer than 200 feet from an animal feeding operation structure.  A major water source is not to be constructed, expanded or diverted if the water source would be closer than 500 feet from an animal feeding operation structure. The above limits imposed by Section 35 do not apply if a farm pond or privately-owned lake is what is involved or if it involves a manure storage structure built with a secondary containment barrier. A person is not to construct or expand an unformed manure storage structure within an agricultural drainage well area.
• A person is not to “apply liquid manure from a confinement feeding operation on land located within seven hundred fifty feet from a residence not owned by the title holder of the land, a commercial enterprise, a bona fide religious institution, an educational institution, or a public use area.”  An exception is provided where waivers are obtained. Further, Section 21 allows the application of liquid manure within the separation distance if “injected into the soil or incorporated within the soil not later than twenty-four hours from the original application…;” the titleholder of the land benefiting from the separation distance requirement executes a written waiver; the liquid manure originates from a “small animal feeding operation;” or the liquid manure is applied by center pivot irrigation with discharge not more than nine feet above the soil, the spray irrigation “disperses manure through an orifice at a rate of not more than twenty-five pounds per square inch” and the liquid manure is not applied within 250 feet from a residence not owned by the title holder of the land, a commercial enterprise, a bona fide religious institution, educational institution or a public use area.
• The minimum separation distances for animal feeding operation structures after December 31, 1998 and for the expansion of structures constructed on or after January 1, 1999 between an animal feeding operation structure and a residence not owned by the owner of the animal feeding operation or a commercial enterprise, bona fide religious institution or an educational institution have been changed as shown in Table 1.

Table 1. Minimum separation distances after December 31, 1998.  The figures in parentheses are for the period prior to January 1, 1999.

As shown in Table 2, no change was made in separation distances for animal feeding operation structures for construction on or after May 31, 1995, to the expansion of structures constructed on or after May 31, 1995, and to the expansion of structures constructed prior to May 31, 1995, as to the separation distance required between animal feeding operation structures and a public use area, a residence not owned by the owner of the animal feeding operation, a commercial enterprise, a bona fide religious institution or an educational institution located within the corporate limits of a city.

Table 2. Minimum separation distances on or after May 31, 1995.  The figures in parenthesis are for the period prior to May 31, 1995.

• The 1998 legislation contains, in Section 27, rules on when two facilities should be treated as separate operations.

Manure management plans

Section 30 of the 1998 amendments modifies the rules on submission of manure management plans—

• The legislation requires manure management plans to be submitted—(a) by the owner of a confinement feeding operation, other than a “small animal feeding operation,” if the operation was constructed after May 31, 1985; (b) the owner of a confinement feeding operation if the operation is required to be built pursuant to a state permit under Iowa Code § 455B.200A; or (c) a person who applies manure from a confinement feeding operation, other than a small animal feeding operation, which is located in another state if the manure is applied on land located in this state.
• A person is not to remove manure from a manure management structure which is part of a confinement feeding operation for which a manure management plan is required unless a manure management plan has been approved.  Manure management plans are to be approved or disapproved within 60 days of the date a completed plan is received by the DNR.

Permits

Under Section 26 of the 1998 legislation, permits are required for the construction or expansion of animal feeding operation structures other than those involving small animal feeding operations.  An applicant must also submit the indemnity fee and a manure management plan.

For the construction of three or more animal feeding operation structures, the applicant must file a statement approved by a registered professional engineer certifying that the construction will not impede the drainage through established drainage tile lines which cross property boundary lines unless measures are taken to reestablish the drainage prior to completion of construction.

DNR is to notify the County Board of Supervisors of the county where a confinement feeding operation or related animal feeding operation structure subject to a construction permit is proposed to be built.  The notice is to state the department’s decision to approve or disapprove the application.  The County Board of Supervisors may contest the decision by demanding a hearing.

A permit is not to be issued for five years after the date of the last violation committed by a person or confinement feeding operation in which the person holds a controlling interest.

Complaints

The 1998 amendments, in Section 11, provide a procedure for complaints, investigations and enforcement actions.

• A person may file a complaint alleging that an animal feeding operation is in violation of the Iowa statute or regulations or the federal environmental rules enforced by the State of Iowa.  The complaint may be filed with DNR or the County Board of Supervisors (the County Auditor can accept complaints on behalf of the Board of Supervisors).
• For complaints received by the County Board of Supervisors, the board is to conduct a review “to determine if the allegation contained in the complaint constitutes a violation, without investigating whether the facts supporting the allegation are true or untrue.”  (It is not completely clear how the board is to determine whether a violation has occurred without determining whether the facts are true or untrue).
• If the board determines that the allegation does not constitute a violation, the board is to notify the complainant, the animal feeding operation in question and the DNR.
• In the event the board determines that the allegation constitutes a violation, the complaint is to be forwarded to the DNR which is to investigate the complaint “if the department determines that the complaint is legally sufficient and an investigation is justified.”  Complaints can also be filed directly with the DNR.
• The County Board of Supervisors may designate a county employee to accompany a DNR official during the investigation of a confinement feeding operation.  The county employee has the same right of access to the premises as the DNR official.
• Upon completion of an investigation, the department is to notify the complainant of the results of the investigation including any anticipated, pending or completed enforcement action arising from the investigation.  Both the County Board of Supervisors and the animal feeding operation are to receive a copy of the notice of results of the investigation.

Fees

The 1998 legislation, in Section 4, increased the indemnity fees assessed upon permittees—

• For confinement feeding operations with an animal weight capacity of less than 625,000 pounds, the fees are increased (a) from five to ten cents per animal unit for all animals other than poultry; (b) the fee for poultry has been increased from two to four cents per animal unit capacity.
• For confinement feeding operations with an animal weight capacity of 625,000 pounds or more but less than 1,250,000 pounds, the fees are increased (a) from seven and one-half cents to fifteen cents per animal unit for all animals other than poultry; (b) for poultry, the fee is increased from three to six cents per animal unit.
• For confinement feeding operations with an animal weight capacity of 1,250,000 pounds or more, the fee is increased (a) from 10 to 20 cents per animal unit of capacity; (b) for poultry, the fee increase is from four to eight cents per animal unit of capacity.

  Those required to submit a manure management plan but are not required to obtain a construction permit are to pay a fee of 10 cents per animal unit of capacity for confinement feeding operations (Section 5 of the Act).

  A county acquiring real estate containing a manure storage structure following nonpayment of taxes may make a claim against the indemnity fund for cleanup costs incurred by the county.

  Amounts above $3,000,000 in the fund as of June 30 of each year are to be deposited in the “organic nutrient management fund.”  If the fund is less than $1,000,000 the Executive Council is empowered to allocate moneys from the general fund of the state “in an amount necessary to support the fund.”

Moratorium on earthen structures

The 1998 legislation does not impose a moratorium on earthen structures as had been discussed.

Effective dates

Several provisions in the legislation take effect upon enactment, which is May 21, 1998.  Among those provisions are—(a) limitations on county legislation, (b) rules applicable to habitual violators and (c) the revised provisions providing for protection from nuisance suits.

Other provisions are effective January 1, 1999, including (a) provisions on investigation and enforcement, (b) revised distance separation requirements, (c) rules on submission of manure management plans and (d) revised rules on manure applicator certification.

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