AgDM newsletter article, July 1998

Confinement livestock legislation

Neil Harl 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 -

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.

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.”

Separation distances

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

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

Minimum separation distance for animal weight capacity of less than 625,000 pounds for other than bovine or less than 1,600,000 for bovine.

Minimum separation distance for animal weight capacity of 625,000 but less than 1,250,000 for other than bovine; 1,600,000 or more but less than 4,000,000 for bovine.

Minimum separation distance for animal weight capacity of 1,250,000 pounds or more for other than bovine or 4,000,000 pounds or more for bovine.

Anaerobic lagoon

1250
(1250)

1875
(1875)

2500
(2500)

Uncovered earthen manure storage basin

1250
(1250)

1875
(1875)

2500
(2500)

Uncovered formed manure storage structure

1250
(1000)

1500
(1500)

2000
(2000)

Covered earthen manure storage basin

1000
(750)

1250
(1000)

1875
(1500)

Covered formed manure storage structure

1000
(750)

1250
(1000)

1875
(1500)

Confinement building

1000
(750)

1250
(1000)

1875
(1500)

Egg washwater storage structure

750
(750)

1000
(1000)

1500
(1500)

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.

 

Minimum separation distance for animal weight capacity of less than 625,000 pounds for other than bovine or less than 1,600,000 for bovine.

Minimum separation distance for animal weight capacity of 625,000 but less than 1,250,000 for other than bovine; 1,600,000 or more but less than 4,000,000 for bovine.

Minimum separation distance for animal weight capacity of 1,250,000 pounds or more for other than bovine or 4,000,000 pounds or more for bovine.

 

1250
(1250)

1875
(1875)

2500
(2500)

Manure management plans

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

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.

Fees

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

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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