ISDA and ILRC Repeat Dismal Performance

Good News/Bad News re the State's "Model" CAFO Ordinances

February 17, 2007

by Joe Miller

On January 18 I sent you an alert about three "model" agricultural zoning ordinances created by the Indiana Land Resources Council (ILRC) and posted on the Indiana State Department of Agriculture (ISDA) website. Each of the ordinances takes a different approach to the siting of CAFOs. The ILRC and ISDA describe the model ordinances as tools that local governments can use "to plan their community's land use," and note that "they will not be required by law."

I also noted in my alert that the ILRC and ISDA would hold three "listening sessions" to get public input on the ordinances in Noblesville, Goshen, and Scottsburg on January 17, 18, and 22; that public input on the ordinances would be accepted by ISDA until midnight, January 22; and that a final decision on the ordinances would be made by the ILRC at its meeting on January 31.

At the time I expressed my outrage at the incredibly compressed time-line -- announce the process on the 9th, initiate "listening sessions" on the 17th, close off public input on the 22nd, make a final decision on the 31st -- and noted that the time-line was undemocratic and precluded responsible review. I also suggested that the whole strategy to create and promote "model" agricultural/ CAFO ordinances was an attempt by ISDA and ILRC to provide the legislative "tools" to supporters of CAFOs (local officials, industry representatives, etc.) to make as many Indiana counties CAFO friendly as possible, and an attempt to meet Mitch Daniels' goal of doubling pork production in Indiana.

The complete text of my January 18 alert (1) is available at the St. Joe Valley Greens' website, as is Kathleen Neal's excellent critique (2) of the ILRC's three "model" agricultural/CAFO zoning ordinances.

(1) http://www.sjvgreens.org/current/doublePork.shtml
(2) http://www.sjvgreens.org/current/ilrcModels.shtml

First, the good news!

Even given the compressed comment period, ISDA and the ILRC received so many critical and negative comments about the "model" ordinances and short time-line, they decided that additional clarifications and revisions were necessary, and not to make a final decision on January 31. A summary of the comments from the listening sessions is available (3) althouth it's not clear whether the summary also includes the comments received via email. And ISDA/ILRC's ranking of the comments and proposed strategies for addressing the comments are available (4).

(3) http://www.in.gov/isda/modelordinances/Summary_of_Comments.pdf
(4) www.in.gov/isda/modelordinances/Summary_of_Comments_powerpoint.pdf

Comments grouped according to the nature of the concern related to inadequacies of the process, environmental issues, animal welfare, economic issues, and land use and zoning. Comments based upon ranking included water quality concerns, the necessity of a public hearing for all proposed CFOs and CAFOs, need for increased setbacks from residences and residential districts, protection of a landowner's right to sell property as he/she sees fit, and protection of a citizen's right to sue based upon nuisance.

Now the bad news!

The ISDA and ILRC are repeating the same rushed, flawed process!

At 2:47 Friday afternoon, Feb. 16, I received a news release from ISDA with this lead paragraph: "Hoosiers get another look at the Indiana Land Resources Council's recommended model land-use ordinances. On Feb. 27, the Council will finalize their recommendations. Before they do so, the Council encourages the public to review the information again."

Here's a link to the "another look" opportunity posted on the ISDA website (5).

http://www.in.gov/isda/modelordinances/index.html

But here's the kicker! Any comments we would like to submit based upon our review or re-review of the ordinances must "be emailed to sasimpson@isda.in.gov or mailed to the Indiana State Department of Agriculture, 101 W. Ohio St., Suite 1200, Indianapolis, IN, 46204... and be received by 5 p.m. Feb. 26."

Here we go again! Announce the process on the 16th, close off public comment on the 26th, issue a final decision on the 27th. The second round is even more outrageous than the first!

In closing, please whip off an email or letter to ISDA and ILRC and tell them exactly what you think of their process and ordinances.

Several of you have asked me how the Indiana Land Resources Council's 3 model ordinances compare to the new proposed CAFO ordinance for St. Joseph County. I apologize for the lateness of this information, but I have had great difficulty accessing the actual model ordinances instead of just a neat summary. Anyway, here are my conclusions.

Weaknesses of ILRC/State Models

1. Lack public health approach

The state's proposed model ordinances are all land-use ordinances, unlike the SJC ordinance which is a public health ordinance.

2. Not based on science

The model ordinances are based on 3 guiding principles: odor control, reciprocal separation distances so that residences are not built too close to CAFOs and CFOs, and agricultural clauses to be included in property deeds so that future residents may not contest agricultural operations in their community.

The SJC ordinance is principally based on scientific findings regarding the public health effects of hydrogen sulfide emissions and the potential release of contaminants into public waterways, and is not based on odors.

3. Do not account for size of CAFO

None of the model ordinances provide any consideration for the size of the CAFO. In other words, a "small" CAFO of 700 cows, for example, would receive the same considerations, setbacks, requirements as a much larger CAFO of, say, 8,000 or 10,000 cows.

The SJC ordinance is tiered based on CAFO size.

4. Ignore water features

None of the model ordinances provide for setbacks from water features, such as off-site wells, waters of the state, county drains, etc.

The SJC ordinance specifies setbacks from water features.

5. Fail to address design and operational requirements

None of the model ordinances address design requirements, such as lagoon liners, or operational requirements, such as site maintenance, manure application, disposal of dead animals, etc.

All of these issues are addressed in the SJC ordinance.

6. Too broad grandfathering

All 3 of the model ordinances grandfather existing CAFOs, and allow for unlimited expansion of existing CAFOs.

The SJC ordinance grandfathers existing CAFOs, but expansions of existing CAFOs must comply with all aspects of the ordinance.

7. Static setbacks

All 3 of the model ordinances establish some level of residential setbacks, generally between 600' and 900' from the waste management system, regardless of the size of the operation.

Setbacks in the SJC ordinance begin at 800' for the very smallest CAFO and go up to 10,000'.

Mutually Exclusive Approaches

The ILRC model ordinances exemplify three very different approaches to agricultural land use and are mutually exclusive.

Multiple agricultural districts
Site scoring system
Limited use with development standards

Multiple Agricultural Districts

The first model is "Multiple Agricultural Districts." This is what is currently in effect in Elkhart Co. Under this approach a county would perform a thorough assessment of all of its agriculturally zoned land and divide that land into three distinct categories:

1. General agriculture

General Agriculture would include land that is dedicated to long-term agricultural use. Any CFO or CAFO development there would require a "special use" permit from the county. Similarly, any residential development in this category that is not strictly for farm use would also require a "special use" permit from the county, and could not be built closer than 750' from a CAFO's waste management system. All residential development would require the property owners to sign an agricultural clause which would be attached to the deed and would waive any current or future property owner's rights to contest nearby CAFOs.

2. Intensive agriculture

Land designated as "Intensive Agriculture" would be set aside for just that. Residential development would be restricted the same as in "General Agriculture" areas, but here all CAFOs and CFOs would automatically be approved as permitted uses, not requiring hearings or special use permits, except that they would be required to be no closer than 800' from a residentially zoned district.

3. Rural estate

The third category of agricultural land under this approach is "Rural Estate". Residential development would not require a special permit in these areas, and new CFOs and CAFOs would not be allowed to locate here.

Site Scoring System

The second model is based on a "Site Scoring System" to determine where CAFOs and CFOs could locate. Under this approach, a proposed CAFO would not be subject to a public hearing, but would undergo an objective assessment by the local plan commission based on specific criteria.

This model includes recommended setbacks of 600' for residences and 1000' for public, religious and educational use. But these are only recommendations; smaller setbacks would be allowed, but given a lower score. Other scoring criteria include, among other things, expected tax revenues, measures to reduce water use, adequate truck turnarounds, odor abatement measures, and manure application methods. The plan commission would add up the total number of points that a proposed operation would qualify for under this system, and the score would either meet the threshold and qualify, or not.

Any non-farm residential development in an agricultural zone would be restricted and would have an agricultural waiver clause attached to the deed.

Limited Use with Development Standards

The third model is "Limited Use with Development Standards." Again, this approach steers away from special use and specifies that no CAFO will be subject to public hearings. Instead, it requires the CAFO operator to comply with county drainage rules, to obtain a county sewage permit [where applicable], to submit a route plan to the county engineer. It requires CAFOs in floodplains to obtain a certification from FEMA or to build their structures 2 feet above the base flood elevation. It requires a 100' foot setback from the property line and roadways. And it specifies that the maximum residential setback that the county can impose upon a CAFO would be 900' [1000' from a residential zoning district]. These maximum setbacks can be further reduced based on specific odor control technologies. Any non-farm residential development in an agricultural zone would be restricted and would have an agricultural waiver clause attached to the deed.

Resources

Links in Article

St. Joe Valley Greens, South Bend, IN

SJVGreens