One person veto: Livestock operation shelves plans for expansion after opposition

Nebraska's largest feedlot, Adams Land & Cattle, with a capacity for 120,000 cattle is located two miles south of Broken Bow. Russell Adams Jr., the founder of Adams Land & Cattle, grew up on a farm northeast of Broken Bow. In the mid 1950's, Russ began the business of backgrounding cattle for resale at the local auction barns. In 1971, an additional 1,063 acres of land four miles south of Broken Bow was purchased, and a one-time capacity for backgrounding around 8,000 calves was developed.

Buffalo County livestock producer Cory Banzhaf of C Lazy B Cattle near Pleasanton, knows the frustrations of expanding a livestock operation under local laws.

He wanted to move from a Class II operation that allows him to have up to 2,500 head on site at a time to a Class III, which allows from 2,500 to 10,000 head.

"The way the Buffalo County zoning code is written you must reach out to every surface landowner within of a mile of your footprint, and you are required to have 100% consent within that setback to expand," he said.

At the Buffalo County Planning Commission's April 20 meeting, Banzhaf appeared with Craig Bennett of Miller and Associates of Kearney to request a code amendment to create a Class IIA that would cover operations from 2,501 up to 5,000 or 7,500 animals with a three-quarter mile setback instead of a 1 mile setback.

Bennett noted that Buffalo County's regulations, when compared to neighboring Dawson, Custer, Sherman, Hall Howard, Kearney, Phelps and Adams counties were too restrictive, according to the zoning commission minutes.

Deputy County Attorney Andrew Hoffmeister reviewed the setback requirements for the commission and noted the applicant would need to have waivers of all residences or surface landowners with those setback areas to proceed with any expansion.

In his case, Banzhaf needed 28 signatures.

"Can one person veto that project? That answer currently is yes," he said.

Alisa Troyer of the Nebraska Department of Agriculture spoke at the hearing as well. She noted the stricter requirements in Buffalo County have meant only two operations have completed successful livestock expansions in the last 10 years. Others have considered Buffalo County, she said, but she believed the restrictions are stifling that growth.

Economic growth is hampered when livestock operations can't expand, proponents noted. They lose sales of equipment and construction material, as well as corn, ethanol by-product, feed and supplements. There's also the matter of tax income and additional employee salaries being spent in the local economy.

Troyer invited the group to the County Leader's Summit hosted by the Nebraska Department of Agriculture (NDA), but conference registrations later showed none attended.

The commission looked at three versions of an amendment to the zoning regulations creating a Class IIA but took no action. Instead, they were tabled to the group's May 18 meeting.

Banzhaf said no action was taken at that meeting either, so he had withdrawn the application and tabled his own plans for expansion.

The livestock industry contributes $11.9 billion to Nebraska's economy, accounting for nearly half of the state's agriculture receipts, according NDA.

In addition, $3.5 billion in grain is consumed annually by Nebraska livestock, supporting corn, soybean and sorghum producers.

With those statistics in mind, the NDA recently conducted the County Leaders Summit for county commissioners, county planning commission members and other civic leaders. Officials shared how expanding livestock operations and locating new ones in their counties can benefit local economies. The summit also gave leaders an idea of how those operations are governed and monitored for public health and safety.

Brad Edeal, livestock compliance supervisor with the Nebraska Department of Environment and Energy (NDEE) discussed livestock permitting requirement during a session on "Who needs a permit?"

In Nebraska Title 130 sets out the state's livestock waste control regulations, which give the NDEE authority to regulate animal feeding operations (AFOs) and concentrated animal feeding operations (CAFOs).

Edeal explained the differences between the two and what constitutes a large, medium or small AFO. In Nebraska large AFOs are 1,000 or more beef cattle or veal calves, 2,500 swine that weigh 55.5 pounds or more, 500 horses, 55,000 turkeys, 125,000 non-laying chickens (no liquid manure system), 5,000 ducks (liquid manure system) 700 mature dairy cows, 10,000 swine less than 55 pounds, 30,000 laying hens or broilers (liquid manure system), 82,000 laying hens (no liquid manure system), 30,000 ducks (no liquid manure system).

Numbers per species decrease moving from medium to small operations, as do the inspection fees, said Edeal. Once an inspection request is made to NDEE preliminary office work is done to verify site ownership, the depth to groundwater and distance to the nearest surface water source.

Then an onsite inspection is conducted followed by a response letter to the producer outlining the controls required for their size of operation and any conditional requirements. In the case of poultry operations most are exempt from Title 130 regulations as their waste is solid litter and they don't have to dig a hole to contain the waste. This applies as long as they don't discharge into waters of the state, Edeal said.

The producer then applies for a permit if controls are required. One key point is to be sure the legal descriptions match what was initial inspected otherwise there will be a delay in processing, he said.

Tied with the permit is development of a nutrient management plan. That document provides a detailed site plan, map and topographical maps, waste production calculations and waste storage sizing, a table listing all land application sites, useable acres, land use, slope, soil type, application agreements, maps with setbacks and buffers included and a host of other nutrient management protocols. This document also provides for an animal mortality management plan.

Once all those requirements are met, the application goes through a 30-day public comment period before construction and operating permits can be issued.

"The certificate of completion needs to be stamped by an engineer if it is defined as a large CAFO, and simply returned for a medium operation. Then a post-construction inspection is required. We stress operators always be cognizant of where wells are located to prevent groundwater contamination," he added. "Once all those reviews are completed an approval to operate is issued."

If the operation is designated as a large CAFO is must also have an NPDES (National Pollutant Discharge Effluent System) permit. Regular record keeping is required, as are pond level readings and land application records. For NPDES permittees, annual reports with land application records, soil, manure and irrigation water analyses are required.

Large CAFOs are inspected by NDEE once every one to three years or more often if needed, medium AFOs once every three to five years, and small operations as needed, or compliance driven.

The state is divided into nine areas with an inspector assigned to each.

"One thing we stress is communication," Edeal said. "It's a lot easier to call us up and say, ‘This is what I want to do, can I do it?’ and have us weigh in. We’re here to work with you, not against you."

Developing or expanding livestock operations also involves working with county planning commissions and county commissioners or supervisors. Sometimes that can be contentious.

Stephen Mossman, an attorney with the Mattson-Ricketts law firm in Lincoln, addressed "Pitchforks and Torches: Nebraska Zoning Matters for Livestock Facilities."

In Nebraska, 88 out of the state's 93 counties have zoning regulations. Mossman reviewed what matters are in a county zoning board's discretion, what is mandated by state statute, and some options for dealing with potential conflicts, particularly as they relate to animal agriculture. A key building block in a county comprehensive plan and zoning is minimum setback requirements, Mossman said.

"Reasonable requirements preclude nuisance complaints," he said.

Mossman cited the example of a 2008 case that went to the Nebraska Supreme Court, "Coffey v. County of Otoe." In that case, Coffey wanted to put a residential development within one-half mile of a hog operation in an agriculturally zoned district. Zoning regulations required an "impact easement" mutually agreed to with the owner of the operation. In this case the owner declined to agree, Coffey applied for a variance, which was also denied.

The District Court upheld the minimum setback requirement, so Coffey appealed to the State Supreme Court, but because the Otoe County easement agreement allowed a landowner to release another from a lawfully imposed restriction, the court found it valid and also spoke approvingly of the minimum setback requirement as a valid exercise of county police power.

As Mossman moved through how counties get zoned, how conditional or special uses may be defined and the processes for obtaining them, he noted that requirements vary widely by county.

Some counties allow expansion of existing livestock operations by a specified number of animals, as long as they meet all NDEE requirements. Others are more restrictive with their regulations.

Barb Bierman Batie can be reached at [email protected].

Daily Ag News and Market information from across the midwest.

Barb is a freelance journalist who grew up near Battle Creek, Nebraska, and now farms row crops with her Platte Valley Farmer, Don Batie, northeast of Lexington. She can be reached at [email protected].

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