COMMISSIONERS MINUTES                               OCTOBER 13, 2005

 

The Elmore County Commissioners met on the above date in the upstairs courtroom of the Elmore County Courthouse, 150 South 4^th East, Mountain Home, ID 83647.

 

The purpose of the meeting was to hold a public hearing on an Ordinance defining and establishing confined animal feeding operations (CAFO’s).

 

Present at the hearing were Chairman Larry Rose, Commissioners Mary Egusquiza and Connie Cruser.  Also present was Prosecutor Kristina Schindele and Deputy Clerk Barbara Steele.

 

The public hearing was called to order by Chairman Rose, who limited the testimony to four minutes per person speaking.  He also asked if there were any groups, would they please have one spokesman speak on their behalf.

 

Chairman Rose read off the sign up sheet:

 

Nick Nettleton, 18582 Wilson Road, Glenns Ferry, Idaho, appeared and made some procedural suggestions on page 3 of the final draft. He commented a good job had been done but the defining numbers for other species such as fish, turkeys, emu’s, etc are not listed.  Also the definition of CAFO FACILITY AREA needs to be reinstated.  CAFO FACILITY AREA is listed throughout the Ordinance.  CAFO FACILITY AREA defined in the Ordinance really gives you a hard line of the facility area for setback reasons.   

 

Chairman Rose stated the Commissioners had asked Marv Patton from the Department of Agriculture, and John Chatburn to appear to answer any questions or clarify any statements.

 

K.C. Duerig, 4199 N. Meridian, King Hill, ID, appeared and stated on page 3 the definition should say 90 consecutive days, the clean water act states a 45 day period.  Page 10, item 10, we have “Composting under the supervision of the Idaho State Department of Agriculture may be an acceptable alternative to land application or any other responsible State agencies”   Mr. Duerig said he thinks it should read “Composting under the supervision of Idaho State Department of Agriculture or any other responsible State agencies may be an acceptable alternative to land application.”  On page 11, item number 2, you might consider adding in the Orchard Training Range for consideration along with the Air Force Base.   Chairman Rose asked Mr. Duerig to go into more detail. Mr. Duerig stated that one of the things that is coming up at Planning and Zoning Commission meetings is we are not giving the same consideration to the Orchard Training Range as we are to the Air Force Base.  Mr. Duerig stated he did not know if it pertains to this issue but maybe it should be a consideration. On page 12, number 5, our proposed ordinance has a 1 ½ mile setback, Mr. Duerig would like to have it read 2 miles.  Page 15, number 10, Mr. Duerig would like to see swine or poultry taken out of the sentence which reads: “The setbacks contained herein shall not apply to Land Application, except that Animal Waste from swine and poultry CAFO Facility Area shall not be land applied within a minimum of one (1) mile of a residence not part of the Expanding CAFO or owned, occupied or leased by the owner of the Expanding CAFO.”

 

Carol Klemmer, did not wish to speak.

 

Tracy Lauric, P.O. 876, Mtn Home, Id, stated on page 17, item F., for all CAFO facilities you are requiring liability insurance, according to IDAPA Rule 58.01.09 on page 7 of that document the CAFO facility is required to post a bond.  You are in conflict with the requirements.  Liability insurance policies have amendments, exclusions and revisions and if the facility is not providing the County with these items the CAFO may not be covered for problems.  If the CAFO will be expanded then the bond would need to be increased.

 

Cashia Brown, 816 Hamilton Road, Mountain Home was next and wanted to know if the Commissioners had any questions on the information she had submitted.  The Commissioners stated they had just received the information and will review it.

 

Richard Appleton, 2700 West 36^th South, Mountain Home, stated his concern was the bonding issue.  Liability insurance may or may not cover a problem, a bond would.

 

Dave Bergh, 6025 Highway 30, Mountain Home, appeared before the board.  Mr. Bergh submitted a letter and also read the letter into the record:

 

Comments for Oct. 13, CAFO Ordinance Public Hearing.

 

My name is Dave Bergh and I am speaking on behalf of the Elmore County Agri-Business Coalition Inc.  We are a diverse group of ag producers, ranchers, dairymen and businessmen within Elmore County as well as other areas around the state.

 

I would like to start by making a few comments about this review process in general and then I will address the draft ordinance itself.

 

First of all let me start by saying how much time and effort have gone into this draft but also our current ordinance.  A committee of Planning and Zoning members from Elmore County derived the current ordinance over a period of years.  It was not a hastily drafted document.  This committee reviewed many CAFO Ordinances already in place in surrounding counties to see what was working and what needed to be changed.  The end result was a very good ordinance that was a compilation of the best parts of all of these existing ordinances.  The current review process also has taken a lot of time and effort on the part of a number of different people.  Individuals on both sides of this issue have spend 4 hours every other Monday for the past 3 ½ months in the commissioner’s room going over this draft line by line.  We also have received input from members of the ISDA as well as other sources from around the county and state.  I think that most of us emerged from this process with a much better understanding of how these facilities are regulated both prior to construction and during actual operation.  We realize that to incorporate most of the changes suggested during this review process would have been redundant as the ISDA or other government agencies were already regulating that particular area.  This would have also placed an unreasonable burden on our county resources due to lack of manpower and expertise to monitor many of these areas.

 

The Idaho State Department of Agriculture and Elmore County already have a thorough process in place that insures that a CAFO will not be located in an inappropriate area within our county.  The Idaho State Dept. of Agriculture at the request of the County Commissioners will assemble a site advisory team made up of individuals from the ISDA, DEQ and IDWR.  Each entity does a thorough evaluation of the pertinent information contained in the application and then performs a physical inspection of the site.  They subsequently issue a low, moderate, or high risk rating as well as a description of the factors contributing to the rating and any possible mitigation action that can be taken.  This procedure plus the restrictions contained in our current ordinance insures that a new facility will be located in an appropriate area.  Our current Elmore County CAFO Ordinance is quite restrictive in where it will allow a facility to locate in relations to urban areas, city area of impact, subdivisions, air base hazard zone, bodies of water, flood plains, aquifer recharge groundwater overlay areas, etc.  The draft ordinance is more restrictive in some of these areas giving residents of the county an even larger setback than before.

 

To a certain extent the issue of CAFO locations within Elmore County is self-policing.  We simply do not have all the requirements that a dairy needs in many areas of the county.  They need irrigated acreage relatively close by and they need good quality ground water in adequate supplies to meet their needs.  Many of the areas within our county are dry grazing land and are not suitable for CAFO facilities.  Other areas lack adequate ground water resources.  In many areas where we have the required resources the current ordinance precludes locating a CAFO due to buffer zones and setback restrictions such as along the Snake River and near municipalities.  To compare what has happened in other parts of the state with the situation in Elmore County is to ignore the facts.  We will never be able to develop even a tiny fraction of the facilities that the Magic Valley has.

 

With regard to this draft ordinance we feel that it is a good document overall.  Most of the changes with a couple of exceptions have been minor clarifications as well as some definitions being added.

 

One major change we have agreed to is an increase in the setback requirement for the city of area of impact from 1.5 miles to 2 miles.  This was done to be consistent with the 2-mile buffer already in place around the air force base known as the air base hazard zone.  We felt this was a reasonable and just decision that we would support.

 

Another change that we support is the inclusion of a more lenient time frame for completion of these facilities.  These projects are complicated and time consuming with many pieces of the puzzle having to come together in the proper order to allow for the completion of the project.  The transfer of a water right alone can take up to a full year.  This change is appropriate in light of the fact that other development projects within our county such as subdivisions have no time limit at all for completion.

 

Things that we would like to see added or changed:

 

Under CAFO Definition: Page 3 (existing ordinance contains this language)

Land application sites are not considered to be part of the CAFO.  Areas or parcels of land are deemed contiguous when separated by county roads.  Areas or parcels of land also are deemed contiguous if they are not adjacent, but are not owned or operated by a CAFO operator and a pipeline exsits which is capable of conveying Process Wastewater to the non-adjacent land.  The CAFO only pertains to the area containing CAFO Improvements.

 

Replace V, A,. 9 with: (on page 10)

All land, owned or leased and operated by the CAFO upon which animal waste will be applied shall have a Nutrient Management Plan.

 

One change that we cannot support is the increase in the setback requirement around the air base hazard zone from 2 to 2.5 miles.  We feel this change was an arbitrary distance and there was no justification given for this increase.  In addition this change was made after the public notice was posted for this hearing which does not give the affected landowner adequate opportunity to comment.  A secondary concern is that over time this would become a defacto increase in the air base hazard zone, which contains very restrictive land use stipulations.  This would put an undue burden on these landowners, many of whom already have very limited options from a land use standpoint.  We feel that the existing 2-mile buffer is adequate is this case and should not be changed.

 

The remaining changes in this draft are relatively minor in nature and I believe that we are agreeable to the draft as written other than the aforementioned concerns.

 

In closing I would like to say that Elmore County has expended a considerable amount of time and effort to encourage the dairy industry to locate in our area for a number of years now.  We need to maintain an ordinance that will allow the location of CAFO’s in appropriate areas of the county.  To do otherwise would go against our own 2004 Comprehensive Growth and Development Plan which stated on page 31 paragraph 1: “Elmore County should: Adopt a Confined Animal Feeding Operation (CAFO) ordinance to facilitate dairy development and intensive agriculture within appropriate areas of Elmore County”.

 

Thank you for the opportunity to comment on this issue.

 

Chairman Rose asked Marv Patton if there was anything he wanted to add.  Mr. Patton came forward and reviewed the ordinance and stating some clarity was needed.  One of his concerns had already been addressed: CAFO FACILITY AREA is used throughout the document but is not defined.  Commissioner Egusquiza asked if he meant new or existing CAFO FACILITY AREA and Mr. Patton replied both.  Commissioner Egusquiza stated that definition was taken out per a meeting they had attended at Idaho Association of Counties and the Commissioners thought it was defined in a definition of a CAFO.  Commissioner Egusquiza stated they would need to put that back in.    Mr. Patton continued - on page 3, the definition of ANIMAL WASTE MANAGEMENT SYSTEM reads: Any structure or system that provides for the collection, treatment, storage or utilization of Animal Waste.  He felt the word “utilization” of the animal waste would also include land application.  Animal waste has been defined but utilization would also include application.  As you go through document for example, bottom of page 4 the definition of EXPANDING CAFO: An existing CAFO that (1) Cumulatively increases its One-Time Animal Capacity by ten (10) percent or 150 animals whichever is less, or (2) An existing CAFO that increases the capacity of its Animal Waste Management System. He believes if a producer bought 50 acres to produce hay, and applied animal nutrient to that new 50 acres of hay ground, that would be an expanding CAFO under the definition.  He just added an additional animal waste system due to the utilization of the animal waste.  It changes the thought process throughout the whole document.  He recommends to have that checked legally.  Also, under the DEAD ANIMALS definition which reads: Carcasses, parts of carcasses, or tissues from dead animals, including domesticated livestock, sheep, goats, poultry, pets and commercial fish.  He questioned whether the Board wanted pets included.  He suggested under the definition MATERIAL CHANGE on page 5, if you start talking about an expanding cafo, what would be a  material change. He suggested that needs to be clarified.  He commented further on how radical does the change need to be before it’s a material change?  The registration process for existing CAFOs reads page 7, number 8: A valid stockwater right permit or license from the State of Idaho.  He suggested to make it more inclusive and just say valid water right.  CAFO Siting Permit required was discussed.  Mr. Patton stated it was unclear to him about the operation, construction, etc. Commissioner Rose stated he thought that was defined under the definitions. It was stated that the County can be more restrictive than State.  Mr. Patton stated that certain operations had different operating practices. There are different types of land applications now and distances (setbacks) might not be a factor for certain operations.  Commissioner Rose felt that would be covered under variances.  Mr. Patton stated that on page 16, number 11 under CAFO OPERATION PERMIT REQUIRED it reads: Prior to the use of the new CAFO, the new portion of an Expanding CAFO, or making material changes in any CAFO, a CAFO Operation Permit is required.   Mr. Patton feels if an operator has to make some changes required by the State it could be an issue.  The Commissioners thanked Mr. Patton.

 

Dave Hoagland, 6950 West 36^th South, thanked the Commissioners for taking their time on this issue.  He commented on the bombing range, and that the military can do whatever they want on the bombing range including putting in a housing area, or moving soldiers out there any time.  He stated that Cashia Brown has already turned in their paperwork

 

John Steiner - 24597 Collect Road, Oreana, Idaho.  Mr. Steiner thinks it is good document and the County is on track.  He doesn’t see why the concerns that have been discussed can’t be worked out.  He told the Commissioners they were doing a good job.

 

Barry Peterson, 1111 Poplar Drive, Mountain Home, Commented on the historical nature of why this is such a hot issue at this time.  The community put forth an effort 15 years ago when the base almost closed to bring in some kind of economic growth.  Mr. Peterson stated that dairies where promoted to come to Elmore County.  He stated that a dairy is a great opportunity to enhance capital wealth.    Mr. Peterson stated that Walmart drains wealth from the area, all of their profits do not stay in the County.  We need capital assets in our area and it is nice that the Commissioners are working to try to do it in such a way that is has an appropriate place in our society and we can enjoy the benefits of the assets and enjoy a high standard of life.

 

Stephanie Bergh - Did not wish to speak.

 

Ron Parks, 2207 Fairwood Drive, Meridian, Idaho, representing JR Simplot Company - Mr. Parks thinks the original ordinance is good and that a lot of time was spent on it.  The CAFO FACILITY AREA needs to be changed to insert animal numbers from the EPA CAFO rule.  Commissioner Egusquiza asked about the information the Commissioners had received from IAC (Idaho Association of Counties) regarding the change of the animal units.  Mr. Parks said the animal units were published Feb 12, 2003 in the federal register and is what all the states have adopted.  He said he would leave the publication with them. Chairman Rose stated they used numbers versus animal units.  Mr. Patton stated to utilize what the EPA utilizes under the clean water act.  Mr. Parks agrees with Mr. Pattons’ recommendation to remove the word utilization under the definition of Animal Waste Management System on page 3.   He stated to the Commissioners that they have already heard the reason to use 90 days in place of 45 days for calving reasons.  In section 5, letter A, number 9, page 10, talks about “If the Applicant does not have adequate area for land application of animal wastes, the Applicant shall provide proof of legal contracts with other parties for disposition of the animal waste.  All land upon which animal waste will be applied shall be part of the Nutrient Management Plan”.  Mr. Parks stated  there are 2 problems with that paragraph, the legal contract that might be there today could go away tomorrow, and the applicant would have to come back before commission for new conditional use permit because they won’t have the contracts with those individuals anymore.  Second, the CAFO cannot have a nutrient management plan for land other than what they operate.  We do not have the right to the information regarding the production numbers to that farm.    The definition he recommends is: “all land owned, or leased and operated by the CAFO upon which animal waste will be applied shall have a nutrient management plan”.  Discussion followed on third party recipient animal waste and that it is not regulated.  Mr. Parks stated third party recipients of animal waste are not regulated and the CAFO operator cannot include that land in his plan, he does not have the information necessary, it is confidential information.   Commissioner Rose call Mr. Patton to clarify this for the Commissioners.  Mr. Patton came forward and explained that dairy farms are treated some what differently than non dairy livestock operations under Idaho code.  The code requires that dairyman must show the individual, the amount of acres, to whom they export nutrients, dairy waste, which is also a requirement in the nutrient management plan.  There is also a record keeping requirement in addition to the nutrient management plan.. 

 

In a short period of time the federal EPA requirement will have the operator track the amount, when and who it goes to.  Mr. Parks stated he stood corrected on the dairies.  Mr. Parks stated in 2006 all CAFO’s will have to track where the manure goes but they won’t have any control over how it is used.  Discussion followed on this issue. Mr. Patton stated the requirements will change when the new NPDS permit comes out it, and will require exported nutrient testing to third parties.   Applying the nutrients to the soil was discussed.  Landowners applying these nutrients normally are careful as it is their livelihood.    Mr. Parks stated on page 17 it reads “For all CAFO facilities managing liquid waste continued proof of liability insurance shall be submitted to the County annually”.  Liquid waste is not defined.  That can be a number of different things.  Mr. Parks stated he had received two documents one that was published and one that has hand written notes on it.  Which one is correct.  The Commissioners stated the one with no hand written additions is the correct one.  Commissioner Rose stated the Ordinance was not published, the publication stated you could pick up a copy of the Ordinance in the Recorder’s office.

 

Commissioner Cruser asked a question on the bonding, that it only applies to chickens and pigs but  couldn’t you require it on anything?  Mr. Parks stated it was strictly a clarification that someone else had made of the IDAPA rules, that they require a bond not insurance, but that bond is strictly for pigs and chicks.  You could require a bond if you want, but it needs to state what the County is requiring a bond for beyond liquid.

 

Bill Richey, 2905 E. 42^nd S., Mountain Home, stated he was the Governors Special Assistant for Military Affairs which job is to promote and protect Mountain Home Air Force Base.  He told the Commissioners they had done an excellent job keeping the Air Force Base in mind with the 2 ½ mile setback from the Air Force Base.  He considers Mountain Home Air Force Base a city.   Commissioner Cruser asked Mr. Richey about the bombing range.  He stated he would have to check with the Army Guard, it is BLM (Bureau of Land Management) land designated as a training range for the National Guard, the issue of whether they could build houses would have to go through many different steps.  There might be a need for a setback, he would check and get back to the Board.

 

Mr. Peterson commented that the training range is in the National Birds of Prey, managed by BLM.  He does think it would ever become residential.   

 

Richard Appleton asked he could speak again.  He stated that regarding all cases- Federal Government, State and County, the County can always add to the state, but cannot subtract from the state rules and regulations, the state can add to, but not subtract from the Federal rules and regulations.  He believes it is a good thing to request nutrient management plans from the individuals receiving the third party manure.

 

K.C. Duerig, stated he would like to make a comment on the same subject, in the current ordinance it states “that the land where it is being applied shall have a nutrient management plan” It does not say that the operator has to have one.  We have to have one for the CAFO facility area and for the land it is being applied on. 

 

Marv Patton appeared and said the Department of Agriculture does not have the authority to write a nutrient management plan for a third party and if we added this, the County would have to write them, approve them and enforce them.  Chairman Rose stated the County does not have the manpower or expertise to do more than what the state or federal government requires.  The County might be able to enforce them, but wouldn’t have the expertise to know when a mistake is being made. We have to rely on the State or Federal Government agencies for that.   

 

Dave Hoagland spoke again and stated that the responsibility of the County Commissioners is to protect everybody in the County, so if we need the nutrient plan to protect the County residents than someone will have to step up and do something because if the state won’t do it, someone has to.  He told the Commissioners as Elected Officials that they were obligated to protect everyone in this room, and they couldn’t let something like this go.

 

Mike Grimmett, 2645 East 18^th South, Mountain Home, President of the Elmore County Agri-Business Coalition, stated that the one point that concerns him is the two and half mile setback around the air base, if that was adopted it would be the taking of land from those farmers in that area, they have the right to earn a living and to use their operations as they see fit, they already give up an “X” amount of acres already and if you extend that by a half a mile that will be thousands and thousand of acres being taken away from an industry that is already struggling to survive.