Editor's note: This story originally appeared on DTN on May 23. The story was updated the morning of May 24 with new information and clarification.
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LINCOLN, Neb. (DTN) -- Lexington, Oregon, farmers Jake and Lara Neiffer say the delay in the release of rules for a new water-permitting program in the state has put in jeopardy the family's plans for expansion.
The law passed by the Oregon State Legislature, SB85, and signed into law by Democratic Gov. Tina Kotek in July 2023, requires CAFOs to obtain water permits and to track wastewater -- including smaller operations that produce relatively little wastewater.
The state's law has been touted as a tool to reduce pollution from large feedlots and to close a loophole that allowed CAFOs to use drinking water for livestock without a permit or water rights.
About 11 months after the law took effect, however, the state has yet to release program rules.
As a result, farms across the state that have plans to expand livestock production are unable to do so after the state put all CAFO permitting on hold this year.
The delay could be costly.
The Neiffers said on top of the delay, they continue to try to navigate the completion of nutrients-management plans already required by the state.
For their ranch in northern Oregon and for other producers across the state, the delay also jeopardizes the farm's $85,000 investment in a planned chicken meat production expansion.
A planned expansion from about 1,000 to 5,000 birds requires the Neiffers to also create a nutrients-management plan.
CAFO permits in Oregon are required for farms that hold animals in the state's definition of confinement, or collect process wastewater from their farm or processing facility such as from a tank, lagoon and actual reservoirs, or discharge wastes into the waters of the state.
All farmers in Oregon are subject to the ag water quality program even if they don't have CAFO permits. There are no exemptions to the water quality program but new rules coming from the department of ag in June are expected to address small-farm exemptions from automatic requirements to seek CAFO permits.
Farms that violate the ag water quality program could be subject to CAFO licensing regardless of size.
The Neiffers and others like them likely will experience income loss from having to delay expansion plans.
"For us right now it's a timeline thing," Jake Neiffer said.
"We were hoping to be operational by now. We don't raise chickens over the wintertime. So, this sets us back a year and I know there's other producers in the same boat as well. Without SB85 we could have already gotten our CAFO permit."
The broiler season runs from May to October -- meaning the chances of launching the expansion this year have faded.
WATER PERMITS
Lara Neiffer said the permitting process has been frustrating and she questions the need for permits considering the family's operation is small.
Each Oregon CAFO is required to have an individualized animal waste management plan that includes site-specific procedures to ensure permit conditions are met. This is nothing new and has been part of the state CAFO process for years.
To track wastewater some farms will need to install costly drainage systems to comply with the law. The state defines small CAFOs for broiler chickens at less than 9,000 birds.
Lara Neiffer said state-permitting laws fail to account for pasture-based operations that are managed differently than larger CAFO operations.
For perspective, large CAFOs produce anywhere from 20 million to 45 million gallons of wastewater annually -- meaning there is a significant difference in how operations manage nutrients.
"At 5,000 chickens we would be applying approximately 35,000 gallons of wastewater per season," she said.
"For perspective, we apply about 40 million gallons of irrigation water on the same acreage (about 60 acres) over the growing season, so this obviously dwarfs the wastewater generated. The farm acreage can absorb the process wastewater without an afterthought."
PROGRAM RULES
When contacted by DTN, the Oregon Department of Agriculture said the proposed rules for the water-quality program may be filed in June to include a hearing date and a public comment period.
"There are no set timelines for rulemaking, every rulemaking process is unique," said Andrea Cantu-Schomus, director of communications at the Oregon Department of Agriculture.
Oregon Gov. Tina Kotek's press office did not respond to DTN's request for comment.
The Neiffers and other Oregon farmers have been working with Friends of Family Farmers in Oregon.
The group, which has about 1,600 member farmers, is helping them navigate the state's permit requirements for nutrients management. When it comes to SB85, the organization was involved in the drafting of the legislation and is supportive of the changes made.
Alice Morrison, co-director of the group, said the new law is "vital to protecting our natural resources in order to ensure our collective ability to farm in the future."
The state's law goes above and beyond federal regulation of CAFOs under the general permit granted to the state through the National Pollution Discharge Elimination program in the Clean Water Act.
Morrison said, "very small farms" in the state can be asked to get CAFO permits to comply with the ag water quality program if there are water quality concerns from their management "even if they don't rise to the thresholds for permitting in other states who only follow the federal guidelines."
New draft rules coming from the agriculture department in June will explore exemptions for small farms based on animal numbers and management style. Public comment and a public hearing on these rules will be scheduled after they are released.
As a result, she said, the current requirement leads to a "greater diversity" of farms falling into the CAFO program including small farms and pasture-based operations with slaughter and processing facilities on site.
The ongoing delay in releasing water-quality program rules, she said, is unrelated to the law itself.
Morrison said though the bill was signed in July 2023, the rulemaking advisory committee convened in April 2024, for no reason other than "internal ODA processes and decisions" that delayed the program.
"The department decided to put all existing permit applications on hold until the rules could be implemented," she said.
"This delay in implementation put those waiting on a CAFO permit essentially out of commission for a full season because they cannot begin construction or bring new animals on site until the permit process is complete."
Morrison said farms are allowed to operate their existing businesses.
"We do want to acknowledge how hard this has been on some farms stuck in limbo, especially smaller operations without the ability to absorb this kind of setback," she said.
LARGER OPERATIONS
Farms are required to submit land use compatibility statements and to meet new requirements to notify neighbors of those farms.
All farms, however, are required to create a water supply plan that demonstrates a farm's legal access to water.
"Here in Oregon, we have a lot of water laws that don't exist east of the Rockies," Morrison said.
"All operations who grow crops for sale on any scale are required to have a water right attached to the deed of their land saying they have the right to water from a certain source and of a certain amount."
Oregon livestock operations have been operating under a stock water exemption that allows farmers to use domestic well water or surface water for the animals to drink and not to irrigate pasture.
SB 85 placed a cap on stock water usage of 12,000 gallons per day. Farms needing more water above the cap have to prove they have legal access to it.
"This means that folks with more than 222 milking cows, 500 beef cattle, or 58,997 broiler chickens have to prove they have access to water at the site," Morrison said.
"The requirement has not been fleshed out yet from ODA and we have asked for farmer input in that process and to make it as simple as possible by using cross-agency communication with the Oregon Water Resources department to put the burden of verification on the agency, not the farmer."
NEIFFER PETITION DRIVE
Neiffer Ranch launched a petition drive on April 23, 2024, in response to SB85 being signed into law (see https://grassfedfamily.com/…).
The farm has been direct marketing beef and pork since 2010 and currently has about 80 cow-calf pairs and sells about 60 hogs each year.
Those parts of the family's operation aren't considered CAFOs since the animals are processed at USDA facilities and not on the farm. Most farms with CAFO permits in Oregon use USDA processing.
"At this time, we are restricted to only 1,000 until SB85 is finalized and we can only sell if the customer drives to our farm to purchase," Lara Neiffer said.
"We eventually plan to do 20,000 and sell off farm and ship."
The family said it hopes to bring attention to how state laws affect small operations. As of May 23, the petition had 261 signatures.
MOST OREGON FARMS SMALL
At least one national environmental group pushed for and celebrated the law's passage as a much-needed measure to hold larger livestock operations accountable for pollution.
SB85 came about largely as a result of repeated pollution problems and state citations issued at Lost Valley Farm, a 30,000-head dairy in Boardman, Oregon.
The Center for Food Safety in June 2023 issued a public statement applauding SB85 as the first attempt in decades to "address the harms from mega-sized animal factories and their impacts to our critical water supply and public health."
The latest census of agriculture shows the vast majority of livestock operations in Oregon are small.
The vast majority of these farms are not required to get a CAFO permit.
If they are not confining animals, collecting process wastewater from a processing facility or liquid manure management system, or discharging wastes into the waters of the state such as a pasture-based farm with stocking densities appropriate for the amount of land they have, then they are not required to have CAFO permits.
There were 7,817 poultry farms in Oregon in 2022, according to the census.
That includes 7,449 farms with layers, including 6,853 farms that reported having between one and 49 layers -- all producing low volumes of wastewater and considered by any definition to be small CAFOs.
In addition, 684 farms in Oregon produced broilers and other meat-type chickens. However, the census does not provide a breakdown of broiler operations by size.
When it comes to cow-calf operations, 11,699 Oregon farms had 1.2 million pairs on hand in 2022. Just 459 Oregon farms had 500 or more pairs in 2022 -- by federal standards they are medium and large CAFOs. A large CAFO is defined as having 1,000 or more animals and medium CAFOs have between 300 and 999 animals.
Beef cows were produced on 9,811 farms in Oregon as of 2022, which includes 8,371 farms with one to 49 animals.
There were 1,065 Oregon hog farms in 2022, with 1,006 considered to be small CAFOs with between one and 24 animals.
Todd Neeley can be reached at todd.neeley@dtn.com
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