Issues: Water

NEBRASKA

• Nebraska's anti-corporate farming law has kept factory farms to a handful for years, but recently major pork producers have managed to open large new feeding operations.
  
  
• The state's loose interpretation of the Clean Water Act and lax enforcement of water quality allows factory farms to be built in areas where they could pose a pollution threat to groundwater.

While large-scale feedlot operations are a newly emerging problem in Nebraska, the state is already suffering from typical feedlot pollution problems such as odor, heavy land application of nutrients and polluted runoff.¹

Nebraska's anti-corporate farming law, passed in 1982, has managed to discourage many corporations from establishing large-scale farms in the state. The law prohibits a corporation that is not a family farm from engaging in agriculture in Nebraska. To qualify as a family farm under the law, a majority of the stock must be held by a family member and a member of the family must live on the farm or provide day-to-day labor and management. Nevertheless, in the last two years, the state has seen large operations enter pork production either under general partnerships or by defining themselves as family farm corporations. In 1994, only three of the nation's largest pork producers had farm operations in Nebraska. By 1998, the number had risen to seven.²

Pollution Problems

In 1990, the Nebraska Department of Environmental Quality (DEQ) asserted that over half of the 15 fish kills attributed to human practices were the result of livestock waste runoff.³ Additionally, many of the state's waterways have registered such high levels of fecal coliform bacteria that swimming and recreational contact has been prohibited.⁴

In some areas where the state's few CAFOs are in operation, residents are suffering the effects of odor problems. For example, neighbors of a hog operation owned by National Farms, one of the largest port producers in the nation, have sued four times for nuisance and have won each time.⁵ Nuisance suits are expensive, however, and are rarely filed.

Regulatory Climate

The Nebraska DEQ issues state construction and operating permits to all animal producers, regardless of size, if the operation has a waste control facility such as a lagoon, holding pond or other similar structure.⁶ These permits require storage capacity for lagoons to be sufficient to contain all rainfall that occurs during a 25-year, 24-hour rain storm event, manure management and the implementation of best management practices.⁷

While the state permits have required that manure be applied to crops at agronomic rates, the state has been interested primarily in nitrogen application rates.⁸ Fertilization practices based on the rate at which crops take up nitrogen largely ignore the rate at which crops take up phosphorus, another nutrient in manure that accumulates in the soil and is a potential water pollutant when applied in excess.

The state also issues National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act permits.⁹ However, the state has emphasized the use of these permits for open lot livestock operations, rather than confinement operations, on the grounds that these types of operations' waste may end up in waterways.¹⁰ This interpretation of the Clean Water Act ignores the fact that enclosed confinement operations can also cause pollution through manure lagoon leaks or over-application of manure on land. As a result of the state's interpretation, many of the concentrated livestock operations with more than 1,000 animal units have not obtained a Clean Water Act permit.

Because of a lack of staff, the agency has been unable to do much monitoring of the permits or conduct many inspections. DEQ is required to inspect sites both pre- and post-construction and is supposed to conduct annual unannounced inspections as well, but has been unable to complete some of these tasks in the past.¹¹ However, the Nebraska legislature approved funding beginning in summer 1998 to hire up to 12 new staff members to help enforce state requirements.¹²

DEQ can require operators in high-risk areas to perform groundwater monitoring.¹³ In addition, the state is divided into Natural Resource Districts, which have the authority to regulate groundwater and perform some groundwater tests. However, the state rarely requires that feeding operations monitor groundwater and does not require farm owners to keep records, so it is difficult to know if farm operators are properly applying manure to the land.¹⁴

Citizen Involvement

Historically, there has been no formal process for citizens to comment on permit applications. Citizens could submit comments but would have to search through DEQ's files of pending applications to find out about proposed facilities.¹⁵ A new law now requires DEQ to notify the local Natural Resources District and the County Board of Commissioners when an animal feeding operation of any size applies for a permit.¹⁶ When an operation composed of 5,000 animal units or more applies for a permit, the DEQ must notify the county board, the local newspaper and the local Natural Resources District.¹⁷ However, there is still no formal hearing process for soliciting comments from the public.¹⁸

Local Control

Counties in Nebraska have authority to regulate the siting of livestock operations and to require other management practices, such as handling of manure, odor control and controlling flies.¹⁹ Only about one-third of Nebraska's counties have exercised their zoning authority.²⁰

Unfortunately, during the two years it takes for a county to develop final zoning rules, activists say an owner can construct a factory farm before a county has a chance to restrict or block it. An effort (Legislative Bill 1152) to give counties short of final zoning ordinances an opportunity to enact interim measures was defeated in the 1998 legislative session.

Primary interviewees for this chapter:

Nancy Thompson
Center for Rural Affairs
P.O. Box 66
South Sioux City, NE 68776
Phone: 402-294-9117
Fax: 402-494-9112

Annette Dubas
Mid-Nebraska Pride
Route 1, Box 42
Fullerton, NE 68638
Phone: 308-536-2082
Fax: 308-246-5230

Notes

1. Randolph Wood, Director, Nebraska Department of Environmental Quality, Report to Governor Ben Nelson, Report on Livestock Work Group Discussions (January 12, 1998).

2. "Pork Powerhouses," Successful Farming Magazine (October 1998 and October 1994).

3. J. David Aiken, et al., A Farmer's Handbook on Livestock Regulation in Nebraska, written for the Nebraska Pork Producers Association and the Center for Rural Affairs (March 1994), p. 1.

4. J. David Aiken, et al., A Farmer's Handbook on Livestock Regulation in Nebraska, written for the Nebraska Pork Producers Association and the Center for Rural Affairs (March 1994), p. 1.

5. Center for Rural Affairs, Special Report, Spotlight on Pork II, Corporate Farming Update, Walthill, Nebraska (June 1995), pp. 3-4.

6. J. David Aiken, et al., A Farmer's Handbook on Livestock Regulation in Nebraska, written for the Nebraska Pork Producers Association and the Center for Rural Affairs (March 1994), pp. 2-3.

7. J. David Aiken, et al., A Farmer's Handbook on Livestock Regulation in Nebraska, written for the Nebraska Pork Producers Association and the Center for Rural Affairs (March 1994), pp. 2-3.

8. J. David Aiken, et al., A Farmer's Handbook on Livestock Regulation in Nebraska, written for the Nebraska Pork Producers Association and the Center for Rural Affairs (March 1994), p. 4, Section F.

9. J. David Aiken, et al., A Farmer's Handbook on Livestock Regulation in Nebraska, written for the Nebraska Pork Producers Association and the Center for Rural Affairs (March 1994), p. 4.

10. J. David Aiken, et al., A Farmer's Handbook on Livestock Regulation in Nebraska, written for the Nebraska Pork Producers Association and the Center for Rural Affairs (March 1994), p. 4.

11. Personal communication between Rebecca Knuffke and Renee Hancock, Program Specialist, Permits and Compliance Section of Nebraska Department of Environmental Quality (September 17, 1998).

12. Julie Anderson, "Pollution Permits Stack Up," Omaha World-Herald (October 1998).

13. Personal communication between Rebecca Knuffke and Renee Hancock, Program Specialist, Permits and Compliance Section of Nebraska Department of Environmental Quality (September 17, 1998).

14. J. David Aiken, et al., A Farmer's Handbook on Livestock Regulation in Nebraska, written for the Nebraska Pork Producers Association and the Center for Rural Affairs (March 1994), pp. 6-8.

15. Personal communication between Rebecca Knuffke and Gary Buttermore, Environmental Engineer, Groundwater Section, Nebraska Department of Environmental Quality (September 21, 1998).

16. L.B. 1209, "Livestock Waste Management Act."

17. Personal communication between Rebecca Knuffke, Clean Water Network and Renee Hancock, Program Specialist, Permits and Compliance Section of Nebraska Department of Environmental Quality (September 17, 1998).

18. J. David Aiken, et al., A Farmer's Handbook on Livestock Regulation in Nebraska, written for the Nebraska Pork Producers Association and the Center for Rural Affairs (March 1994), pp. 6-8.

19. Personal communication between Rebecca Knuffke, Clean Water Network and Renee Hancock, Program Specialist, Permits and Compliance Section of Nebraska Department of Environmental Quality (September 17, 1998).

20. J. David Aikens, UNL Water and Ag Law Specialist, Paper: "Rural Zoning & Livestock Operations" (October 1, 1997), p. 1.