SOUTH DAKOTA

• The state has failed to respond promptly to manure spills and to enforce permit measures that could have prevented environmental pollution.
  
  
• South Dakota's permit system allows virtually no public say in the siting or operation of individual animal factories.
  
  
• Recently voters passed a referendum to limit non-family corporations from owning livestock.

South Dakota is a state dependent upon agriculture. Throughout the state's history, family farms have formed the basis of South Dakota's economy and rural communities. Family farmers, however, are becoming increasingly vulnerable to economic failure as they are battered by weather disasters, low grain prices and dwindling federal assistance. Over the last few years, South Dakota farmers have experienced floods, drought and record cold and snow, which in many cases killed livestock and kept farmers from harvesting and planting their crops.

It is becoming evident that a combination of hardships will force South Dakota farmers off the farm in droves, paving the way for large corporate-owned factory farms to take their place in the farm economy, predicts John Bixler of Dakota Rural Action.

In the summer of 1996, South Dakota suddenly became a target for factory hog farms. Two large food corporations, Tyson Foods Inc. and Murphy Family Farms, announced plans to site facilities throughout South Dakota.

Up until recently, South Dakota was relatively free of factory farms. In March of 1997, South Dakota's Department of Environment and Natural Resources (DENR) only had 35 large-scale livestock operations on their weekly permit list. By March 1998, that number had escalated to 94.¹

On November 3, 1998, the South Dakota voters amended the state's Constitution by passing Constitutional Amendment E by a vote of 59-41 percent. Amendment E will limit non-family farm corporations from owning livestock and will significantly slow the proliferation of factory farms in South Dakota.

Pollution Problems

South Dakota's DENR has gotten off to a poor start with its oversight of CAFOs. At a time when the DENR had only a handful of facilities to oversee, substantial manure spills and overflows occurred. Now that there has been a dramatic growth in applications for permits from animal factories, future oversight by the state agency is a concern.

Two recent cases described in detail below illustrate major deficits in South Dakota's permitting, inspection and response to CAFO manure spills. In one case, involving the Pires Dairy, the DENR placed permit conditions on the facility aimed at protecting the environment but failed to properly to verify that the conditions were being met, ending in the spilling of some 300,000 gallons of animal waste. In another case, involving the Schneck Farm Dairies, the DENR delayed a full week before visiting a site where a manure spill had been reported.

When the South Dakota DENR approved a manure management system for the Pires Dairy in 1996, it placed numerous conditions aimed at protecting water quality on the permit. The 1,550-head dairy cattle feeding operation owned and managed by Joe L. Pires in Brookings County had to provide regular water quality samples to the department and keep its manure lagoon regularly lowered, among other conditions, in order for its approval to remain valid.²

On March 11, 1997, the DENR observed wastewater from the animal waste lagoon at Pires Dairy flowing over the top of the pond dike. The following evening, Pires Dairy began pumping wastes from the pond and spraying the wastes on snow-covered and frozen ground -- in violation of its state-approved plan for managing waste. Sometime during the night, the irrigation pipe broke, allowing the wastes to flow into a tributary of Medary Creek. Larry Pires, dairy manager, estimated that the leak from the irrigation system went unnoticed for six to eight hours. Using conservative figures, the irrigation system leaked a total of between 252,000-336,000 gallons of waste while it was out of control.³

After the spill occurred, the DENR concluded that Pires Dairy had failed to meet every single condition of its permit and cited Pires Dairy for violation of the state Water Pollution Control Act. After a year of operation, Pires Dairy had failed to empty a lagoon that had a capacity of only 180 days and had failed to submit water samples from monitoring wells that were supposed to be constructed around the dairy's manure lagoon to check pollution levels.⁴ The owner's failure to submit the required water samples, along with other required testing results and plans,⁵ should have triggered action on the part of DENR. The spill could have been completely avoided if the DENR had monitored the situation to confirm that the conditions of the permit were met.

While the Pires Dairy spill is an example of poor preventive measures by state officials, the Schneck Dairy spill illustrates major lapses in the state's reaction to reported dairy spills.

On March 10, 1997, the lagoons used to store wastes from the 1,700-head Schneck Dairy began to overflow. The overflow was first reported to DENR officials on March 11 by a member of Dakota Rural Action. The DENR told the individual who reported the matter that the department did not act on "complaints" unless they were in writing, signed and submitted to the DENR.⁶ The individual told the DENR that the lagoons were overflowing as they spoke and that by the time he could get the paperwork done and mailed into the DENR, the damage would be done. The DENR insisted on a written complaint.

The individual went ahead and filed the complaint but wanted quicker action, so he decided to call the Minnesota Pollution Control Agency. He thought Minnesota would be interested because the spill was flowing onto the Yellow Bank River, which flows into the Minnesota River.

Minnesota Pollution Control responded quickly, sending an inspector to the site on March 15. The agency determined that the spill was significant enough to justify a return trip for a more thorough inspection. Meanwhile, South Dakota inspectors did not make it to the site until March 17, two days after the Minnesota inspectors' visit and one full week after the spill occurred.⁷ Once at the site, DENR made little more than a token inspection. Despite evidence from Minnesota environmental officials to the contrary, DENR continues to insist that there had been no environmental damage. South Dakota's inspectors concluded that the manure had not reached the Yellow Bank River.⁸

Minnesota Pollution Control inspectors Craig Schafer and Kevin Malloy came to a different conclusion when they returned for a second inspection on March 18, bringing along a video camera to document their findings. At first glance, the manure was not immediately visible because there had been a heavy snowfall between the spill and the inspection. Upon closer inspection, the Minnesota inspectors concluded that a significant amount of manure had flowed across the adjacent field and spread over a stretch of the mostly frozen river. Minnesota inspectors brought shovels with them and easily traced the path of the manure flow. The videotape shows the Minnesota inspectors uncovering thick deposits of manure on the river.⁹

As late as May 1997, South Dakota's environmental officials continued to insist that there was no evidence that the river was affected by the manure. But Minnesota's environmental officials maintained the liquid manure had flowed into the north fork of the Yellow Bank River, even after Schneck Dairy's workers tried to clean up the spill. "There's no way they could get all the manure off the ice. So where did it go?" said Minnesota Pollution Control's Kevin Malloy. "It was liquid enough to flow. How can anybody say it didn't melt through the ice?"¹⁰

Regulatory Climate

South Dakota has instituted a process for granting general water pollution control permits to swine CAFOs with the exception of dry litter poultry facilities. The permit process for swine became effective on February 1, 1997.¹¹ Other CAFOs were covered as of January 1998.

The permit process falls short of protecting the state's environment on numerous counts, according to Dakota Rural Action, which contested the permit in a hearing before the DENR in 1996.¹²

Nowhere in the general permit process is there room for public input on an individual facility. There are no hearings and there is no process for public review or comment.¹³ The permit does require a 30-day public notice in the local newspaper, but the state provides no formal forum for any member of the public to comment during this period.¹⁴ Lack of public input is a problem across the board -- but even more of a problem in counties without zoning. In these instances, major facilities can go from proposal to construction to operation without a single hearing.

The process used to draft the general permit was exclusionary, citizens' groups contend. The state DENR did hold a public hearing to accept testimony on its draft general permit. But the agency wrote the bulk of its proposal in early drafting sessions attended by major farm organizations, including the South Dakota Pork Producers Council,¹⁵ according to John Bixler of Dakota Rural Action. Citizens' groups and environmental groups were not invited to participate in these drafting sessions, according to Bixler.

At a 1997 legislative briefing called by the department to release its draft permit approach, agency officials also released model regulations for local governments to consult in zoning CAFOs. In this document, the department specifically thanked the South Dakota Pork Producers Council and its Environmental Committee for its input in drafting the model zoning regulations.¹⁶ Citizens' groups were not invited to participate in the drafting of these model regulations either, according to Dakota Rural Action's Bixler. Though purely voluntary, these model zoning regulations have been influential in localities where local governments are writing new zoning ordinances to control feedlots, according to Bixler.

The general permit has many shortcomings. Like other "zero discharge" permits, the facilities are allowed to discharge manure into South Dakota waterways in the case of "chronic or catastrophic" rainfalls. These are defined as "a single or series of rainfall events in a short period of time, exceeding the volume of a 25-year, 24-hour storm event" (a storm so severe it is only expected to occur once every 25 years).¹⁷

The general permit does not require bonding or insurance to assure for appropriate clean-up in the case of intentional discharge or unintentional spills/overflows. The general permit does not mention air quality standards or controls. Its restrictions on siting of animal confinement facilities over South Dakota's shallow aquifers are weak, leaving the determination up to counties that have been reluctant to impose controls.¹⁸ The general permit acknowledges both surface and groundwater pollution concerns in advising best management practices for handling manure, for example, but the prescription for preventing contamination from spills consists of "recommendations" on avoiding problems rather than clear mandates. Groundwater monitoring is limited to those cases at the agency's discretion.¹⁹

The general permit program does, however, increase inspections to one during construction of the animal factory and then annually for factory farms with more than 2,000 animal units and every three years for all other CAFOs.²⁰ According to John Bixler of Dakota Rural Action, however it is not clear whether this schedule is being met.

Local Control

Many counties have zoning, but the ordinances were drafted at a time when the state had very few factory farms. Approximately one-third of the counties have no zoning at all, while many other counties have no reference to CAFOs in their zoning ordinances.²¹

According to John Bixler of Dakota Rural Action, when proposals for new factory farms crop up in local communities today, counties scramble to figure out how to react. Rather than taking the time to put together a carefully considered zoning ordinance, county commissioners feel the pressure to move quickly and make do with an inadequate ordinance or adopt a hastily drafted proposal. Local zoning ordinances relating to feedlots vary widely from one county to another. The confusion is so great in some cases that it is hard for citizens to know the rules.

One county may require a simple majority for approval of a zoning-related decision while another county may require a super-majority for an identical decision. One county may have the zoning board make zoning related decisions, while in other counties the zoning board simply makes recommendations to the county commission. In some counties, the zoning board is also the county commission. Sometimes the same group of five or seven people is asked to make a decision as the zoning board and then has to adjourn and reconvene as the county commission to make the final decisions. This in turn causes much confusion over public notice for hearings.

Primary interviewee for this chapter:

John Bixler
Dakota Rural Action
P.O. Box 549
Brookings, SD 57006
Phone: 605-697-5204
Fax: 605-697-6230
e-mail: drural@brookings.net

Notes

1. South Dakota Department of Environment and Natural Resources, "Weekly Report -- Plans and Specifications (March 26, 1997) and "Manure Management System Plans and Specifications" (March 11, 1998).

2. South Dakota Secretary of the Department of Environment and Natural Resources, "Amended Notice of Violation and Order in the Matter of Joe L. Pires & Company Dairy's Discharge into the Environment" (April 26, 1997; final date).

3. South Dakota Secretary of the Department of Environment and Natural Resources, "Amended Notice of Violation and Order in the Matter of Joe L. Pires & Company Dairy's Discharge into the Environment" (April 26, 1997; final date).

4. South Dakota Secretary of the Department of Environment and Natural Resources, "Amended Notice of Violation and Order in the Matter of Joe L. Pires & Company Dairy's Discharge into the Environment" (April 26, 1997; final date).

5. South Dakota Secretary of the Department of Environment and Natural Resources, "Amended Notice of Violation and Order in the Matter of Joe L. Pires & Company Dairy's Discharge into the Environment" (April 26, 1997; final date).

6. State of South Dakota Department of Environmental and Natural Resources Complaint Form.

7. South Dakota Department of Environment and Natural Resources, Schneck Discharge Chronology (date unknown).

8. Kevin Woster, "Minnesota, South Dakota Split," Argus Leader (May 4, 1997).

9. Minnesota Pollution Control Agency, videotape recorded March 18, 1997, narrated by Craig Schafer and Kevin Malloy.

10. Kevin Woster, "Minnesota, South Dakota Split," Argus Leader (May 4, 1997).

11. South Dakota Department of Environment and Natural Resources, "General Water Pollution Control Permit for Concentrated Swine Feeding Operations," Permit No. SDG-0440000 (January 21, 1997; effective date February 1, 1997).

12. State of South Dakota Department of Environment and Natural Resources, "Petition for Contested Hearing in the Matter of General Water Pollution Control Permit for Swine Feeding Operations, Dakota Rural Action, Petitioner" (November 27, 1996).

13. State of South Dakota Department of Environment and Natural Resources, "Petition for Contested Hearing in the Matter of General Water Pollution Control Permit for Swine Feeding Operations, Dakota Rural Action, Petitioner" (November 27, 1996).

14. South Dakota Department of Environment and Natural Resources, Chart-Process to Obtain State Approval for New or Expanding Swine Units under the General Permit.

15. Nettie H. Myers, Secretary, South Dakota Department of Environment and Natural Resources, "Legislative Briefing on the Water Pollution Control General Permit for Swine Feeding Operations in South Dakota" (January 22, 1997). This briefing document on the draft general permit lists the South Dakota Pork Producers Council as an organization that cooperated in developing model regulations. The draft general permit and model zoning regulations for CAFOs were released together at the legislative briefing.

16. "Model County Zoning Regulations for Concentrated Animal Feeding Operations" (September 1996). The cover page notes "These model regulations were prepared at the request of the South Dakota Pork Producers Environmental Committee."

17. State of South Dakota Department of Environment and Natural Resources, "Petition for Contested Hearing in the Matter of General Water Pollution Control Permit for Swine Feeding Operations, Dakota Rural Action, Petitioner" (November 27, 1996).

18. State of South Dakota Department of Environment and Natural Resources, "Petition for Contested Hearing in the Matter of General Water Pollution Control Permit for Swine Feeding Operations, Dakota Rural Action, Petitioner" (November 27, 1996).

19. South Dakota Department of Environment and Natural Resources, "General Water Pollution Control Permit for Concentrated Swine Feeding Operations," Permit No. SDG-0440000 (January 21, 1997; effective date February 1, 1997).

20. S.D. C.L. 1-40-38.

21. "South Dakota County Zoning," property of Planning and Development District III (November 10, 1996). Information was obtained by a telephone survey.