FoFF has received reports about claims that ODA is targeting small farms and trying to drive them out of business. In particular, there is one youtube video with millions of views and a lot of sensationalist claims. While most of what is said in that video is skewed in the pursuit of clicks, there is a situation that FoFF has been monitoring for over a year regarding the CAFO program at the Oregon Department of Agriculture.
What is Happening?
Background
First, for some background, Oregon does indeed have a CAFO permitting process that exceeds federal requirements. The federal CAFO permits are for “concentrated animal feeding operations” and are related to permitting requirements in the Clean Water Act. Oregon has an additional state permit for “confined animal feeding operations” which is also a water quality permit and is applied to farms which do not meet the risk threshold of the federal permit. In general, these permits seek to establish understandings, agreements and standards of animal and waste handling in livestock operations that have the potential to pollute waters of the state and country. There have been some examples of damage caused by lack of compliance with those permits (Lost Valley comes to mind) but also this system consistently does not hold the biggest operations accountable for their impact. We have been working on this issue for years, and our most recent campaign with our partners in Scio and at the Stand Up to Factory Farms Coalition resulted in the passage of SB 85.
In January of 2023 (months before SB 85 had even been drafted), ODA’s CAFO program released a white paper explaining a new initiative to do outreach and education to raw milk dairies to evaluate if they needed a CAFO permit. Every Grade A dairy in the state is required to have a CAFO permit and in the whitepaper the department said it was taking this step “to maintain a level playing field with all dairies holding Grade A Fluid Milk Licenses that bear the costs of compliance with water quality regulations.” Furthermore, in a CAFO Advisory Committee meeting in April of 2023 (recordings available here in the meeting minutes section) a representative of the CAFO program told the stakeholders present that this move was made at the request of the dairy industry. FoFF vehemently disagrees that water quality permits should be issued or imposed as a method to influence who is able to enter a commercial market. Water Quality permits should be issued for the benefit of water quality and to address risk to our natural environment, not to benefit or punish individual businesses for the market they choose to enter. Furthermore, raw milk and Grade A dairy are two different products with different markets. Raw milk cannot be sold in retail settings in Oregon (on farm or herdshare sales only) and therefore will never compete with Grade A dairy under the current structure.
This was also not done through a rule change for the program. The CAFO program claimed to have always had the right to impose the rules in this way and it was simply a re-interpretation of the current text. The basis that they used to determine that there was a need for raw milk dairies to have a CAFO permit was a re-interpretation of two of the three considerations for CAFO permits (read more about the process in our previous blog post). The department argued that any person milking an animal was confining that animal for any period of time and therefore met the confinement definition. Because many of these dairies “confine” animals for milking for about 30 minutes twice a day and they are in pasture otherwise except for the very wettest part of the year, this opened the door to ask if any confinement would constitute the need for a CAFO permit. If backyard chickens were put in a coop at night, if a dog was in a run for a portion of its day, or if any farmer ever brought their animals into a pole barn and used a deep bedding system to spare their pastures the damage of the rainiest time of year, this could be considered confinement. When raised with the department, they said that yes this is the logical interpretation of their rule re-interpretation, but they would be reasonable on when and how to enforce it. When asked what criteria they would use, they replied that farmers should just ask for a CAFO program employee to come do an evaluation.
The other main reinterpretation was the qualification of any water having touched milk (water used for rinsing milking buckets, or washing milk jars/jugs) as process wastewater, and that having no lower threshold for the need for a CAFO waste management plan. This meant that a farmer could not let any of this wash water enter their home septic system, land apply it (dump it in the garden) without a nutrient management plan, and would need a tank to capture the process wastewater to log and quantify it. This is a vital step for larger operations. In meetings with the department we were told that they could right size a solution for small operations. During this process, one of the farms in FoFF’s network, Cast Iron Farm in McMinnville, went through the CAFO permitting process. Cast Iron Farm has 2 cows, 6 goats, about 9 sheep, and 2 ducks. This process took months to hear back on, days of inspections and email correspondence to talk through the complexity of this small diverse system and after all this state investment and employee time, the waste management system is 5 5-gallon buckets in the milking parlor. This is a misuse of department resources and the inspector’s valuable time.
Farmer Lawsuit
Four farmers (2 raw cow dairies and 2 raw goat dairies) have sued the state over these policies and the unnecessary expansion of the program to cover the smallest farms. That lawsuit is ongoing and FoFF is not formally affiliated with it. Learn more about the lawsuit in this recent article.
Recent Rollback
On March 21, 2024 ODA rolled back their decision to pursue this program and lifted the looming enforcement deadline of April , 2024. Read more in their press release here. This meant that the department would halt the outreach to small farms on this program and focus on its other work, including the rulemaking and implementation of SB 85. Although the enforcement deadline has been lifted, ODA did say that they reserve the right to take action on this topic in the future, and because of that the producer lawsuit has not changed course.
What are the next steps?
After ODA rolled back the “outreach and education” program, FoFF was made aware that the department planned to include some new language in rules to make the lines clearer on who needs a CAFO permit and who does not. This change was not dictated by SB 85, but the department is taking advantage of the opportunity to change rules now while it is required for the program changes in SB 85, rather than opening a separate rule making process later on. This means that the changes made to these definitions are not beholden to the statutes governing SB 85 (because they are not directly mentioned) and have more discretion from the department to make changes.
FoFF has a representative on the official RAC and is evaluating whether the definitions placed in these rules are reasonable and would strike the balance between regulating water contamination and not overburdening small farms without the resources to comply with industrial scale regulation. We are still gathering info and reaching out to people in our network who hold current CAFO permits and those who would have been swept into the expanded program. We will have more information posted here after the RAC meetings conclude and it is time for public comment. If you are one of the livestock farmers described above and would like to weigh in now, contact FoFF Co-ED Alice Morrison, alice@friendsoffamilyfarmers.org.
What does FoFF think?
FoFF acknowledges that livestock farming has the potential to be a major source of water, air and soil pollution. This is tied directly to the scale of the operation and its practices. In order to move Oregon and the world to a more equitable, ecosystem driven food system, we have to give folks a path forward that is cognizant of that balance. One of the main problems that FoFF had with the expansion of the CAFO program was that there were no clear lines or guidance we could direct our farmers to in order to determine if they needed a permit. The department was encouraging farmers to just call up and host an inspector for an evaluation, but without thoughtful consideration of the expansion and clear criteria for evaluation, farmers had no idea what to expect or whether they even needed this oversight. We are glad that the department has chosen to roll back the initiative it began in January 2023 and turn an eye to developing real, clear guidelines.
We also want this risk assessment to be science based. FoFF has always maintained that small farms and big farms have to be regulated differently because of the risk they pose to the environment. It is indisputably true that the manure from 3,000 cows has a different environmental impact over 1 acre than the manure of 2 cows. We want there to be clear, science based standards for managing environmental harm. If we allow our water quality regulations to be influenced by industry requests to regulate their perceived competitors, we put the real impact of waste management on the back burner. The true environmental risk of practices should drive these regulations, not any market factors.
How can I get involved or make my voice heard?
The Rulemaking Advisory Committee will have its last meeting in the beginning of May. After that meeting concludes, the department will edit the draft rules based on the feedback received there and release the public draft rules for a comment period. This comment period is required to last 90 days. FoFF will release talking points and templates for comments when the call is released, stay tuned and look for an announcement some time in late May or June!