SB-85 Comment Period and Small Farm Exemptions

What is going on?

SB-85, the CAFO program reform package that FoFF helped to pass in 2023, is finally ready to be implemented. After 9 months of internal work at Oregon Department of Agriculture, a Rules Advisory Committee that FoFF participated in, and feedback through agency staff and the CAFO program Advisory Committee, ODA has released the draft rules for public comment. We have now until July 22 to tell the agency what we think of their interpretation and ask for any changes/improvements. You can read the draft rules in their entirety here. 

We have some feedback on the rules as they are written from the statute passed in SB-85, and then there are some changes included in these proposed rules that go beyond the scope of SB-85. Agencies often take advantage of the rules change processes that come with new legislation and make administrative fixes and changes within their authority while the rules are open so that multiple comment periods and Rules Advisory Committee (RAC) don’t need to be opened. ODA has also chosen to take this opportunity to make some changes to address the concerns brought forward in the now-rolled-back “small dairy outreach and education program” from last year. Essentially for the first time, ODA has decided to include de minimis animal and liquid waste gallon numbers, below which farms do not need to seek a CAFO permit. This is a positive step for small farms because before these rules, all farms were subject to seeking a permit at the whim of ODA even though in practice it was not often enforced on small farms.

Let’s talk about the details:

SB-85 Changes

The majority of the changes made in these proposed rules are explicitly laid out in the text of SB-85 as it was passed. There are a couple new pieces that are required for all CAFOs to include in their application or renewal packet. Water Supply Plans (WSP) are a new requirement that is a tool to prove that the CAFO site has legal access to the water required for their facility and surrounding crop land if it is part of their nutrient management plan. This is wrapped up in the temporary requirement in SB-85 that the stockwater exemption is limited to 12,000 gal/day for animal drinking water. Before the requirement of the WSP, there was no place in the permit where facilities (that in some of the largest cases use comparable amounts of water to small cities on a daily basis) had to disclose how much water they were using or where they planned to obtain it. This is a vital step in getting a better accounting of water use in Oregon given our climate change driven water scarcity.

Another major change is the inclusion of the Land Use Compatibility Statement in an application or renewal. This part of SB-85 also granted authority to county commissions to impose setbacks for certain scales of facilities based on their community’s needs. The only county who has taken up that authority as of now is Linn County, but we hope to see more county governments engaging with their people to determine what is right for their rural communities, air, soil, and water quality.

There are also new requirements of pre-population inspections of new facilities. This means that when a new facility is built (or an existing one is expanded with new construction), in addition to the site visit required before construction, there will also need to be an inspection of completed new construction before the animals can be brought on site. This is not needed for renewal of existing facilities and animals do not need to be moved out of their current homes.

These changes all come directly from the statute of SB-85. We are pleased to see the faithfulness that has been applied to the rules in these instances. We do see one area where the legislative intent of SB-85 has not been captured in the new rules. There are additional requirements for “new” CAFOS in the new rules. “New” is defined as a permit application for a piece of land where a CAFO has never been operated before. This means that if there was a pasture based operation on a site with a small number of animals that obtained a CAFO permit because they wanted to have a processing facility on site, then any subsequent application for a large CAFO on that site would not be “new.” 

The definition of a New Large CAFO should take into account the size of the CAFO facility previously permitted on the land. The infrastructure, waste management systems, and overall risk to water quality if mismanagement were to occur is very different between a small CAFO and a large CAFO. There is also significant difference in site suitability and management process for different types of animals and dry and wet waste systems. With the wording in the most recent draft, discussed in the RAC meeting on 5/2/24 reads ““New large CAFO” means a large CAFO that is seeking a permit under ORS 468B.050 to operate on a parcel of land on which no CAFO has previously operated. A CAFO is considered to have previously operated when it has been issued a permit.” (page 3, rule 21). Under this wording, land previously being permitted for a small CAFO which raises 10,000 chickens on pasture per year and uses a CAFO permit for their on site slaughter facility would mean that 10 years later a 40,000 cow dairy would not be considered a new large facility. In one of the previous drafts of the rules, there was some acknowledgement of this difference in scale and identified that any application on land never having held a large CAFO permit would be considered a “new Large CAFO.”We think this is much more appropriate and would better accomplish the water quality goals of the program by ensuring that permits issued to land where a facility with similar management has never existed have more oversight.

Small Farm Additions

In 2023, ODA launched a campaign to try to impose CAFO permit requirements on 2 cow raw milk dairies for the first time. Not only was this a waste of department resources, it was done without any public input or comment because it was not a rule change, the department claimed they had the authority all along and had chosen not to enforce on small farms in the past. This led to public outcry, groups like FoFF asking the department to roll this back and a lawsuit from some small raw milk producers across the state. It was very clear that imposing a program built for the biggest industrial facilities in the state on these small, often diversified farms was not necessary or right. These draft rules do 2 things to give small farms peace of mind. First, the rules introduce a de minimis amount of process wastewater that is drawn from a parallel processing permit structure. Now if your farm produces less than 100 gal/day of process wastewater (liquid manure, effluence from manure storage, milking wash water, etc.) that is captured in a waste water control facility (defined in the rules as well), then you will not be required to automatically seek a permit. 

ODA has also introduced lower limits on the animal numbers for the small permit category. This is big news because the categories used to just state “less than 200 dairy cows” or “less than 2,500 laying hens”, meaning that theoretically the ODA could require any person owning any number of animals to get a CAFO permit simply for owning them. The new rules set the lower end of the requirements at 10% of the upper limit of the category. For example this means that people with fewer than 20 dairy cows, or fewer than 250 laying hens will not be required to get a CAFO permit, unless they produce over the waste water limit. For mixed species herds the ODA has proposed using an “animal unit” calculation where each animal unit is 1,000 pounds of live weight and folks with more than 30 combined animal units might be asked to seek a permit. This animal number requirement is also tied to the new definition of confinement in the rules. If you keep your animals inside on a prepared surface for more than 12 hours a day, more than 120 days a year and have a number of animals above the lower threshold limit you may be required to seek a permit.

This is really good news for small farms! We have been talking with our community each step of the way and vetting these numbers with small livestock producers in our network to make sure this will have the intended effect. We are glad to be able to help pasture based livestock farmers around the stat plan with certainty in these new boundaries and make sure they are following best practices and able to comply with regulation in a scale appropriate way. It is worth saying here that discharging waste into the waters of the state or violations of the Ag Water Quality Program will always be grounds for CAFO permit requirements. We all have an obligation to conduct our farms in a way that keeps our community’s water clean and if there is a problem, you will be required to fix it. But gone are the threats of preemptive permits for people raising a dozen chickens or 2 cows without problems.

Submit your comments!

We encourage everyone to submit comments on the proposed rules to implement SB-85 and the new small farms exemptions from CAFO permitting. Submit your comments via email to by 5:00pm on July 22.

Here is a template for you to make your own. 


Dear Katie Kearney and ODA CAFO Program:

My name is {NAME} and I am from {TOWN/CITY}. {INCLUDE YOUR FARM NAME AND WHAT YOU RAISE IF THAT APPLIES TO YOU}. I am writing to give comments on the rules to implement SB-85. I appreciate the thoughtful application of the legislative intent of SB-85 in most of the rules however I am concerned about the definition of Large CAFO. Just because a site has had a CAFO on it at some point in history does not mean it is suitable for a large facility. The definition of New Large CAFO should be amended to include that a facility of similar size was operated there before so that applications can be evaluated based on the level of risk associated, and not exempted from some requirements because of the history of the property.

I do want to express my gratitude and support for the additional provisions added to provide de minimis amounts of animals and wastewater before requiring farms to seek a permit. Our small farm community is dedicated to the health of the water, air and rural economies and we believe that everyone should take the needed steps to preserve water quality. Small farms (within the de minimis limits you have set) should only be required to get a CAFO permit if there is a problem, not as a default. Thank you for taking these steps.