A Phillips County jury awarded landowners $134,000 after a prominent Kansas hog producer illegally installed pipe on their property to transfer liquified waste from a confined-animal facility so it could be sprayed on fields from irrigation pivots. A judge hasn’t set punitive damages against Terry Nelson, of northcentral Kansas. (Scott Olson/Getty Images)
TOPEKA — State regulators working behind closed doors with three prominent Kansas agriculture organizations drafted new rules allowing confined animal operators opportunity to boost concentration of hogs without triggering laws mandating greater separation distances from surface water or nearby homes, churches and schools.
The recommended policy stemmed from a lawsuit filed by the Sierra Club and a subsequent 2019 court decision that went against the Kansas Department of Health and Environment and prominent hog farmer Terry Nelson. The Sierra Club successfully challenged KDHE’s decision to help Nelson evade environmental setbacks in Phillips and Norton counties in northwest Kansas.
Nelson’s strategy, embraced by the Kansas Livestock Association, was to maneuver around barriers established in Kansas to preserve quality of life in rural communities amid concentrated animal feeding operations, or CAFOs. The idea was to divide an industrial-sized Nelson hog facility into limited-liability companies, secure separate operating permits from the state and raise more hogs on that site without having to move further away from protected surface water.
That attempt to exploit a potential loophole was rejected by the district court, but new regulations proposed by KDHE appear designed to appease a livestock industry intent to work around restraints on CAFOs.
A Kansas Open Records Act request revealed KDHE privately negotiated from March to May 2020 with representatives of the Kansas Livestock Association, Kansas Pork Association and Kansas Farm Bureau to reach agreement on rule-and-regulation adjustments useful to the livestock industry but of questionable benefit to anyone else.
At no time during that period, according to KDHE emails and statements by agency officials, did KDHE seek broad public input or specific comment from the Sierra Club. Emails show KDHE officials relied on Aaron Popelka, an attorney with KLA; Tim Stroda, president of the pork association; and John Donley, an attorney who represents Farm Bureau, to massage the CAFO regulations.
“After KLA’s review and discussing the draft with KPA and KFB,” Popelka said early in that process in an email to KDHE administrators, “we are collectively disappointed with the draft and would like to set up a joint meeting this week to discuss.”
Craig Volland, who works with the state chapter of the Sierra Club on confined-animal policy, said proposed CAFO regulatory changes would be inconsistent with state law conceived to protect public health and the water supply.
“Instead of accommodating the interests of the livestock industry, KDHE should be doing its job, which is to protect the health and water resources of rural Kansas,” Volland said.
He said the economic impact statement filed by KDHE touched on benefits to the livestock industry of the CAFO adjustments. Not addressed in that document, he said, were potential adverse impacts, including lower property values suffered by neighbors of expanded animal feeding operations.
It challenges logic for KDHE to interpret two adjacent hog buildings as something other than one concentration of animals that ought to be subject to the larger setbacks, Volland said.
KDHE’s reform proposals stray from CAFO regulations in Nebraska, Missouri, Oklahoma and Colorado, Volland said. Regulation of CAFOs produced recent controversy in Missouri, where regulators eased water quality restrictions.
“The proposed rules could lower the quality of life in rural Kansas. The governor should halt these proceedings and order an independent review of the possible impacts,” Volland said.
KDHE scheduled a telephone conference call at 10 a.m. Wednesday to gather public testimony on amending CAFO regulations in Kansas. A notice of the hearing was posted to the Kansas Register two months ago. It’s not clear why KDHE waited until the final day of the 2021 legislative session to put it before the public.
Matthew Steele, chief of the livestock waste management section of KDHE, offered a 20,000-foot summary of the CAFO recommendations May 5 during a brief meeting of a joint committee of the state House and Senate. Only one member of that panel, Sen. Ethan Corson, D-Prairie Village, bothered to ask questions of Steele regarding the legal and regulatory controversy about CAFOs.
Steele confirmed for legislators KDHE didn’t reach beyond livestock industry organizations when developing the new regulations. He said the goal was to redefine “separate” and “single” in relation to permits for animal feeding operations.
“The clarification in this definition does not impact the permitting requirements,” Steele said.
Volland said the proposed change to regulations wouldn’t alter separation distances, but he considered Steele’s comment disingenuous. Volland said what KDHE did propose would change how animals were accounted for in each permit and could result in application of less-stringent separation distances despite presence of more animals.
Kansas law mandates a facility with a capacity up to 3,724 animal units to be 4,000 feet from a home, school, church, medical facility or other places where people congregate. Likewise, a confined hog facility with up to 3,724 animal units must be at least 250 feet from surface water. Larger animal headcounts would raise separation distances by 1,000 feet for habitable structures and by 250 feet for water surfaces. Regulations are based on animal units, which takes into account the size of animals and volume of manure produced.
The pending KDHE regulation could open a door to farmers who wanted to subdivide CAFO operations to qualify for permits tied to smaller animal capacities. If these smaller entities had separate waste management systems, under the proposed rules, the overall result could be a higher number of animals confined on that same acreage.
During the brief legislative hearing on administrative policy issues at the Capitol, a KDHE attorney affirmed the proposed CAFO regulations were an outgrowth of the Sierra Club lawsuit.
Kristi Zears, spokeswoman for KDHE, said the recommendation to amend CAFO regulations wasn’t in conflict with the Legislature’s belief large numbers of animals clustered together, including thousands of hogs confined in side-by-side barns, required setbacks to water and neighbors.
“The Legislature did not limit the number of farmers in a given area,” Zears said. “The intent of the Legislature was that larger facilities have larger setback distances and that smaller facilities have smaller setback distances. These clarifying regulations fit well within that intent. The upcoming regulations do not represent a shift in policy or priorities.”
CAFO issues percolated to the surface in Kansas after a 2017 fire destroyed several of Nelson’s hog barns and killed 9,000 pigs. Nelson sought to rebuild a Husky Hogs breeding facility near Prairie Dog Creek, but sought to add capacity.
Nelson worked with KLA to devise a plan to divide the property so more hogs could potentially be raised there. Nelson moved to keep half the Husky Hogs property and hand the other half of the complex renamed Prairie Dog Pork to his daughter-in-law, Julia Nelson. KDHE agreed, but required the two entities to have separate waste management systems. The total number of hogs allowed at the side-by-side operation was set at 6,154 animal units, the Sierra Club said.
The process was relied upon at a separate Nelson farm site to dodge a 5,000-foot setback due to presence of a neighbor’s habitable structure. Terry Nelson built adjacent operations called Stillwater Swine, owned by Terry Nelson, and Rolling Hills Pork, owned by his son, Clarke, and Julia Nelson. Both sides of the facility had a capacity of 3,724 animal units each, which qualified the location for a 4,000-foot setback that avoided the structure.
The Sierra Club filed a lawsuit in 2018 that argued KDHE was complicit with Terry Nelson in a “legal fiction” designed to thwart protection of water and rural communities from large hog confinement operations. In 2019, a Shawnee County District Court judge reversed KDHE‘s issuance of permits for these Nelson properties. The judge decided there couldn’t be a contiguous ownership boundary between the CAFO facilities to be declared separate and he also noted a key consideration was the concentration of animals in a single location.
The judge called KDHE’s actions “unreasonable, arbitrary and capricious” and ordered the issue returned to KDHE for further review. Terry Nelson filed an appeal with the Kansas Court of Appeals.
In March, KDHE posted a notice of proposed modification to the four challenged permits. The agency is seeking, according to the Sierra Club, to work around the contiguous ownership boundary problem at the Nelson properties by inserting a five- or 10-foot sliver of land between the halves that would be owned by a third party, Nelson Farms Inc.
“KDHE should either deny these new applications or place these proceedings on hold pending a decision by the Court of Appeals,” Volland said.
In 2018, KDHE fined Terry Nelson’s hog business about $150,000 for ignoring cease-and-desist orders to halt construction of hog facilities in Phillips and Norton counties because he lacked necessary state permits. Consent agreements later signed by representatives of the Nelson family’s hog operations, based in Long Island, Kansas, reduced the penalty to $34,000.
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