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Commission Communications: Clarifying county authority regarding CAFOs

Ed Douglas
Chillicothe News

Recently I have learned from several different people that the perception on social media seems to be that the county commission has the authority to turn down a CAFO (Confined Animal Feeding Operation) application if it does not comply with county rules that conflict with state laws or regulations governing CAFOs. That perception is misleading and inaccurate.

In 2019, the Missouri General Assembly passed Senate Bill 391, signed by the governor went into effect in August of 2019. The law states that county health ordinances cannot have standards that are inconsistent with or more stringent than state law.

The effect of that law means that the county is bound by the state laws and regulations referenced in Senate Bill 391, which are generally administered by the Missouri Department of Natural Resources. The law allows the County to: 1) conduct a public hearing as to whether or not DNR regulations were met and 2) hire an independent engineer to assess whether or not a CAFO application complies with the state regulations (and any County regulations not preempted by the state regulations). If those standards are met, or the applicant agrees to

conditions needed to ensure that those standards are met, the county commission is required BY LAW to approve the application.

I think some people hope that the Livingston County Commission can ignore thelaw and vote no on a CAFO even if the binding standards are met. The answer to that is that we cannot disregard state law. Doing so would be to violate our oath of office to uphold the laws of the state of Missouri and subject the county to potential lawsuits and significant liability from knowingly violating the law.

Here is some background regarding Livingston County’s Health Ordinance. The Livingston County Commission adopted a health ordinance in 1997. There are currently 20 counties out of 114 counties in the state of Missouri that have health ordinances. Counties with health ordinances have more stringent standards on CAFOs than counties that don’t.

This is my sixth year as Presiding Commissioner and in my six years our commission has made no attempt to change or modify our existing health ordinance and had no intention to change it. As I have stated many times publicly, I felt that our health ordinance was appropriate for our county. In fact, before Senate Bill 391 was passed I met with our state legislator along with the

three past commissioners, two of whom were involved in writing the original ordinance, and we told our legislator that we felt our ordinance was appropriate for our county and we wanted to keep it. I also called our state senator’s office on behalf of our commission with the same message. As already mentioned, the legislature passed the bill anyway and it was signed by the governor and is currently law. (It should be noted that people that are unhappy with the Senate

Bill 391 should contact their representatives with their concerns).

A CAFO application was filed with our county and with the DNR in February of this year. DNR approved that application in May. Our county commission scheduled a public hearing on September 15 . A few days before the hearing the CAFO withdrew their application and we, therefore, canceled the hearing. A few days later the CAFO resubmitted a new application for a different type of CAFO which starts the process all over.

It should be mentioned that there are various lawsuits by counties in Missouri that question the legality of the law and or whether or not counties with health ordinances can be grandfathered. These cases will most likely drag on through appeals for several years. The only court ruling that I am aware of is a circuit court ruling in Knox County that stated that state law prohibited that county from standards in their health ordinance more stringent than State Law. Although a

circuit court ruling in another county is not binding on us, I am sure this ruling will be appealed. We have been advised by our legal counsel that the law is the law until a court tells you differently. So just because there are lawsuits in various courts does not mean we can ignore the law. It is law until an appeals court or the State Supreme Court rules differently.

I am very sympathetic with the concerns about water quality, air quality, and general public health created by CAFOs. However, those concerns do not give me or the Livingston County Commission the ability to violate state law. The commission’s hands are effectively bound by state law.

I hope this helps clarify the authority of the county commission regarding its health ordinance as effectively modified by Bill 391.