19.0619.01000
Sixty-sixth
Legislative Assembly HOUSE BILL NO. 1403
of North Dakota
Introduced by
Representatives Devlin, D. Johnson, Pollert, Trottier
Senators Luick, Wanzek
1 A BILL for an Act to create and enact sections 4.1-01-24 and 4.1-01-25 of the North Dakota
2 Century Code, relating to zoning of animal feeding operations and regulation of odors from
3 agricultural operations and animal feeding operations by agriculture commissioner; and to
4 amend and reenact sections 11-33-02.1, 11-33-22, 23-25-11, 23.1-06-15, 44-04-32, 58-03-11.1,
5 and 58-03-17 of the North Dakota Century Code, relating to zoning of animal feeding operations
6 and regulation of odors from agricultural operations and animal feeding operations; to repeal
7 sections 23-01-30 and 23.1-01-10 of the North Dakota Century Code, relating to a central
8 repository for concentrated animal feeding operations zoning regulations; and to provide a
9 contingent repeal.
10 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
11 SECTION 1. Section 4.1-01-24 of the North Dakota Century Code is created and enacted
12 as follows:
13 4.1-01-24. Zoning regulation of concentrated animal feeding operations - Central
14 repository.
15 The agriculture commissioner shall establish, operate, and maintain an electronically
16 accessible central repository for all county and township zoning regulations that pertain to
17 concentrated animal feeding operations. The county auditor of a county and a township clerk of
18 a township having a zoning regulation that pertains to concentrated animal feeding operations
19 shall file the regulation with the department for inclusion in the central repository.
20 SECTION 2. Section 4.1-01-25 of the North Dakota Century Code is created and enacted
21 as follows:
22 4.1-01-25. Regulation of odors - Animal feeding operations - Rules.
23 1. In areas located within a city of the area over which a city has exercised extraterritorial
24 zoning under section 40-47-01.1, an agricultural operation, as defined in section
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1 42-04-01, or animal feeding operation may not discharge into the ambient air any
2 objectionable odorous air contaminant that measures seven odor concentration units
3 or higher outside the property boundary where the discharge is occurring. If an
4 agricultural operation has been in operation for more than one year, and the property
5 of the person making the odor complaint was built or established after the agricultural
6 operation was established, the measurement for compliance with the seven odor
7 concentration units standard must be taken within one hundred feet [30.48 meters] of
8 the subsequently established residence, church, school, business, or public building
9 making the complaint rather than at the property boundary of the agricultural
10 operation. The measurement may not be taken within five hundred feet [.15 kilometer]
11 of the property boundary of the agricultural operation.
12 2. In areas located outside a city or outside the area over which a city has exercised
13 extraterritorial zoning as defined in section 40-47-01.1, an agricultural operation, as
14 defined in section 42-04-01, or an animal feeding operation may not discharge into the
15 ambient air any objectionable odorous air contaminant that causes odors that measure
16 seven odor concentration units or higher as measured at any of the following
17 locations.
18 a. Within one hundred feet [30.48 meters] of any residence, church, school,
19 business, or public building, or within a campground or public park. An odor
20 measurement may not be taken at the residence of the owner or operator of the
21 source of the odor, or at any residence, church, school, business, or public
22 building, or within a campground or public park, built or established within
23 one-half mile [.80 kilometer] of the source of the odor after the source of the odor
24 has been built or established;
25 b. At any point located beyond one-half mile [.80 kilometer] from the source of the
26 odor, except for property owned by the owner or operator of the source of the
27 odor, or over which the owner or operator of the source of the odor has
28 purchased an odor easement; or
29 c. If a county or township has zoned or established a setback distance for an animal
30 feeding operation which is greater than one-half mile [.80 kilometer] under either
31 section 11-33-02.1 or 58-03-11.1, or if the setback distance under subsection 3 is
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1 greater than one-half mile [.80 kilometer], measurements for compliance with the
2 seven odor concentration units standard must be taken at the setback distance
3 rather than one-half mile [.80 kilometer] from the facility, except for any residence,
4 church, school, business, public building, park, or campground within the setback
5 distance which was built or established before the animal feeding operation was
6 established, unless the animal feeding operation has obtained an odor easement
7 from the pre-existing facility.
8 3. An odor measurement may be taken only with a properly maintained scentometer, by
9 an odor panel, or by another instrument or method approved by the agriculture
10 commissioner, and only by inspectors certified by the agriculture commissioner who
11 have successfully completed a department-sponsored odor certification course and
12 demonstrated the ability to distinguish various odor samples and concentrations. If a
13 certified inspector measures a violation of this section, the agriculture commissioner
14 may send a certified letter of apparent noncompliance to the person causing the
15 apparent violation and may negotiate with the owner or operator for the establishment
16 of an odor management plan and best management practices to address the apparent
17 violation. The agriculture commissioner shall give the owner or operator at least fifteen
18 days to implement the odor management plan. If the odor problem persists, the
19 agriculture commissioner may proceed with an enforcement action provided at least
20 two certified inspectors at the same time each measure a violation and then confirm
21 the violation by a second odor measurement taken by each certified inspector, at least
22 fifteen minutes, but no more than two hours, after the first measurement.
23 4. A person is exempt from this section while spreading or applying animal manure or
24 other recycled agricultural material to land in accordance with a nutrient management
25 plan approved by the agriculture commissioner. A person is exempt from this section
26 while spreading or applying animal manure or other recycled agricultural material to
27 land owned or leased by that person in accordance with rules adopted by the
28 agriculture commissioner. An owner or operator of a lagoon or waste storage pond
29 permitted by the agriculture commissioner is exempt from this section in the spring
30 from the time when the cover of the permitted lagoon or pond begins to melt until
31 fourteen days after all the ice cover on the lagoon or pond has completely melted.
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1 Notwithstanding these exemptions, all persons shall manage their property and
2 systems to minimize the impact of odors on their neighbors.
3 5. This section does not apply to chemical compounds that can be individually measured
4 by instruments, other than a scentometer, which have been designed and proven to
5 measure the individual chemical or chemical compound, such as hydrogen sulfide, to
6 a reasonable degree of scientific certainty, and for which the agriculture commissioner
7 has established a specific limitation by rule.
8 6. For purposes of this section, a public park is a park established by the federal
9 government, state, or a political subdivision of the state in the manner prescribed by
10 law. For purposes of this section, a campground is a public or private area of land
11 used exclusively for camping and open to the public for a fee on a regular or seasonal
12 basis.
13 7. a. In a county that does not regulate the nature, scope, and location of an
14 agricultural operation, as defined in section 42-04-02, or an animal feeding
15 operation under section 11-33-02, the agriculture commissioner shall require that
16 any new agricultural operation or new animal feeding operation permitted under
17 chapter 61-28 be set back from any existing residence, church, school, business,
18 public building, park, or campground.
19 (1) If there are fewer than three hundred animal units, there is no minimum
20 setback requirement.
21 (2) If there are at least three hundred animal units but no more than one
22 thousand animal units, the setback for any animal operation is one-half mile
23 [.80 kilometer].
24 (3) If there are at least one thousand one animal units but no more than two
25 thousand animal units, the setback for a hog operation is three-fourths mile
26 [1.20 kilometers] and the setback for any other animal operation is one-half
27 mile [.80 kilometer].
28 (4) If there are at least two thousand one animal units but no more than five
29 thousand animal units, the setback for a hog operation is one mile
30 [1.60 kilometers] and the setback for any other animal operation is three-
31 fourths mile [1.20 kilometers].
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1 (5) If there are five thousand one or more animal units, the setback for a hog
2 operation is one and one-half miles [2.40 kilometers] and the setback for
3 any other animal operation is one mile [1.60 kilometers].
4 b. The setbacks set forth in subsection 1 do not apply if the owner or operator
5 applying for the permit obtains an odor easement from the pre-existing use that is
6 closer.
7 c. For purposes of this section:
8 (1) One mature dairy cow, whether milking or dry, equals 1.33 animal units;
9 (2) One dairy cow, heifer or bull, other than an animal described in paragraph 1
10 equals 1.0 animal unit;
11 (3) One weaned beef animal, whether a calf, heifer, steer, or bull, equals
12 0.75 animal unit;
13 (4) One cow-calf pair equals 1.0 animal unit;
14 (5) One swine weighing fifty-five pounds [24.948 kilograms] or more equals
15 0.4 animal unit;
16 (6) One swine weighing less than fifty-five pounds [24.948 kilograms] equals
17 0.1 animal unit;
18 (7) One horse equals 2.0 animal units;
19 (8) One sheep or lamb equals 0.1 animal unit;
20 (9) One turkey equals 0.0182 animal unit;
21 (10) One chicken, other than a laying hen, equals 0.008 animal unit;
22 (11) One laying hen equals 0.012 animal unit;
23 (12) One duck equals 0.033 animal unit; and
24 (13) Any livestock not listed in paragraphs 1 through 12 equals 1.0 animal unit
25 per each one thousand pounds [453.59 kilograms] whether single or
26 combined animal weight.
27 8. A permitted animal feeding operation may expand its permitted capacity by twenty-five
28 percent on one occasion without triggering a higher setback distance.
29 9. Neither a county nor a township may regulate or through any means impose
30 restrictions or requirements on animal feeding operations or on other agricultural
31 operations except as permitted under sections 11-33-02 and 58-03-11.
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1 SECTION 3. AMENDMENT. Section 11-33-02.1 of the North Dakota Century Code is
2 amended and reenacted as follows:
3 11-33-02.1. Farming and ranching regulations - Requirements - Limitations -
4 Definitions.
5 1. For purposes of this section:
6 a. "Concentrated feeding operation" means any livestock feeding, handling, or
7 holding operation, or feed yard, where animals are concentrated in an area that is
8 not normally used for pasture or for growing crops and in which animal wastes
9 may accumulate. The term does not include normal wintering operations for
10 cattle.
11 b. "Farming or ranching" means cultivating land for the production of agricultural
12 crops or livestock, or raising, feeding, or producing livestock, poultry, milk, or fruit.
13 The term does not include:
14 (1) The production of timber or forest products; or
15 (2) The provision of grain harvesting or other farm services by a processor or
16 distributor of farm products or supplies in accordance with the terms of a
17 contract.
18 c. "Livestock" includes beef cattle, dairy cattle, sheep, swine, poultry, horses, bison,
19 elk, fur animals raised for their pelts, and any other animals that are raised, fed,
20 or produced as a part of farming or ranching activities.
21 d. "Location" means the setback distance between a structure, fence, or other
22 boundary enclosing a concentrated feeding operation, including its animal waste
23 collection system, and the nearest occupied residence, the nearest buildings
24 used for nonfarm or nonranch purposes, or the nearest land zoned for residential,
25 recreational, or commercial purposes. The term does not include the setback
26 distance for the application of manure or for the application of other recycled
27 agricultural material under a nutrient management plan approved by the
28 department of health.
29 2. For purposes of this section, animal units are determined as follows:
30 a. One mature dairy cow, whether milking or dry, equals 1.33 animal units;
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1 b. One dairy cow, heifer, or bull, other than an animal described in
2 paragraph 1subdivision a equals 1.0 animal unit;
3 c. One weaned beef animal, whether a calf, heifer, steer, or bull, equals 0.75 animal
4 unit;
5 d. One cow-calf pair equals 1.0 animal unit;
6 e. One swine weighing fifty-five pounds [24.948 kilograms] or more equals
7 0.4 animal unit;
8 f. One swine weighing less than fifty-five pounds [24.948 kilograms] equals
9 0.1 animal unit;
10 g. One horse equals 2.0 animal units;
11 h. One sheep or lamb equals 0.1 animal unit;
12 i. One turkey equals 0.0182 animal unit;
13 j. One chicken, other than a laying hen, equals 0.008 animal unit;
14 k. One laying hen equals 0.012 animal unit;
15 l. One duck equals 0.033 animal unit; and
16 m. Any livestock not listed in subdivisions a through l equals 1.0 animal unit per
17 each one thousand pounds [453.59 kilograms] whether single or combined
18 animal weight.
19 3. A board of county commissioners may not prohibit or prevent the use of land or
20 buildings for farming or ranching and may not prohibit or prevent any of the normal
21 incidents of farming or ranching.
22 4. A board of county commissioners may not preclude the development of a
23 concentrated feeding operation in the county.
24 5. A board of county commissioners may not prohibit the reasonable diversification or
25 expansion of a farming or ranching operation.
26 6. A board of county commissioners may adopt regulations that establish different
27 standards for the location of concentrated feeding operations based on the size of the
28 operation and the species and type being fed.
29 7. If a regulation would impose a substantial economic burden on a concentrated feeding
30 operation in existence before the effective date of the regulation, the board of county
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