23.0640.01000
Sixty-eighth
Legislative Assembly HOUSE BILL NO. 1423
of North Dakota
Introduced by
Representatives Thomas, Beltz, Fegley, Grueneich, Kempenich
Senators Elkin, Kessel, Luick, Myrdal
1 A BILL for an Act to amend and reenact sections 11-33-02.1, 23.1-01-04, and 58-03-11.1 of the
2 North Dakota Century Code, relating to a model zoning ordinance for animal feeding operations
3 and the North Dakota insurance reserve fund.
4 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
5 SECTION 1. AMENDMENT. Section 11-33-02.1 of the North Dakota Century Code is
6 amended and reenacted as follows:
7 11-33-02.1. Farming and ranching regulations - Requirements - Limitations -
8 Definitions.
9 1. For purposes of this section:
10 a. "Animal feeding operation" means a lot or facility, other than normal wintering
11 operations for cattle and an aquatic animal production facility, where the following
12 conditions are met:
13 (1) Animals, other than aquatic animals, have been, are, or will be stabled or
14 confined and fed or maintained for at least forty-five days in a twelve-month
15 period; and
16 (2) Crops, vegetation, forage growth, or postharvest residues are not sustained
17 in the normal growing season over any portion of the lot or facility.
18 b. "Farming or ranching" means cultivating land for the production of agricultural
19 crops or livestock, or raising, feeding, or producing livestock, poultry, milk, or fruit.
20 The term does not include:
21 (1) The production of timber or forest products; or
22 (2) The provision of grain harvesting or other farm services by a processor or
23 distributor of farm products or supplies in accordance with the terms of a
24 contract.
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1 c. "Livestock" includes beef cattle, dairy cattle, sheep, swine, poultry, horses, bison,
2 elk, fur animals raised for their pelts, and any other animals that are raised, fed,
3 or produced as a part of farming or ranching activities.
4 d. "Location" means the setback distance between a structure, fence, or other
5 boundary enclosing an animal feeding operation, including its animal waste
6 collection system, and the nearest occupied residence, the nearest buildings
7 used for nonfarm or nonranch purposes, or the nearest land zoned for residential,
8 recreational, or commercial purposes. The term does not include the setback
9 distance for the application of manure or for the application of other recycled
10 agricultural material under a nutrient management plan approved by the
11 department of environmental quality.
12 e. "Model zoning ordinance" means the most current model zoning ordinance
13 related to animal feeding operations published by the agriculture commissioner.
14 The setbacks provided in subdivision a of subsection 7 of section 23.1-06-15
15 must be identical to the setbacks provided in the model zoning ordinance.
16 2. For purposes of this section, animal units are determined as as provided in
17 subdivision c of subsection 7 of section 23.1-06-15.
18 3. A board of county commissioners may not prohibit or prevent the use of land or
19 buildings for farming or ranching and may not prohibit or prevent any of the normal
20 incidents of farming or ranching.
21 4. A board of county commissioners may not preclude the development of an animal
22 feeding operation in the county.
23 5. A board of county commissioners may not prohibit the reasonable diversification or
24 expansion of a farming or ranching operation.
25 6. A board of county commissioners may adopt regulations that establish different
26 standards for the location of animal feeding operations based on the size of the
27 operation and the species and type being fed.
28 7. If a regulation would impose a substantial economic burden on an animal feeding
29 operation in existence before the effective date of the regulation, the board of county
30 commissioners shall declare that the regulation is ineffective with respect to any
31 animal feeding operation in existence before the effective date of the regulation.
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1 8. a. A board of county commissioners may establish high-density agricultural
2 production districts in which setback distances for animal feeding operations and
3 related agricultural operations are less than those in other districts.
4 b. A board of county commissioners may establish, around areas zoned for
5 residential, recreational, or nonagricultural commercial uses, low-density
6 agricultural production districts in which setback distances for animal feeding
7 operations and related agricultural operations are greater than those in other
8 districts; provided, the low-density agricultural production districts may not extend
9 more than one and one-half miles [2.40 kilometers] from the edge of the area
10 zoned for residential, recreational, or nonagricultural commercial uses.
11 c. The setbacks provided for in this subsection may not exceed those established in
12 subdivision a of subsection 7 of section 23.1-06-15 unless the county can
13 demonstrate compelling, objective evidence specific to the county created by an
14 independent third party which requires a greater setback within the county, in
15 which case the setbacks may exceed those established in subdivision a of
16 subsection 7 of section 23.1-06-15 by no more than fifty percent. If a setback
17 under this subsection is greater than the corresponding setback established in
18 subdivision a of subsection 7 of section 23.1-06-15, aany person whose animal
19 feeding operation will be or has been affected by the applicable county
20 ordinanceor party may request the agriculture commissioner review the
21 ordinance. After the review, the agriculture commissioner shall provide a
22 summary of the review to the attorney general and request an opinion from the
23 attorney general regarding whether the ordinance and setback are lawful. An
24 opinion from the attorney general issued under this subsection governs the
25 actions of public officials until the opinion is superseded by a court of this state.
26 d. If the attorney general issues an opinion that concludes an ordinance or setback
27 is unlawful, and the county fails to formally revoke the ordinance or setback
28 before a lawsuit challenging the validity of the ordinance or setback is initiated,
29 the county may not utilize the North Dakota insurance reserve fund in connection
30 with defending the lawsuit. If a party successfully challenges an ordinance or
31 setback that previously has been determined to be unlawful by the attorney
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1 general and the county has failed to revoke the ordinance or setback, the court
2 must award the challenging party's actual attorneys' fees, costs, and expenses.
3 d.e. For purposes of this subsection, a "related agricultural operation"
4 means a facility that produces a product or byproduct used by an animal feeding
5 operation.
6 9. A person intending to construct an animal feeding operation may petition the board of
7 county commissioners for a determination whether the animal feeding operation would
8 comply with zoning regulations adopted under this section and filed with the
9 department of environmental quality under section 11-33-22 before the date the
10 petition was received by the county. The petition must contain a description of the
11 nature, scope, and location of the proposed animal feeding operation and a site map
12 showing road access, the location of any structure, and the distance from each
13 structure to the nearest section line. If the board of county commissioners does not
14 validly object to the petition within sixty days of receipt, the animal feeding operation is
15 deemed in compliance with the county zoning regulations. If the county allows animal
16 feeding operations as a conditional use, the conditional use regulations must be
17 limited to the board's authority under this section, and the approval process must
18 comply with this section. The county shall make a decisionvalid determination on the
19 application within sixty days of the receipt of a complete conditional use permit
20 application. If the board of county commissioners determines the animal feeding
21 operation would comply with zoning regulations or fails to object under this section, the
22 county may not impose additional zoning regulations relating to the nature, scope, or
23 location of the animal feeding operation later, provided an application is submitted
24 promptly to the department of environmental equality, the department issues a final
25 permit, and construction of the animal feeding operation commences within three
26 years from the date the department issues its final permit and any permit appeals are
27 exhausted. Any objection or determination that subsequently is reversed, set aside, or
28 invalidated by a court of this state, is not a valid objection or decision for the purpose
29 of calculating a procedural timeline under this section. A procedural timeline imposed
30 by this section continues to be in effect during the pendency of any appeal of a county
31 action or determination. A board of county commissioners may not:
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1 a. Regulate or impose zoning restrictions or requirements on animal feeding
2 operations or other agricultural operations except as expressly permitted under
3 this section; or
4 b. Impose water quality, closure, site security, lagoon, or nutrient plan regulations or
5 requirements on animal feeding operations; or
6 c. Charge fees or expenses of any kind totaling, in the aggregate, more than five
7 hundred dollars in connection with any permit, petition, application, or other
8 request relating to animal feeding operations.
9 10. A county may rely on the North Dakota insurance reserve fund for the defense of any
10 litigation regarding the validity of county ordinances, determinations, decisions, or
11 objections relating to animal feeding operations, if the county's ordinances regulating
12 animal feeding operations are identical to the model zoning ordinance. A county
13 ordinance relating to animal feeding operations which deviates from, supplements,
14 adds to, or fails to adopt the model zoning ordinance in its entirety may not utilize the
15 North Dakota insurance reserve fund for any litigation arising from or relating to county
16 ordinances, determinations, decisions, or objections relating to animal feeding
17 operations. If a party successfully challenges the validity of a county ordinance,
18 determination, decision, or objection related to animal feeding operations, the court
19 shall award the reimbursement of actual attorneys' fees, costs, and expenses.
20 11. For each new animal feeding operation located within a county, the county must
21 receive two percent of the cost of developing the animal feeding operation, paid from
22 the innovation loan fund under chapter 6-09.18, when:
23 a. The date construction of the animal feeding operation is complete; and
24 b. The animal feeding operation receives its final permit or regulatory approval to
25 operate. If a single animal feeding operation is located in more than one county,
26 the county within which a majority of the animal feeding operation, as measured
27 by square feet, is located must receive the cost-share from the innovation loan
28 fund.
29 SECTION 2. AMENDMENT. Section 23.1-01-04 of the North Dakota Century Code is
30 amended and reenacted as follows:
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1 23.1-01-04. Rulemaking authority - Limitations.
2 1. Except as provided in subsection 2, the department of environmental quality may not
3 adopt any rule for the purpose of the state administering a program under the federal
4 Clean Air Act [42 U.S.C. 7401 et seq.]; federal Clean Water Act [33 U.S.C. 1251 et
5 seq.]; federal Safe Drinking Water Act [42 U.S.C. 300 et seq.]; federal Resource
6 Conservation and Recovery Act [42 U.S.C. 6901 et seq.]; federal Comprehensive
7 Environmental Response, Compensation, and Liability Act [42 U.S.C. 9601 et seq.];
8 federal Emergency Planning and Community Right to Know Act of 1986 [42 U.S.C.
9 11001 et seq.]; federal Toxic Substances Control Act [42 U.S.C. 2601 et seq.]; or
10 federal Atomic Energy Act of 1954 [42 U.S.C. 2011 et seq.]; which is more stringent
11 than corresponding federal regulations that address the same circumstances. In
12 adopting the rules, the department may incorporate by reference corresponding
13 federal regulations.
14 2. The department may adopt rules more stringent than corresponding federal
15 regulations or adopt rules where there are no corresponding federal regulations, for
16 the purposes described in subsection 1, only if the department makes a written finding
17 after public comment and hearing and based upon evidence in the record, that
18 corresponding federal regulations are not adequate to protect the public health and
19 the environment of the state. Those findings must be supported by an opinion of the
20 department referring to and evaluating the public health and environmental information
21 and studies contained in the record which form the basis for the department's
22 conclusions.
23 3. If the department, upon petition by any person affected by a rule of the department,
24 identifies rules more stringent than federal regulations or rules where there are no
25 corresponding federal regulations, the department shall review and revise those rules
26 to comply with this section within nine months of the filing of the petition.
27 4. Any person issued a notice of violation, or a denial of a permit or other approval,
28 based upon a rule of the department which is more stringent than a corresponding
29 federal regulation or where there is no corresponding federal regulation, may assert a
30 partial defense to that notice, or a partial challenge to that denial, on the basis and to
31 the extent the department's rule violates this section by imposing requirements more
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1 stringent than corresponding federal regulations, unless the more stringent rule of the
2 department has been adopted in compliance with this section.
3 5. The department may not approve, review, or deny any permit application contingent
4 on whether an applicant is in compliance with applicable county or township zoning
5 ordinances.
6 SECTION 3. AMENDMENT. Section 58-03-11.1 of the North Dakota Century Code is
7 amended and reenacted as follows:
8 58-03-11.1. Farming and ranching regulations - Requirements - Limitations -
9 Definitions.
10 1. For purposes of this section:
11 a. "Animal feeding operation" means a lot or facility, other than normal wintering
12 operations for cattle and an aquatic animal production facility, where the following
13 conditions are met:
14 (1) Animals, other than aquatic animals, have been, are, or will be stabled or
15 confined and fed or maintained for a total of forty-five days or more in any
16 twelve-month period; and
17 (2) Crops, vegetation, forage growth, or postharvest residues are not sustained
18 in the normal growing season over any portion of the lot or facility.
19 b. "Farming or ranching" means cultivating land for the production of agricultural
20 crops or livestock, or raising, feeding, or producing livestock, poultry, milk, or fr