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.
