HB 1140: Another Perspective

by Bill Powers

There has been much discussion of HB 1140. The general opinion is that its  intention is to limit the ability to appeal county commissioner decisions, especially with regard to zoning and permitting of agricultural operations, like CAFOs. I have pointed out to both supporters and opponents of the legislation, that, while it does provide commissions with alternatives they apparently do not presently possess, it doesn’t entail that more CAFOs will be permitted. In fact, the legislation could work to do just the opposite. Over the short run, it will likely result in more CAFO permits. That may, indeed, be the intention of the bill’s author. However, if the constitution of commissioners would change, it could just as easily put a halt to all CAFOs in SD. In fact, the legislation may make it easier to do that than previously.

In engaging in these and similar discussions, I have come to the following conclusions. It seems that the trend in CAFO permitting is for it to become similar to that required for a building permit. Obtaining a building permit does not require a public hearing. In the vast majority of cases the criteria for obtaining the permit and the subsequent rules associated with the construction are sufficiently clear that it is generally an administrative matter. There is no room for public comment, except where a variance is requested. It is not inconceivable that a similar situation might prevail for CAFO permits. It also seems to me that it is not inconceivable that there could be CAFO permitting and inspection process that would not require public comment.

Given that this is the current trend, I think it is well worth preparing for it. This entails focusing our attention on the permitting and inspection process. Already DRA is working to try to strengthen the DENR CAFO permitting process. Even with that DENR permit, local counties have leeway in the permitting process. I presume that they cannot make the permit criteria weaker than DENR would stipulate. They could, however, make them more stringent. Once the permit and inspection process is in place, for the most part the process is out of the hands of commissioners and the public. There must remain still opportunities for public oversight, but they will, for the most part, be rare.

If this trend is continues, opportunities for influencing CAFO requirements and permitting process will become increasingly limited. Influence through the hearing and appeals process will become increasingly difficult and rare. There remain, however, other avenues of influence. Three immediately come to mind: education, commissioner elections, and the permitting and inspection process. These strategies are different from the guerrilla tactics employed in appeals and those like that in Turner County. Their intention is to
infiltrate and reform from within. The presumption of many is that CAFOs make good business sense. Communities like them because they bring in taxes. These presumptions are questionable and need to be addressed. Changing the  tax structure or subsidies for grains alters the fiscal environment. A different vision for rural SD is possible. It is not that such efforts are not already in place, but rather it may require a refocusing and
redistribution of resources.


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