‘We used to do things for posterity. Now we do things for ourselves and leave the bill to posterity.’ Signs of this attitude are seen in the current and historical misuse (and mismanagement) of the state’s waters. Both groundwater and surface waters of the state are held in trust by the government for the benefit of the citizens of the state. Waters of the state are affected by CAFOs. CAFOs are governed by South Dakota law as well as local county ordinances. In this opinion piece I will show how state and county governments have dropped the ball regarding CAFO regulations. CAFOs can effect both groundwater and surface waters. I discuss in this piece requirements for financial responsibility of a CAFO, and how that can affect the waters of the state. This piece is not a conversation on the pros and cons of a CAFO or of its economic efficiencies.
The purpose of ‘financial assurance’ is to secure the testing and replacement of any potentially contaminated wells and water within areas near a CAFO, and to ensure proper closure of a CAFO should the operator elect to close or should the closure occur for some other reason. Oklahoma by way of example has a financial assurance requirements which are reasonably fair from both the operator’s and the public’s perspective.
Why require financial assurance of a business which affects the environment? There are plenty of examples of businesses shutting down and not cleaning up after themselves. South Dakota requires financial assurance terms for oil well permits, for mining operations, for
sand and gravel permits, for wind turbines, but not for CAFOs. This noticeable absence of financial terms is also followed by counties who hold legal authority over CAFOs. Consider the current status of surface water in the state. This is from the state’s official 2016 assessment of surface water quality: “Currently, 21.3% of the assessed stream miles fully support all assigned beneficial uses; a decrease from 30.6% in the 2014 Integrated Report. 78.7% do not presently support one or more uses. The high percentage of impairment can be attributed largely to high levels of TSS, E. coli, and fecal coliform bacteria.” Groundwater is also put at risk by CAFO operations. In a 2006 study in Idaho samples from six private wells formerly used as sources for drinking water by the residents of a nearby CAFO were collected to assess the impact on the quality of the local groundwater. The samples were found contaminated by antimicrobials and also contained elevated concentrations of nitrate and ammonium. It is telling that South Dakota requires monitoring wells for 96 CAFOs. My concern is practical. To whom do the neighbors turn if a CAFO cannot clean up contamination at the closure of its operations? Discussing a CAFO Chapter 11 bankruptcy filing in Indiana, a local newspaper reported, “If a CAFO ceases operations, the state of Indiana apparently has no way to ensure an environmental cleanup because the state does not require owners/operators of CAFOs to provide financial assurance for closure.”
What happens in an abandonment of the operation, in a Chapter 7 Bankruptcy filing, or in a closure when the operation has no capital? How does an agency hold such an operator responsible for clean up? In this arena state and local governments have indeed dropped the ball.
Both state and counties have broad jurisdiction over writing CAFO laws and regulations. Both write and oversee permitting. The difference between state and county jurisdiction is not as important as the fact that they fail to deal correctly with an exit plan, also known as financial assurance, for CAFOs. CAFO laws are complicated. They involve providing soil and water data, nutrient management plans, buffer zones, maintaining effluent limits, hiring an engineer to ‘certify’ an operation, setback requirements, water right permits, surface water discharge permits, rules for treatment ponds or lagoons and so forth. Taken together these laws can be called a code. A code is a comprehensive set of rules meant to be a complete system in a particular area of law. But in South Dakota it doesn’t.
State permitting rules require no environmental insurance or other type of financial assurance for a CAFO. CAFOs are permitted in the following counties but the counties have no financial assurance requirements: Minnehaha County, Lawrence County, Brown County, Spink County, to name but a few. Clay County requires insurance in an unspecified amount to take care of closure and clean-up. Brookings and Hughes require environmental insurance with a $100,000. minimum. The efforts of these counties are very incomplete but do start to recognize a way to remedy the risks.
In testimony to the US Senate the USGS Associate Director stated, “The USGS has found CAFOs to be a source of nutrient, pharmaceutical, and metal contaminants in nearby waters and lands receiving wastes.” Are state and county officials in charge of the stewardship of public waters in favor of continued indifference to clean, potable, usable water?
David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.
