25.0603.02000
Sixty-ninth
Legislative Assembly
of North Dakota
Introduced by
Senators Thomas, Conley, Lemm, Weston
Representatives Beltz, Hauck
A BILL for an Act to amend and reenact section 11-33-02.1, subdivision a of subsection 7 of
section 23.1-06-15, and section 58-03-11.1 of the North Dakota Century Code, relating to the
regulation of odors in an animal feeding operation and zoning authority over animal feeding
operations in counties and townships.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. AMENDMENT. Section 11-33-02.1 of the North Dakota Century Code is
amended and reenacted as follows:
11-33-02.1. Farming and ranching regulations - Requirements - Limitations -
Definitions.
1.For purposes of this section:
a."Animal feeding operation" means a lot or facility, other than normal wintering
operations for cattle and an aquatic animal production facility, where the following
conditions are met:
(1)Animals, other than aquatic animals, have been, are, or will be stabled or
confined and fed or maintained for at least forty-five days in a twelve-month
period; and
(2)Crops, vegetation, forage growth, or postharvest residues are not sustained
in the normal growing season over any portion of the lot or facility.
b."Farming or ranching" means cultivating land for the production of agricultural
crops or livestock, or raising, feeding, or producing livestock, poultry, milk, or fruit.
The term does not include:
(1)The production of timber or forest products; or
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SENATE BILL NO. 2174
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(2)The provision of grain harvesting or other farm services by a processor or
distributor of farm products or supplies in accordance with the terms of a
contract.
c."Livestock" includes beef cattle, dairy cattle, sheep, swine, poultry, horses, bison,
elk, fur animals raised for their pelts, and any other animals that are raised, fed,
or produced as a part of farming or ranching activities.
d."Location" means the setback distance between a structure, fence, or other
boundary enclosing an animal feeding operation, including its animal waste
collection system, and the nearest occupied residence, the nearest buildings
used for nonfarm or nonranch purposes, or the nearest land zoned for residential,
recreational, or commercial purposes. The term does not include the setback
distance for the application of manure or for the application of other recycled
agricultural material under a nutrient management plan approved by the
department of environmental quality.
2.For purposes of this section, animal units are determined as as provided in
subdivision c of subsection 7 of section 23.1-06-15.
3.A board of county commissioners may not prohibit or prevent the use of land or
buildings for farming or ranching and may not prohibit or prevent any of the normal
incidents of farming or ranching.
4.AExcept as provided in this section, a board of county commissioners may not
preclude the development of an animal feeding operation in the county.
5.A board of county commissioners may not prohibit the reasonable diversification or
expansion of a farming or ranching operation.
6.A board of county commissioners may adopt regulations that establish different
standards for the location of animal feeding operations based on the size of the
operation and the species and type being fed.
7.If a regulation would impose a substantial economic burden on an animal feeding
operation in existence before the effective date of the regulation, the board of county
commissioners shall declare that the regulation is ineffective with respect to any
animal feeding operation in existence before the effective date of the regulation.
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8.a.A board of county commissioners may establish high-density agricultural
production districts in which setback distances for animal feeding operations and
related agricultural operations are less than those in other districts.
b.A board of county commissioners may establish, around areas zoned for
residential, recreational, or nonagricultural commercial uses, low-density
agricultural production districts in which setback distances for animal feeding
operations and related agricultural operations are greater than those in other
districts; provided, the low-density agricultural production districts may not extend
more than one and one-half miles [2.40 kilometers] from the edge of the area
zoned for residential, recreational, or nonagricultural commercial uses.
c.A board of county commissioners may not adopt or enforce setbacks applicable
to animal feeding operations that exceed the setback distances provided in
subsection 7 of section 23.1-06-15, except setback distances may be reduced or
extended based on the results of the odor footprint tool developed by the
agriculture commissioner. A county may not use an odor annoyance free
percentage exceeding ninety-four percent.
d.For purposes of this subsection, a "related agricultural operation" means a facility
that produces a product or byproduct used by an animal feeding operation.
9.a.A person intending to construct an animal feeding operation may petition the
board of county commissioners for a determination whether the animal feeding
operation would comply with zoning regulations adopted under this section and
filed with the department of environmental quality under section 11-33-22 before
the date the petition was received by the county.
b.The petition must contain a description of the nature, scope, and location of the
proposed animal feeding operation and a site map showing road access, the
location of any structure, and the distance from each structure to the nearest
section line.
c.If the board of county commissioners does not validly object to the petition within
sixty days of receipt, the animal feeding operation is deemed in compliance with
the county zoning regulations. If the county allows animal feeding operations as a
conditional use, the conditional use regulations must be limited to the board's
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authority under this section, and the approval process must comply with this
section. The county shall make a valid determination on the application within
sixty days of the receipt of a complete conditional use permit application.
d.If the board of county commissioners determines the animal feeding operation
would comply with zoning regulations or fails to object under this section, the
county may not impose additional zoning regulations relating to the nature,
scope, or location of the animal feeding operation later, provided an application is
submitted promptly to the department of environmental equality, the department
issues a final permit, and construction of the animal feeding operation
commences within three years from the date the department issues its final
permit and any permit appeals are exhausted. Any objection or determination that
subsequently is reversed, set aside, or invalidated by a court of this state, is not a
valid objection or decision for the purpose of calculating a procedural timeline
under this section.
e.A procedural timeline imposed by this section continues to be in effect during the
pendency of any appeal of a county action or determination.
f.A board of county commissioners may not:
a.(1)Regulate or impose zoning restrictions or requirements on animal feeding
operations or other agricultural operations except as expressly permitted
under this section;
b.(2)Impose water quality, closure, site security, lagoon, or nutrient plan
regulations or requirements on animal feeding operations;
c.(3)Charge fees or expenses of any kind totaling, in the aggregate, more than
five hundred dollars in connection with any permit, petition, application, or
other request relating to animal feeding operations; or
d.(4)Require an existing animal feeding operation to have a permit for
improvements or other modifications of an operation that is in current
compliance with state and federal regulations or require an existing
operation to have a permit for improvements or other modifications that
bring the operation into compliance with state or federal regulations, if the
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modifications or improvements do not cause the operation to exceed animal
numbers of the setback requirement.
10.If a party challenges the validity of a county ordinance, determination, decision, or
objection related to animal feeding operations, the court shall award the prevailing
party actual attorney's fees, costs, and expenses.
SECTION 2. AMENDMENT. Subdivision a of subsection 7 of section 23.1-06-15 of the
North Dakota Century Code is amended and reenacted as follows:
a.In a county or township that does not regulate the nature, scope, or location of an
animal feeding operation under section 11-33-02.1 or section 58-03-11.1, the
department shall require that any new animal feeding operation permitted under
chapter 61-28 be set back from any existing residence, church, school, business,
public building, park, or campground.
(1)If there are fewer than three hundred animal units, there is no minimum
setback requirement.
(2)If there are at least three hundred animal units but no more than one
thousand animal units, the setback for any animal operation is one-half mile
[.80 kilometer]one - fourth mile [.40 kilometer] .
(3)If there are at least one thousand one animal units but no more than
twothree thousand five hundred animal units, the setback for a hog
operation is three-fourths mile [1.20 kilometers], and the setback for any
other animal operation is one-half mile [.80 kilometer].
(4)If there are at least two thousand one animal units but no more than five
thousand animal units, the setback for a hog operation is one mile [1.60
kilometers], and the setback for any other animal operation is three-fourths
mile [1.20 kilometers].
(5)If there are at least fivethree thousand five hundred one or moreanimal units
but no more than seven thousand five hundred animal units, the setback for
a hog operation is one and one-half miles [2.40 kilometers], and the setback
for any other animal operation is one mile [1.60 kilometers]three - fourths
mile [1.20 kilometers].
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(5)If there are at least seven thousand five hundred one animal units but no
more than ten thousand animal units, the setback for any animal operation
is one mile [1.60 kilometers].
(6)If there are at least ten thousand one animal units but no more than
seventeen thousand five hundred animal units, the setback for any animal
operation is one and one - fourth miles [2.01 kilometers].
(7)If there are at least seventeen thousand five hundred one animal units but
no more than twenty - five thousand animal units, the setback for any animal
operation is one and one - half miles [2.41 kilometers].
(8)If there are twenty - five thousand one or more animal units, the setback for
any animal operations is one and three - fourths miles [2.82 kilometers].
SECTION 3. AMENDMENT. Section 58-03-11.1 of the North Dakota Century Code is
amended and reenacted as follows:
58-03-11.1. Farming and ranching regulations - Requirements - Limitations -
Definitions.
1.For purposes of this section:
a."Animal feeding operation" means a lot or facility, other than normal wintering
operations for cattle and an aquatic animal production facility, where the following
conditions are met:
(1)Animals, other than aquatic animals, have been, are, or will be stabled or
confined and fed or maintained for a total of forty-five days or more in any
twelve-month period; and
(2)Crops, vegetation, forage growth, or postharvest residues are not sustained
in the normal growing season over any portion of the lot or facility.
b."Farming or ranching" means cultivating land for the production of agricultural
crops or livestock, or raising, feeding, or producing livestock, poultry, milk, or fruit.
The term does not include:
(1)The production of timber or forest products; or
(2)The provision of grain harvesting or other farm services by a processor or
distributor of farm products or supplies in accordance with the terms of a
contract.
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c."Livestock" includes beef cattle, dairy cattle, sheep, swine, poultry, horses, bison,
elk, fur animals raised for their pelts, and any other animals that are raised, fed,
or produced as a part of farming or ranching activities.
d."Location" means the setback distance between a structure, fence, or other
boundary enclosing an animal feeding operation, including its animal waste
collection system, and the nearest occupied residence, the nearest buildings
used for nonfarm or nonranch purposes, or the nearest land zoned as a
residential, recreational, or commercial zoning district. The term does not include
the setback distance for the application of manure or for the application of other
recycled agricultural material under a nutrient management plan approved by the
department of environmental quality.
2.For purposes of this section, animal units are determined as provided under
subdivision c of subsection 7 of section 23.1-06-15.
3.A board of township supervisors may not prohibit or prevent the use of land or
buildings for farming or ranching or any of the normal incidents of farming or ranching.
4.AExcept as provided in this section, a regulation may not preclude the development of
an animal feeding operation in the township.
5.A board of township supervisors may not prohibit the reasonable diversification or
expansion of a farming or ranching operation.
6.A board of township supervisors may adopt regulations that establish different
standards for the location of animal feeding operations based on the size of the
operation and the species and type being fed.
7.If a regulation would impose a substantial economic burden on an animal feeding
operation in existence before the effective date of the regulation, the board of township
supervisors shall declare that the regulation is ineffective with respect to any animal
feeding operation in existence before the effective date of the regulation.
8.a.A board of township supervisors may establish high-density agricultural
production districts in which setback distances for animal feeding operations and
related agricultural operations are less than those in other districts.
b.A board of township supervisors may establish, around areas zoned for
residential, recreational, or nonagricultural commercial uses, low-density
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agricultural production districts in which setback distances for animal feeding
operations and related agricultural operations are greater than those in other
districts; provided, the low-density agricultural production districts may not extend
more than one-half mile [0.80 kilometer] from the edge of the area zoned for
residential, recreational, or nonagricultural commercial uses.
c.A board of township supervisors may not adopt or enforce setbacks applicable to
animal feeding operations that exceed the setback distances provided in
subsection 7 of section 23.1-06-15, except setback distances may be reduced or
extended based on the results of the odor footprint tool developed by the
agriculture commissioner. A township may not use an odor annoyance free
percentage exceeding ninety-four percent.
d.For purposes of this subsection, a "related agricultural operation" means a facility
that produces a product or byproduct used by an animal feeding operation.
9.a.A person intending to construct an animal feeding operation may petition the
board of township supervisors for a determination whether the animal feeding
operation would comply with zoning regulations adopted under this section and
filed with the department of environmental quality under section 58-03-17 before
the date the petition was received by the township.
b.The petition must contain a description of the nature, scope, and location of the
proposed animal feeding operation and a site map showing road access, the
location of any structure, and the distance from each structure to the nearest
section line.
c.If the board of township supervisors does not validly object to the petition within
sixty days of receipt, the animal feeding operation is deemed in compliance with
the township zoning regulations. If the township allows animal feeding operations
as a conditional use, the conditional use regulations must be limited to the
board's authority under this section, and the approval process must comply with
this section. The township shall make a valid determination on the application
within sixty days of the receipt of a complete conditional use permit application.
d.If the board of township supervisors determines the animal feeding operation
would comply with zoning regulations or fails to object under this section, the
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township may not impose additional zoning regulations relating to the nature,
scope, or location of the animal feeding operation later, provided an application is
submitted promptly to the department of environmental quality, the department
issues a final permit, and construction of the animal feeding operation
commences within three years from the date the department issues its final
permit and any permit appeals are exhausted. Any objection or determination that
subsequently is reversed, set aside, or invalidated by a court of this state, is not a
valid objection or decision for the purpose of calculating a procedural timeline
under this section.
e.A procedural timeline imposed by this section continues to be in effect during the
pendency of any appeal of a township action or determination.
f.A board of township supervisors may not:
a.(1)Regulate or impose zoning restrictions or requirements on animal feeding
operations or other agricultural operations except as expressly permitted
under this section;
b.(2)Impose water quality, closure, site security, lagoon, or nutrient plan
regulations or requirements on animal feeding operations;
c.(3)Charge fees or expenses of any kind totaling, in the aggregate, more than
five hundred dollars in connection with any permit, petition, application, or
other request relating to animal feeding operations; or
d.(4)Require an existing animal feeding operation to have a permit for
improvements or other modifications of an operation that is in current
compliance with state and federal regulations or require an existing
operation to have a permit for improvements or other modifications that
bring the operation into compliance with state or federal regulations, if the
modifications or improvements do not cause the operation to exceed animal
numbers of the setback requirement.
10.If a party challenges the validity of a township ordinance, determination, decision, or
objection related to animal feeding operations, the court shall award the prevailing
party actual attorney's fees, costs, and expenses.
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