Proposed Ordinance Amendments for CFO / CAFOs in Delaware County

MUNCIE, IN - If you care about the environment, please notify your family, friends, and neighbors about this upcoming hearing.  Urge them to attend this hearing and speak up if they feel the amendments need to be changed or they agree with them.

PLEASE TAKE NOTICE that on January 3, 2008, the Delaware-Muncie Metropolitan Plan Commission will hold a public hearing for consideration of proposed amendments to the text of the Delaware County Comprehensive Zoning Ordinance, affecting the unincorporated territory of Delaware County, Indiana, regarding the creation of a new zone category, the F-1 Intense Farming Zone, that is intended to be used for confined feeding operations (CFOs) and/or concentrated animal feeding operations (CAFOs).  The intent of the proposed amendments is to exclude CFOs and CAFOs from the existing general farming zone and the AB Agricultural Bio-enterprise Zone and create a new category with specific performance standards for CFO/CAFO operations.  The proposed amendments also include several new definitions related to CFO and CAFO operations. 

The hearing will take place on the above date, beginning at 6:30 p.m. in the Commissioner’s Courtroom, 3rd Floor, Delaware County Building, 100 West Main Street, Muncie, Indiana.  During consideration of the amendment, the Commission may approve, amend, delete or modify all, or a part of, said amendments and will forward a recommendation to the Board of County Commissioners for final action.  Written objections and recommendations regarding the amendments which are filed with the Secretary of the Commission before the hearing will be considered.  Oral comments concerning the proposed amendment will be heard during the hearing.  The hearing may be continued from time to time as may be found necessary.  Copies of the proposed amendment will be on file and may be examined in the Plan Commission Office, Delaware County Building, Room 206, 100 West Main Street, Muncie, Indiana, during normal office hours of Monday through Friday, 8:30 a.m. to 4:30 p.m. 

                                                Marta Moody, Secretary

BACKGROUND:  The Committee discussed 3 approaches as set forth below: 

1. Rezoning Option with final decision by Board of County Commissioners
2. Special Use or Special Exception Option with final decision by BZA
3. Permitted Use with Performance Standards Option

THE DRAFT PROPOSAL ON THE FOLLOWING PAGES IS BASED ON OPTION 1. 
 
 
 
 

DELAWARE COUNTY COMPREHENSIVE ZONING ORDINANCE

AMEND ARTICLE XXXIII, SECTION 2 TERMS AND MEANING BY ALPHABETICALLY INSERTING THE FOLLOWING, WITH APPROPRIATE RECODIFICATION: 

Animal Feeding Operation (AFO): 

A confined feeding lot or facility, other than an aquatic animal production facility, where both of 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 at least forty-five (45) days  in any twelve (12) month period; and 2)  crops, vegetation, forage growth, or post harvest residues are not sustained in the normal growing season over at least fifty percent (50%) of the lot or facility.

[State definition per 327 IAC 5-4-3] 

Animal Unit (AU):

A unit of measurement used to determine the total number of single animals or combination of animal types and sizes which are fed, maintained, or stabled at a location/site/property that is not a CFO or CAFO, as follows: 

Concentrated Animal Feeding Operation (CAFO):  

An AFO that is one of the following:  a large CAFO; a medium CAFO; or designated as a CAFO by the Indiana Department of Environmental Management.   Two or more AFOs under common ownership are considered to be a single AFO for the purposes of determining the number of animals at an operation, if the AFOs adjoin each other or if the AFOs  use a common area or system for land application of manure, litter or process wastewater.

[State definition 327 IAC 5-4-3] 

Concentrated Animal Feeding Operation – Large:

An AFO that stables or confines at least as many as the number of animals specified in any of the following categories:

1. 700 mature dairy cows, whether milked or dry
2. 1,000 veal calves
3. 1,000 cattle, other than mature dairy cows and veal calves, including but not limited to heifers, steers, bulls and cow/calf pairs
4. 2,500 swine each weighing at least 55 pounds
5. 10,000 swine each weighing less than 55 pounds
6. 500 horses
7. 10,000 sheep or lambs
8. 55,000 turkeys
9. if the AFO uses a liquid manure handling system, either of the following:

   30,000 laying hens or broilers, or 

   5,000 ducks

10. if the AFO uses other than a liquid manure handling system, any of the following:

   125,000 chickens, other than laying hens,

   82,000 laying hens,

   30,000 ducks

[State definition 327 IAC 5-4-3] 

Concentrated Animal Feeding Operation – Medium:

An AFO, where the type and number of animals that are stabled or confined at the operation falls within the following ranges:

1. 200 to 699 mature dairy cows, whether milked or dry
2. 300 to 999 veal calves
3. 300 to 999 cattle, other than mature dairy cows or veal calves, including but not limited to heifers, steers, bulls and cow/calf pairs
4. 750 to 2,499 swine each weighing at least 55 pounds
5. 3,000 to 9,999 swine each weighing less than 55 pounds
6. 16,500 to 54,999 turkeys
7. if the AFO uses a liquid manure handling system, either of the following:

9,000 to 29,999 laying hens or broilers

1,500 to 4,999 ducks

8. if the AFO uses other than a liquid manure handling system, any of the following:

37,500 to 124,999 chickens, other than laying hens

25,000 to 81,999 laying hens

10,000 to 29,999 ducks

[State definition 327 IAC 5-4-3] 

Concentrated Aquatic Animal Production Facilities:

A hatchery, fish farm, or other facility that contains, grows, or holds aquatic animals in either of the following categories:

1. Cold water fish species or other cold water aquatic animals in ponds, raceways, or other similar structures which discharge at least 30 days per year but does not include:
   
   1. Facilities which produce less than 9,090 harvest weight kilograms (approximately 20,000 pounds) of aquatic animals per year; and
   2. Facilities which feed less than 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding.
2. Warm water fish species or other warm water aquatic animals in ponds, raceways, or other similar structures which discharge at least 30 days per year, but does not include:
   
   1. Closed ponds which discharge only during periods of excess runoff;
   2. Facilities which produce less than 45,454 harvest weight kilograms (approximately 100,000 pounds) of aquatic animals per year.

Cold water aquatic animals include, but are not limited to, the Salmonidae family of fish, e.g. trout and salmon.  Warm water aquatic animals include, but are not limited to, the Ameiuride, Centrarchidae and Cyprinidae families of fish, e.g. catfish, sunfish and minnows, respectively.

[Federal definition, also used by state, from 40CFR122.24 and Appendix C] 
 

Confined Feeding: 

Confined feeding for purposes of this Ordinance means the confined feeding of animals for food, fur, or pleasure purposes in lots, pens, ponds, sheds, or buildings where:

1. animals are confined, fed, and maintained for at least forty-five (45) days during any twelve (12) month period; and
2. ground cover or vegetation is not sustained over at least fifty percent (50%) of the animal confinement area.

The term does not include the following: 1)  a livestock market where animals are assembled from at least two sources to be publicly auctioned or privately sold on a commission basis and that is under state or federal supervision; and 2)  a livestock sale barn or auction market where animals are kept for not more than ten (10) days.

[State definition 327 IAC 16-2-4] 

Confined Feeding Operation (CFO):

Confined feeding operation for purposes of this Ordinance means:

1. any confined feeding of:

1. at least three hundred (300) cattle;

2. at least six hundred (600) swine or sheep; or
3. at least thirty thousand (30,000) fowl.
2. any animal feeding operation electing to be subject to state law; or
3. any animal feeding operation that is causing a violation of
   
   1. water pollution control laws;
   2. any rules of the water pollution control board; or
   3. state statute (IC 13-18-10).

The term CFO is intended to include all of the production area involved in the operation.  Two or more operations under common ownership are considered to be a single operation for purposes of determining the number of animals at an operation if they adjoin each other or if they  use a common area or system for the disposal of waste.

[State definition 327 IAC 16-2-5] 

Drainage Inlet:

Any surficial opening to an underground tile drainage system that drains to waters of the state and includes water and sediment control basins. 

Existing CFO/CAFO:

A CFO or a CAFO is considered to be existing for purposes of this ordinance if the CFO’s or CAFO’s confinement structure(s) or manure storage structure(s) have been constructed or if the Indiana Department of Environmental Management (IDEM) has issued a draft or final CFO or CAFO permit as of the effective date of amendment of this ordinance that institutes local regulations dealing with CFO and CAFO uses. 

Filter Strip:

A relatively uniform and maintained vegetated area used for collecting sediment and cleansing run-off. 

Flood Plain:

The channel proper and the areas adjoining any wetland, lake or watercourse, which have been, or hereafter may be covered by the regulatory flood.  The flood plain includes both the floodway and the floodway fringe districts as set forth in the Flood Plain Management Ordinance.  The regulatory flood is a flood having a one percent probability of being equaled or exceeded in any given year, as calculated by a method and procedure acceptable to and approved by the Indiana Department of Natural Resources and the Federal Emergency Management Agency. 

Institution for Human Care:  Residential facilities that provide on-site living and/or medical assistance for those unable to independently care for themselves such as a nursing home, an assisted living facility, a convalescent facility, or similar facility. 

Manure:

Any animal feces or urine and any biological material such as bedding which has been in contact with animal feces or urine and any storm water, groundwater, or process water that has been commingled with animal feces or urine.  The term is defined to include manure, bedding, compost and raw materials or other materials commingled with manure or set aside for disposal. 

Manure Application:

The placement of liquid or solid manure by spraying or spreading onto the land surface, injection below the land surface, or incorporation into the soil. 

PAAQL:  The Purdue Agricultural Air Quality Laboratory where odor setback guidelines and modeling software were developed which is accessible at the following web address: http://pasture.ecn.purdue.edu/~odor/index.htm . 

Private School:  An accredited nonpublic school, private or parochial, that is determined to be in compliance with the standards for the recognition of nonpublic schools as set by the Indiana State Board of Education. 

Process Water:

Any water that comes in contact with animals, pens, barns, manure, litter, bedding, feed, or milk, eggs or other commercial products and any spillage or release of such water. 

Production Area:

Production area means that part of a CFO and CAFO that includes the animal confinement area, the manure storage area, the raw materials storage area, and the waste containment areas.  The animal confinement area includes but is not limited to open lots, housed lots, feedlots, confinement houses, stall barns, milkrooms, milking  centers, cowyards, barnyards, medication pens, walkers, animal walkways, and stables.  The manure storage area includes but is not limited to lagoons, runoff ponds, storage sheds, stockpiles, under house or pit storages, liquid impoundments, static piles, and composting piles.  The raw materials storage area includes but is not limited to feed lots, silage bunkers, and bedding materials.  The waste containment area includes but is not limited to settling basins and areas within berms and diversions which separate uncontaminated storm water.  Also included in the definition of production area is any egg washing or egg processing facility, and any area used in the storage, handling, treatment or disposal of mortalities.

[Federal definition 40 CFR 122.23(b)(8)] 

Public Water Supply Surface Intake Structure:

Any structure used for the purpose of providing water through a public water supply system. 

Public Water Supply Well:

Any well that provides water to the public through a water distribution system that serves at least twenty-five (25) persons per day for drinking, domestic use or other purposes, or that has at least fifteen (15) service connections. 

Sensitive Area:

Sites where conditions pose a specific water quality threat to one or more of the following:

• Aquifers used as a source of drinking water
• Public water supply wells
• Wellhead protection areas
• Drinking water supply reservoirs
• Areas requiring special protection such as wetlands (except for wetlands constructed for manure management), Karst terrain, critical habitat of an endangered species, or natural areas including parks, and nature preserves.

Surface Waters of the State:

A lake, reservoir, marsh, waterway or other water under public ownership, jurisdiction or lease. 
 
 
 

CREATE A NEW ZONE CATEGORY THAT WOULD PRIMARILY BE FOR CFO/CAFO ANIMAL PRODUCTION OPERATIONS. 

• Article XII,  F Farming Zone, Section 1 Permitted Uses, Item 2 would be amended as follows (new language shown in blue):

2. Agricultural Uses including: field crops; dairies; tree crops; flower gardening; nurseries; orchards; horse farms and farms for the breeding, raising and sale of chickens, hogs, cattle, turkeys, sheep or other animals that are not confined feeding operations or concentrated animal feeding operations; breeding, boarding or sale of dogs; aquariums that are not concentrated aquatic animal production facilities.  All such animal uses (that are not CFO’s or CAFO’s) and buildings or premises shall be at least two hundred (200) feet from a dwelling (other than a farm dwelling), school, church, hospital or institution for human care and shall not exceed two (2) animal units per acre. 

• Article XII-A, AB Agricultural Bio-Enterprise Zone, Section 2 Permitted Uses would be amended as follows (new language shown in blue):

1. Agricultural uses excluding confined feeding operations and concentrated animal feeding operations : All agricultural production and processes permissible in the F Farming Zone shall be allowed in the AB Agricultural Bio-Enterprise Zone.  Examples of permitted practices include: 

1. Field crops (including hydroponics, geoponics, greenhouse production)
2. Aquaculture
3. Apiculture
4. Horticulture
5. Viticulture
6. Forestry

g. Animal and poultry husbandry, excluding confined feeding operations and  concentrated animal feeding operations

      h.   Other direct agricultural production activities 

• A new Article XII-B would be inserted for a new zone category as follows:

ARTICLE XII-B F-1 INTENSE FARMING ZONE 

Section 1 GENERAL PURPOSE AND INTENT 

The F-1 Intense Farming Zone is intended to provide areas within Delaware County for confined feeding operations.   The purpose is to recognize certain needs of the agricultural community, enhance the right-to-farm protections, promote agricultural economic development, and provide for responsible co-existence with residential neighbors.  Both the F and F-1 Zones are considered agricultural districts that are intended to co-exist in the rural areas of the County.  Due to the intensive nature of the agricultural uses in the F-1 Zone, non-farm related residential use is discouraged, residential subdivisions are prohibited, and specific development standards have been instituted to address the needs and impacts of these more intensive uses.

Section 2. PERMITTED USES

All existing buildings, structures and land in an F-1 Zone and any buildings, structures and land to be added, erected, altered, or enlarged in an F-1 Zone shall be used only for the following: 

1. Confined feeding operations (CFO’s) and concentrated animal feeding operations (CAFO’s) provided they comply with the CFO/CAFO PERFORMANCE STANDARDS set forth herein and all other applicable local, state and federal requirements.
2. Concentrated aquatic animal production facilities provided they comply with the CFO/CAFO PERFORMANCE STANDARDS set forth herein and all other applicable local, state and federal requirements.
3. Agricultural uses as set forth and regulated in the F Farming Zone.
4. Sawmills.
5. Wind farms containing wind energy conversion systems for private or commercial use.
6. Grain elevators, communication towers and equipment, chimney stacks, water tanks, silos, windmills and like structures as regulated in this ordinance including Article X, Section 1.
7. Railroad rights-of-way including yards, storage, switching or shops owned by the railway company.
8. Organic composting or mulching facility provided the operation is conducted in compliance with all applicable local, state and federal requirements.

Section 3. SPECIAL EXCEPTIONS

The following uses are considered special exceptions to the permitted uses in the F-1 Zone and may be permitted only by approval of the Board of Zoning Appeals through the same process used for a variance of use as set forth in this ordinance.    

1. Single family dwelling as regulated in the F Farming Zone.
2. Seasonal work camps for farm workers as regulated in Article XXXI, Section 9.
3. Home occupations as regulated in Article XXXI, Section 8.

As a condition of granting a special exception for a residential use in the F-1 Zone, the owner must sign a notice of agricultural activity acknowledging that confined feeding operations are a permitted use of the surrounding property classified in the F-1 Zone and that the operations do not constitute a nuisance so long as they are not negligently maintained, do not endanger human health and do not cause bodily injury to third parties.  The Grant of Appeal for a special exception and the accompanying notice of agricultural activity shall be recorded in the Office of the Delaware County Recorder.

Section 4 LOT WIDTH, FRONTAGE AND AREA

The lot width at the building line and public road frontage of a lot shall be not less than two hundred and fifty (250) feet.  The minimum lot area shall be forty (40) acres, except that a single family dwelling for which a special exception has been granted may have a minimum lot area of not less than two (2) acres.

Section 5. SETBACKS

There shall be a public road setback of not less than 100 feet in depth, measured from the right-of-way line to the front wall of a building. 

There shall be side and rear yard setbacks of not less than fifty (50) feet in depth, measured at right angles to the side and rear property lines. 

No building or structure shall be closer to a dwelling than two hundred (200) feet.

Section 6.   HEIGHT

No building or structure shall exceed forty-five (45) feet in height unless otherwise regulated by Article X, Section 1.

Section 7. CFO/CAFO PERFORMANCE STANDARDS

A Purpose and Intent:  The purpose of these standards is to acknowledge that agriculture remains an essential component of the Delaware County economy and that, through technology and market trends, agricultural activities have evolved into agricultural industries.  These standards apply to any Confined Feeding Operation or Concentrated Animal Feeding Operation and are intended to minimize the impact of such feeding operations on surrounding land uses and the environment.  These standards are in addition to the rules, regulations and procedures set forth by the Indiana Department of Environmental Management (IDEM), the United States Environmental Protection Agency (USEPA), or any other agency or board designated at the federal, state or local level to monitor or regulate confined feeding operations.  In the case of conflicting standards and/or regulations, the more restrictive shall prevail.  Compliance with these standards shall be maintained throughout the life and proper closure of any operation.

B Permitting Requirements:  An application for any local building, zoning or improvement location permit shall include the following information.  All information must be submitted in order for permits to be issued.  Surety, in a manner satisfactory to the Board of County Commissioners, may be required as a condition of issuing a permit, or upon notice of intent to discontinue an operation, to ensure that the facility will be operated and closed as set forth herein:

1. The boundaries of the property and a site layout of the production area.
2. The location and boundaries of all manure application areas.
3. Soil and water table information from test holes as required by the Indiana Department of Environmental Management per 327 IAC 16-7-2.
4. Manure management plan as submitted to the Indiana Department of Environmental Management, including best management practices, if applicable.
5. Soil survey maps.
6. Topographical map showing sensitive areas within 1,320 feet of the production area.
7. Drainage plan that is to include the diversion of uncontaminated surface water.
8. Emergency spill response plan.
9. Driveway locations and on-site and off-site accommodations for vehicular parking and circulation patterns.
10. A farmstead plan showing all existing and proposed waste management systems and all residences, surface waters of the state, public and private roads, water well locations, karst terrain, drainage patterns, property boundary lines, outfalls of known subsurface drainage structures and drainage inlets within 1,320 feet.
11. A signed affidavit stating that the proposed operator has no outstanding violations relating to animal feeding operations.
12. A completed PAAQL survey.
13. A copy of all necessary and applicable state and/or federal approvals from the Indiana Department of Environmental Management, the U.S. Environmental Protection Agency, or other applicable agency dealing with animal feeding operations.

C Separation Requirements:  The production area of a Confined Feeding Operation and/or a Concentrated Animal Feeding Operation shall maintain, at a minimum, the following separation distances: 

The separation requirements set forth above in Items 1-5 may be reduced based on best management practices for odor management as follows: 

Best management practices may be combined, however, the cumulative reductions may not be greater than 40% of the original separation requirement and the final separation requirement may not be less than separation distances derived from the air quality modeling results from the Purdue Agricultural Air Quality Laboratory (PAAQL) Odor Setback Guidelines (http://pasture.ecn.purdue.edu/~odor/index.htm).  

D Setbacks:  The production area of a Confined Feeding Operation and/or a Concentrated Animal Feeding Operation shall maintain the following setbacks: 

1. 200’ from any road right-of-way, existing or proposed, whichever is greater; and
2. 100’ from a front, side or rear property line.

E Lot Area:  The minimum lot size on which confined feeding operations and concentrated animal feeding operations shall be permitted is 40 acres. 

F Public Road Access, Parking and Loading:  A minimum driveway width and design specifications for entrances to CFO/CAFO sites shall be set by the County Engineer to prevent damage to the public road on which the entrance is situated.  A suitable truck turn-around area shall be provided on-site.  The turn-around area shall be an all-truck turn-around so that vehicles do not have to back into the public road, through T-turns or a turning area with a radius of at least 120 feet.  The entire drive and turn-around area must have a surface to minimize dust and to avoid caking of mud on truck wheels.  If trucks will be parked or stored on the site overnight or long-term, there shall be a parking space for each such truck and the parking space(s) must not reduce or impede the turn-around area. 

G Manure Management:

All new manure storage structures for a CFO/CAFO must be designed, constructed and maintained with a combined storage capacity of at least 270 days storage for manure, and if applicable, the expected rainfall and run-off from a 25 year, 24 hour precipitation event that falls on the drainage area around a liquid manure storage structure.

H Closure Requirements

A manure storage structure is deemed closed when the environmental threat has been removed.  The owner/operator of confined feeding operations that plan to close or discontinue use of a manure storage structure must comply with all applicable state requirements in addition to the requirements set forth herein.  The following items shall be filed with the Plan Commission, the Delaware County Health Department, and the Delaware County Zoning Administrator: 

1.  Written notice of the anticipated date to cease operation shall be forwarded not less than 60 days prior to closure. 

2.   A copy of the certification that states compliance with all state requirements for the closure or discontinued use of a manure storage structure and, as applicable, a copy of any additional closure requirements imposed on the owner/operator by the state. 

3. A copy of the letter of confirmation from the Indiana Department of Environmental Management verifying that the state requirements for closure have been met.

The Commission, the Health Department or the Zoning Administrator may recommend and require additional closure activities based on surface or ground water contamination, evidence of leakage, seepage or spills, or other criteria related to protection of human health and the environment. 

• Article XI, Section 2 Classes of Zones is amended to insert the new zone title.

• Article XXXIII DEFINITIONS, Section 1 General is amended to insert a new sentence at the end as follows:  “Where definitions are based on state or federal definitions and citations may change, the term(s) continues to be defined as set forth in applicable state or federal regulations.”

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