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Hawai'i CFS

State Takes Back Mega-Chicken CAFO Permit: Victory for Neighbors and River!

By Amy van Saun, Senior Attorney

April 25, 2024
Center for Food Safety

The Willamette Valley of Oregon is home to rich and dense farming communities, growing food crops, nursery plants, and meat and dairy animals, including organic dairy on small and medium family farms. It is also veined with streams and rivers that feed the Willamette River, which are popular for local and tourist recreation and are home to myriad wildlife, including threatened and endangered salmon. This same valley was also recently the target of Foster Farms for expansion of its integrated meat chicken empire. Several plots of land were purchased by individuals to build massive chicken factories, raising 3.5-4.5 million chickens per year each. One was upwind of a school, another butting up against the property of a local farmer, and a third was located just one-quarter mile from the North Santiam River.

After local outcry and the formation of the Farmers Against Factory Farms, Center for Food Safety and the Stand Up to Factory Farms (SUFF) coalition expanded their mega-dairy moratorium campaign to include all factory farms. The SUFF coalition was co-founded by CFS and is managed by CFS senior attorney in Oregon, Amy van Saun. For years, SUFF has been building power to put a pause on further mega-sized factory farms moving into Oregon or consolidating from what used to be hundreds of individual dairies. Now, SUFF turned its sights to protecting all of Oregon, including the Willamette Valley, from this influx of Foster Farms chicken operations.

In 2023, SUFF and Farmers Against Foster Farms successfully passed a bill—SB 85—to rein in this industry with stricter water quality permitting, a cap on the previously unlimited stockwater loophole (which allowed "farms" of any size to take unlimited water for their livestock without a water right or permit), and authority granted to counties to require setbacks from residences for new large CAFOs. It also established for the first time in Oregon a permitting system to protect water quality when third parties spread exported CAFO manure in already-contaminated areas, designated as Groundwater Management Areas (GWMAs). With the new rules looming, two of the potential Foster Farms operations backed down and are selling off their land. One—J-S Ranch—was already permitted and would not be subject to the new rules.

Again, CFS jumped in to help, representing neighbors of the proposed factory farm, as well as Farmers Against Foster Farms, Friends of Family Farmers, and Willamette Riverkeeper in a legal action to prevent J-S Ranch from opening. Despite the community outcry in the form of comments and testimony at a public hearing, Oregon's Department of Agriculture (ODA) and Department of Environmental Quality (DEQ) still gave J-S Ranch a permit to raise 3.5 million birds close to the North Santiam River, generating 4,500 tons of manure a year. CFS, along with the Sugarman Dahab law firm, brought ODA and DEQ to court, filing a petition to contest the permit in the Linn County Circuit Court in fall 2022.

As Petitioners argued, this operation would surely cause surface water pollution to the North Santiam River and other surface waters via contaminated stormwater running off the massive new infrastructure on what is now crop farmland, and via aerial deposition: ammonia and dust generated in the chicken barns spewed out of industrial fans and falling into the nearby River. But ODA only issued a state-law only permit meant to address just groundwater discharges, under the false assumption that these types of chicken operations are "dry" and would not impact surface water like the North Santiam. Before anyone discharges pollutants to navigable waters like the North Santiam, they must have an NPDES permit under the federal Clean Water Act and Oregon's own surface water quality laws. As neighbors and others told ODA over and again, this is an extremely wet area and not a suitable spot for a chicken factory farm. If ODA/DEQ were going to issue any permit, they had to account for the surface water pollution that would come. Moreover, the petitioners alleged that even the permit issued was not sufficient to protect groundwater, given that the floors of the chicken barns would not be concrete or another impermeable surface, merely compacted earth. In such a wet area, where the groundwater comes up to the surface during the wet winter months, the state simply could not say that groundwater would be protected from nitrogen and phosphorous pollution, among other elements of chicken waste (pathogens, animal drugs, etc).

In 2023 and 2024, the state attempted to kick these surface water claims out, filing two motions for summary judgment. They argued that the state does not have to address aerial emissions, because this type of water pollution is not covered under either the federal Clean Water Act or Oregon's broader laws protecting water quality. They also attempted to ignore the contaminated stormwater that would run off impermeable roof tops and the CAFO grounds, calling this exempt "agricultural stormwater discharge"—a term used for non-CAFO agriculture and only applied by the federal Environmental Protection Agency in a limited (and improper) way to runoff from land-applied animal waste. After two hearings, the Linn County Circuit Court denied the state's motions, allowing all issues to go to trial.

Rather than proceed to trial, on Friday, April 19, 2024, the state filed a notice in the lawsuit, withdrawing the permit for reconsideration. They gave themselves until October 31, 2024, to make a new decision, during which time the permit is paused, so no new construction may begin. The neighbors and community can sigh a breath of relief this summer, knowing that for now, their farms, homes, groundwater, and River are protected. And CFS remains vigilant: unless the state does the right thing and denies this permit, we will be back to court.

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