survey of legal issues affecting livestock producers

Survey of Legal Issues Affecting Livestock Producers

LawlineFood, Beverage & Agriculture Law Event

May 6, 2015

By Cari B. Rincker, Esq.

Who I Am

• Grew up on a beef cattle farm in Illinois– Advanced degrees in

animal science

• Chair of the ABA, General Practice, Solo & Small Firm Division’s Agriculture Law Committee

• Client bases ranges from livestock producers & food entrepreneurs to mid-size agri-businesses

Overview of Livestock Law Issues

• Livestock Animal Cruelty Law

• Bull & Horse Leases

• Embryo Transfer Contracts

• Right-to-Farm law

Overview of Livestock Law Issues

• National Organic Program

• Direct Farm Marketing with Meat Production

• On-Farm Poultry Slaughter

• (Concentrated) Animal Feeding Operations

Livestock Animal Cruelty Law

Livestock Animal Cruelty Law

5 State Approaches

• Ordinary Rights

• Animal Rescue

• Limited Law Enforcement

• Law Enforcement

• Community Policing

Let’s begin with looking at some general approaches around the country….

Ordinary Rights Approach

Humane societies operate animal shelters and educate community about animal abuse

– No police power


States with this approach– Alaska, Arizona,

Arkansas, Colorado, Georgia, Idaho, Illinois, Iowa, Maine, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Carolina, North Dakota, Oklahoma, Texas, Utah, West Virginia, Wisconsin and Wyoming


• States with this approach may have a separate enforcement regime– Government entity

• Colorado Bureau of Animal Protection

– Appointment of individuals• North Carolina

• North Dakota

• Illinois

– Government animal cruelty “officers”• Texas

Animal Rescue Approach

• Humane societies representatives serve a role at the “crime scene” by seizing allegedly abused animals and providing treatment

• Limited Police Power– May also investigate

animal cruelty– Unable to obtain search

warrants

Animal Rescue Approach

States with this approach include:

– Alabama, Florida, Kansas, Minnesota, and New Hampshire

Limited Law Enforcement Approach

• Humane societies are allowed to investigate animal cruelty, seize animals, and conduct searches.

• Police power still limited– Typically, no firearms

– Cannot arrest without permission

Limited Law Enforcement

• States with this approach include

– Kentucky, Nevada, South Carolina, Tennessee, Vermont, Virginia, and Washington

Law Enforcement Approach

• Humane societies are granted all police powers including seizing animals, investigating animal abuse, executing search warrants, issuing citations, and arresting offenders– Usually have the right to

carry a firearm

Law Enforcement Approach

States with this approach include:

Hawaii, California, New Jersey, Pennsylvania,

Rhode Island,

New York

Community Policing Approach

• Designates an active police officer to serve as the humane officer who will work with the humane society

• Humane officer retains all police powers but investigates animal cruelty violations and enforces animal cruelty laws

• State using this approach:

– Indiana

New York Animal Cruelty Law

• Applicable Statute: N.Y. Agri. & Mkts Law § 350 et seq.– “Torture” or “cruelty”

including an action, omission to act, or neglect where “unjustifiable physical pain, suffering or death is caused . . .” Id.at § 350(2).

Misdemeanor Animal Cruelty• Section 353 proscribes:

– Overdriving, overloading, unjustifiable maiming, mutilation or killing any animal

– Depriving any animal of “necessary sustenance, food or drink . . .”• “Sustenance” includes

shelter and veterinary care to maintain health and comfort.

Exceptions: properly conducted scientific tests, experiments, and/or investigations approved by New York Commissioner of Health

Seizure of Farm Animals

Pursuant to Section 373, any police officer or officer of a duly incorporated society for the prevention of cruelty to animals with a valid warrant may lawfully take possession of any animal that for more than 12 successive hours has been confined or kept in unhealthy conditions without necessary sustenance, food or drink

Issuance of Warrants

Pursuant to Section 372, police officers and authorized animal societies (“peace officers”) can obtain warrants to search farms upon showing a magistrate that there is reasonable cause animal cruelty

Bull & Horse Leases

Bull Lease Provisions

• Term of the breeding season• Number of bulls leased• Payment terms• Bull owner representations

– Health– Body condition score– Fertility– Breed registration– Pedigree– Structural soundness– Libido/ sex drive – Genetic DNA Markers– EPDs– Disposition/ Docility


• Lessee Representation– Herd health

– Fertility of cows (if there is a penalty for low conception rates)

– Number of cows that the bulls will breed

• Deliver of the bull to the cows

• Risk of death, injury or illness of the bull

• Liability for injuries to people (Lessee should have the risk)


• Insurance requirements (rare) • Performance requirements

– Minimum breeding rate – If represent the bull owner,

make sure there are provisions relating to drought, weather extremes or deficient grazing conditions

• Good Management Practices– Including info on health,

veterinary care, and feeding regime, including dietary supplements

Bull Lease Provisions• Right of inspection (by bull

owner)• Option to purchase bull at the

end of the lease• Title of progeny

– Should be owned by Tenant – Beware: Sometimes the lease

will say co-owners; this creates a general partnership

• Confidentiality• Relationship (no joint venture or

partnership)

Bull from Lautner Farms

Horse Leases

• Different types of leases for mares, geldings and stallions

• Some things to consider– Shoeing– Farrier fee– Training expense– No right to sublease– Health/veterinary care– Insurance

• Mortality insurance• Major medical• Loss of use insurance

Embryo Transfer Contracts

Will be giving an entire Lawline presentation on this topic soon!

ET Contracts for Cattle Producers

• 3 Types of ET Contracts– Recipient Agreement

– Breeder Agreement

– Flush Agreement

• Client may not use these terms - this is my classification– Client may just ask for an

“ET Contract”

Photo from Rincker Simmentals

Recipient Agreement

• Applicability:

– Where a cattle producer is selling a bred embryo transfer recipient cow and/or ET calf to another cattle producer

Photo from Dixon Springs Beef Center

Example Transaction

• Farmer Rincker enters into a contract with Farmer Smith. Farmer Smith is either: – Non-certified embryologist

and therefore takes the recipient to an embryologist (e.g., Transova)

– Certified embryologist and then conducts the ET themself.

Example Transaction

• The embryologist needs embryos to transfer into the Recipient Cow.– Frozen embryos can be shipped from a cattle

operation of choice (e.g., Hudson Pines Simmental cattle operation) or a donor female is at the embryologist site where she was recently flushed (7 day embryos) (could be from Rincker’s Donor Cow).

– Fresh embryos or frozen embryos are transferred into the recipient cow.

Example Transaction

• Recipient Owner must now confirm the pregnancy– He/she takes the

recipient cow home and waits 2-3 weeks to see if she is bred (waits to see if she has an estrus cycle and is in standing heat).

Example Transaction

• Recipient Owner must now confirm the pregnancy

– Performs a pregnancy check at 45 days. If pregnant, then Farmer Smith notifies Farmer Rincker.

Example Transaction

• Recipient Owner must now confirm the pregnancy– Farmer Smith performs

another pregnancy check (either by palpation or ultrasound) at 60 days. Ultrasound necessary to determine the sex. At this point, the pregnancy is confirmed.

Example Transaction

• Farmer Smith typically pays for labor and costs associated with prognosticating; however, Farmer Smith could charge Farmer Rincker $5-10 per cow.

• During this holding pattern Farmer Rincker does not typically owe money during this time. Payment not due until pregnancy is confirmed at 60 days.

• Farmer Rincker will pay Farmer Smith $X per cow that is confirmed pregnant. Not every Recipient Cow will be pregnant.

– In this hypothetical, Farmer Smith informs Farmer Rincker that he has 5 confirmed pregnant cows.

Example Transaction• Pick-up Recipient Cow and Calf or ET Calf Only

- What kind of agreement is it?

– Option One: Farmer Rincker will pickup the 5 pregnant Recipient Cows within 70 days and pay $X for the cow who is confirmed pregnant ($1800-$2200).

• If Farmer Rincker does not pick up the cow-calf on time then late fees pay apply.

• Could be assessed a late fee plus daily boarding and maintenance fees (feed and/or pasture).

Example Transaction• Pick-up Recipient Cow and Calf or ET Calf Only

- What kind of agreement is it?

– Option Two: Alternatively, Farmer Smith will care for the pregnant Recipient Cow through weaning (paying for feed and labor).

• Weaning is typically done between 4-6 months of age (could be specified in the ET Contract).

• Typically, Farmer Rincker will only get the ET calf (no cow) and will pay upon receipt of the calf ($1100-$1500).

Example Transaction

• Farmer Rincker takes the ET (Cow and) Calf home to the Rincker Ranch– If Farmer Rincker uses an embryo that he does not

own (i.e., purchased from another producer with the use Flush Agreement), then most cattle breed associations require verification of the parentage of both the dam and sire before registration will be allowed (e.g., genetic test on hair sample).

– Farmer Rincker is the person applying for the registration - not Farmer Smith.

Example Transaction

If Farmer Rincker does not pay his fee to Farmer Smith then the ET Contract may ask for Farmer Rincker to assign the ET calf’s registration paper to Farmer Smith as security.

Recipient Agreement

What is Currently Done in the Cattle Industry

– Recipient owner will sometimes have an agreement drafted to give to the breeder

– This typically is not drafted by an attorney (although it should be)

– Breeder rarely given a chance to negotiate the terms of the Recipient Agreement

Photo from Rincker Simmentals

Recipient Agreement

• Provisions to consider:– Purchase/lease price of the

Recipient Cow, her management and her ET calf

– Payment terms

– Instructions for the receipt or shipment of frozen embryos

– Embryo transfer fees for “open cows”

– Dates, procedures and costs associated with pregnancy checks • Palpation and/or ultrasound

Photo from University of Illinois Dixon Springs Beef Center

Recipient Agreement

• Provisions to consider:

– Embryo transfer fees for “open cows”

– Dates, procedures and costs associated with pregnancy checks

• Palpation and/or ultrasound


Recipient Agreement


– Duration that the Recipient Cow will stay under the care of the owner

– Daily boarding/maintenance fees for Recipient Cow

• Feed and/or Pasture


Recipient Agreement


– Reimbursement for routine veterinary care and transportation

– Limitation of congenital birth defects

– Limitation of reasonable birthing difficulties (dystocia)


Recipient Agreement


– Security on the embryo transfer progeny if bill unpaid

• Assignment of registration papers

– Additional fees for genetic testing

– Marketing services


Picture of me taking a blood sampleduring graduate school

Other ET Agreements

• Breeder Agreement

• Flush Agreement

More info at upcoming Lawline CLE

Right-to-Farm Law

Right-to-Farm Laws

• All 50 states have enacted a right-to-farm law

• Very from State to State – http://nationalaglawcenter.org/sta

te-compilations/right-to-farm/

• Protect farmers and ranchers from nuisance lawsuits from people who move into a rural operation and file suit in attempt to state those ongoing operations

http://nationalaglawcenter.org/state-compilations/right-to-farm/

New York Law: Agriculture Districts

Article XIV, Section 4 of the NYS Constitution provides for the policy of New York to encourage the development and improvement of its agriculture lands for the production of food and other agricultural products.


• Article 25-AA of NY Agric. & Mkts Law– “Local governments, when exercising their powers

to enact and administer comprehensive plans and local laws, ordinances, rules or regulations, shall exercise these powers in such manner as may realize the policy and goals set forth in this article, and shall not unreasonably restrict or regulate farm operations within agricultural districts in contravention of the purposes of this article unless it can be shown that the public health or safety is threatened.” Section 305-a.


• “Farm operation” under section 305-a, sub. 1:– “...the land and on-farm buildings, equipment, manure

processing and handling facilities, and practices which contribute to the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise, including a ‘commercial horse boarding operation’ …, ‘timber processing’ … and ‘compost, mulch and other biomass crops’ ….

– production, management and harvesting of ‘farm woodland’

– “Such farm operation may consist of one or more parcels of owned or rented land, which parcels may be contiguous or noncontiguous to each other."

New York Right-to-Farm Law• Under section 308[1], NYSDAM

issues opinions upon request on “sound agricultural practices”

• NYSDAM may consider:– operation of farm equipment– proper use of agricultural chemicals

and other crop protection methods– direct sale to consumers of on-farm

products– agricultural tourism

• NYSDAM may consult with USDA and/or Cornell

New York Right-to-Farm Law

If the farmer is conducting a sound agricultural practice on any land in an agricultural district and subject to an agricultural assessment, then said practice is not considered a private nuisance. See NY Agric. & Mkts § 308[3].

New York: Determination of Unreasonably Restrictive Laws

• New York Department of Agriculture & Markets will determine whether the requirements:– adversely affect the farm operator’s ability to manage the

farm operation effectively and efficiently; – restrict production options which could affect the

economic viability of the farm; and– cause a lengthy delay in the construction of a farm building

or implementation of a practice; the cost of compliance for the farm operation affected

• Affect the availability of less onerous means to achieve the locality’s objective.

• Relevant standards established under State law and regulations.

New York Right-to-Farm at the Local Level

• NYSDAM encourages localities to provide for a Right to Farm exemption in its local land use law

– Local laws oftentimes provide that no “sound agricultural practice” as defined in Article 25-AA shall be deemed prohibited under the ordinance or subject to its permit requirements.

National Organic Program

Overview of the National Organic Program

• Congress enacted the Organic Foods Production Act (“OFPA”) in 1990– to create “national standards governing the

marketing of certain agricultural products as organically produced products,”

– assure consumers that “organically produced products meet a consistent standard,” and

– facilitate “interstate commerce in fresh and processed food that is organically produced.”

• OFPA directed the U.S. Department of Agriculture (“USDA”) to establish national standards for organic production and handling

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Overview of NOP

• On December 21, 2000, UDSA published the final rule that created the organic standards– Directed that it be administered by

the USDA Agriculture Marketing Service (“AMS”)

• As of October 21, 2002, for a producer or handler to sell, label or represent that an agricultural product is “organic” then he/she/it must comply with NOP standards– Limited exceptions

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NOP Definitions

• Livestock. Any cattle, sheep, goats, swine, poultry, or equine animals used for food or in the production of food, fiber, feed, or other agricultural-based consumer products; wild or domesticated game; or other nonplant life, except such term shall not include aquatic animals for the production of food, fiber, feed, or other agricultural-based consumer products.

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NOP Applicability

• Exceptions to NOP certification requirements– 1. Production or handling operation

that has a gross income from sales totaling $5K or less• Primary direct-to-consumer and indirect

markets• Still must comply with applicable organic

production and handling requirements – Doesn’t have to submit an organic system

plan

• Must also comply with labeling requirements for exempted operations

• Cannot be used as ingredients in processed products identified as “organic”

7 CFR 205.100(a)

NOP Applicability

• Exceptions to NOP certification requirements– 2. Handling operation that only

handles agricultural products containing less than 70% organic ingredients by total weight• Must comply with the standards for

avoiding the commingling and contact of organic products with prohibited substances

• Labeling standards for excluded operations and multi-ingredient packaged products with less than 70% organic

• Record-keeping requirements for exempted operations

7 CFR 205.101(a)(3)

NOP Applicability

• Exceptions to NOP certification requirements– 3. Handling operation that

identifies ingredients as “organic” on the information panel only• Must comply with the standards for

avoiding the commingling and contact of organic products with prohibited substances

• Labeling standards for excluded operations and multi-ingredient packaged products with less than 70% organic

• Record-keeping requirements for exempted operations

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7 CFR 205.101(a)(4)(i)-(iii)

Note the organic ingredients

NOP Applicability

• 2 main exclusions from NOP certification

– 1. handling operations that sell only “organic” products that are packaged or otherwise enclosed in a container before the operation receives or acquires the product and it remains in the same package

– 2. retail food establishments that process on the premises “raw and ready-to-eat food from products that were previously labeled as organic”.

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There are different recordkeeping requirements depending on classification

Certified Operations

Exempted Operations

Excluded Operations

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Allowed and Prohibited Substances, Methods and Ingredients

• For a certified operation to sell, label, or represent a product as “organic,” it must produce or handle the product without the use of synthetic substances and ingredients, unless the substances or ingredients are specifically listed as allowed on the national list of approved substances (“National List”).– A “synthetic” is “[a] substance that is formulated or manufactured by a

chemical process or by a process that chemically changes a substance extracted from naturally occurring plant, animal, or mineral sources, except that such term shall not apply to substances created by naturally occurring biological processes.”

7 CFR 205.105 and 7 USC 6502(21)


• Certified operations must also produce and handle products without the use of prohibited nonsyntheticor nonagricultural substances unless on the National List

• There are certain vaccines, for example, that can be used for limited purposes that are on the National List

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7 CFR 205.105 and 205.2

This is my brother showing at NAILE


• Cannot use an “excluded method”

– Methods used to genetically modified organisms

– Influence their growth and development by means that are not possible under natural conditions

• Cell fusion, micro/macro-encapsulation and DNA technology (e.g., gene deletion, gene doubling, introducing foreign genes)

– Excluded methods do not include the use of traditional breeding, conjugation, fermentation, hybridization, in vitro fertilization, or tissue culture

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Livestock Production

• Livestock products intended to be sold, labeled or represented as “organic” must be produced from livestock raised in organic management conditions from the last third of gestation or hatching– 3 exceptions

• Poultry – from second day of life

• Milk – dairy animals with 1 year of organic handling

• Breeder livestock – at the time of birth

687 CFR 205.236

Livestock Feed

• Must be given a feed ration that is composed of organic agricultural products– Includes grains, hay, silage,

pasture and fodder– Note that organic does not

necessarily mean grass fed

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7 CFR 205.2

Livestock Health and Well-Being

• Required to establish and maintain preventative livestock health care practices– Must administer vaccines and other

veterinary biologics when needed

• Must allow “for exercise, freedom of movement, and reduction of stress” appropriate for the livestock species– Must accommodate the animal’s

natural behavior

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Temporary Variances• Under certain circumstances, producers and handlers can obtain

temporary variances from the – soil fertility and crop nutrient management standard; – seed and planting stock standard; – crop rotation standard; – crop, pest, weed, and disease management standard; – origin of livestock standard; – livestock feed standard; – livestock health care practice standard; – livestock living conditions standard; – organic handling requirements; – facility pest management standard; and the – commingling and contact with prohibited substance prevention

standard.

• The Secretary may issue a temporary variance due to natural disasters, “[d]amage caused by drought, wind, flood, excessive moisture, hail, tornado, earthquake, fire, or other business interruption[,]”…

717 CFR 205.290(a)(1)-(3)

NOP: Labels, Labeling, and Market Information

• 4 Labeling Categories– 100% Organic– “Organic”– “made with organic

_______”– Products with less than

70% organically produced ingredients

• Percentage is determined by weight in solid form

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Direct Marketing of Meat Products

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Federal Meat Inspection Act

Are the animals amenable?

• Amenable

• Amenable Livestock - Cattle, sheep, goats

• Amenable poultry - chickens, turkey, ducks, geese, guineas, ratites (ostrich, emus, and rhea), squabs

• Nonamenable - not subject to the Federal Meat Inspection Act

• Game animals and birds

• Even if a farmer raises a domesticated species, it is still considered non-amenable

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Federal Meat Inspection Act

• Requires imported meat products to have inspection requirements equivalent to the U.S. requirements– Must remain in the

original packing the the country of origin and foreign establishment number of the label

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Custom Exempt Slaughterhouses

• May offer slaughtering services without federal inspection and oversight– Should not be confused

with stateslaughterhouses that are inspected by state officials

• For the owner themselves or their household– Must be stamped “Not for

Sale”

• Custom-exempt plants are inspected periodically

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My family would harvest our 4-H projects and steers on the farm –example of custom slaughter

Nonamenable Slaughtering and Processing Facilities

There are specialized state facilities that conduct butchering and processing for nonamenable animals

– In New York, must obtain an Article 5-A license

– Higher standards than conventional custom-exempt plants• Example: hot water at 180°

F vs. 170° F

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Selling Meat Direct to the Consumer

• In New York, all red meat from amenable species must be slaughtered at a USDA inspected facility – Some states allow for

state-inspected slaughter facilities if sold intrastate

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On-Farm Poultry Slaughter Regulations

Producer/Grower 1000 Bird Limit Exemption

A New York poultry producer who processes and sells less than 1000 chickens or 250 turkeys (i.e., 1 turkey = 4 chickens) may be subject to the 1000 Bird Limit Exemption under the Poultry Product Inspection Act (“PPIA”)

5 Criteria under PPIA– The poultry producer slaughters no more

than 1,000 healthy birds of his/her own farm in a calendar year for distribution as human food;

– The poultry producer does not engage in buying or selling poultry products other than those produced from poultry raised on his/her farm;

– The slaughter and processing are conducted under sanitary standards, practices, and procedures that produce poultry products that are sound, clean, not adulterated or misbranded, and fit for human food;

– The poultry producer keeps the required records; and,

– The poultry product does not move in interstate commerce (i.e., exchange or transportation of the poultry product stays within the state of New York).


Although sales and transportation of poultry products under this exemption are only required to stay intrastate, NYSDAM’s 2009 guidelines suggest that farms operating under the 1000 bird exemption should maintain control of its product through the sale directly to the consumer by limiting sales to on-farm outlets, roadside stands, or farmers’ markets



• Food Packaging

– Packaging materials must be safe for its intended use pursuant to the Food Drug & Cosmetic Act (“FDCA”)

– Labels must be approved by the FDA

• Food Labeling– New York has adopted the USDA FSIS Mandatory

Labeling Requirements (requirements for the principal display):• Product name and description; • Inspection Legend and Establishment Number (for farms

processing under this exemption, it should say “Exempted –P.L. 90-492);

• Net weight statement (includes “packed on” date, “sell by” date , “net wt lb.”, “price per lb”, and net weight);

• Name and address of the farm; and,• Safe handling statement (if processed under on-farm

exemption, then label must say “Exempt P.L. 90-492”).



• Processing Guidelines– Water used in processing, cleaning and sanitation, in

chilling tanks and ice manufacture should be potable and must be tested annual to determine potability;

– Any approved sanitizing agents for use on food contact surfaces must be used in prescribed concentrations and methods;

– Any agents (including lubricants) used on equipment maintenance must be food grade;

– The on-farm processing facility must be managed in a manner that protects the environment (e.g., surface and groundwater, and soils).

Good Manufacturing Practices (“GMP’s”)

• Provide Training for Processing Personnel

• Establish Health & Hygiene Policies • Maintain a Clean Processing

Environment• Control Pests• Control Access to the Processing

Facility• Provide Potable Water• Securely Store Processing

Equipment, Utensils, Supplies & Materials

• Manage Processing Wastes

(Sanitation) Standard Operating Procedures (“SOP’s” “SSOP’s”)

• Site Management & Pest Control

• Personnel Health & Hygiene

• Pre-Operational Inspection & Sanitation Schedule

• Daily Operational Sanitation Maintenance

• Chill Tank, Giblet Chill Containers & Refrigeration Temperature Monitoring

• Post-Operational Sanitation Schedule

Hazard Analysis Critical Control Point (“HACCP”) Plan

Even though a HACCP Plan is not required for birds slaughtered and processed under the Producer/Grower 1000 Bird Limit Exemption it is highly recommended

• 7 Steps of HACCP– Access food safety hazards associated with all areas of your product– Determine Critical Control Points (“CCPs”)– Establish the Critical Limits for each CCP– Establish Monitoring Procedures for CCPs– Establish Corrective Actions to be taken when CCPs are not in control– Establish Record-Keeping Procedures– Establish Verification Procedures to determine that the system is

working

New York Law: Article 5-A Licenses• Poultry sold intrastate not

subject to the Producer/Grower 1000 Bird Limit Exemption

• Exclusions include the following:– Bona fide farmer who harvests

birds for household use– Custom slaughter – Under 1000 bird-equivalent– Person or not-for-profit who

donates wild game

• Prohibited from cities with a population over 1 million & within 1500 feet of a residential dwelling

(Concentrated) Animal Feeding Operations

• NOT Confined Animal Feeding Operations

• NOT “Factory Farms”

NY Law: AFOs vs. CAFOs

• An Animal Feeding Operation (“AFO”) is a lot or facility that does not sustain crops or vegetation where animals have, are, or will be stabled, confined, fed, or maintained for at least 45 days in any 12-month period.

– A Concentrated Animal Feeding Operation (“CAFO”) is an AFO with a prescribed number of animals.

– The number of animals stabled or confined in an AFO dictates whether the operation is categorized as a Large, Medium or Small CAFO.

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New York Law: Large CAFOs

700 mature dairy cows, whether milked or dry;

1,000 veal calves;

1,000 cattle other than mature dairy cows or veal

calves (cattle includes but is not limited to heifers, steers,

bulls and cow/calf pairs);

2,500 swine each weighing 55 pounds or more;

10,000 swine each weighing less than 55 pounds;

500 horses; 10,000 sheep or lambs; 55,000 turkeys;

30,000 laying hens or broilers, if the AFO uses a

liquid manure handling system;

125,000 chickens (other than laying hens), if the AFO uses other than a liquid manure

handling system;

82,000 laying hens, if the AFO uses other than a liquid

manure handling system;

30,000 ducks (if the AFO uses other than a liquid

manure handling system); or

5,000 ducks (if the AFO uses a liquid manure handling

system).

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New York Law: Medium CAFOs

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200 to 699 mature dairy cows, whether milked or

dry;300 to 999 veal calves;

300 to 999 cattle other than mature dairy cows

or veal calves;

750 to 2,499 swine each weighing 55 pounds or

more;

3,000 to 9,999 swine each weighing less than 55

pounds;150 to 499 horses;

3,000 to 9,999 sheep or lambs;

16,500 to 54,999 turkeys;

9,000 to 29,999 laying hens or broilers, if the

AFO uses a liquid manure handling system;

37,500 to 124,999 chickens (other than

laying hens), if the AFO uses other than a liquid

manure handling system;

25,000 to 81,999 laying hens, if the AFO uses

other than a liquid manure handling system;

10,000 to 29,999 ducks (if the AFO uses other than a

liquid manure handling system); or

1,500 to 4,999 ducks (if the AFO uses a liquid

manure handling system).

New York Law: Small CAFOs

A small CAFO contains fewer than the prescribed number of animals required for classification as a Medium or Large CAFO, but is either designated by New York Department of Environmental Conservation as a CAFO or has requested a CAFO SPDES permit.

See NYCRR Tit. 6 § 750-1.2(21).

Water: Point vs. Nonpoint Pollution

• Under the Clean Water Act, sources of water pollution are generally classified as being either point or nonpoint. – Point source water pollution is discharged from a

discernable and identifiable source such as a pipe, ditch, well, or concentrated animal feeding operation (“CAFO”).

– Nonpoint source pollution is caused by nonspecific, more diffuse sources, such as when land runoff, rainfall and seepage spread agricultural chemicals and waste, salt from irrigation systems, or sediment to surrounding groundwater and waterways.

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National Pollutant Discharge Elimination System

• The EPA regulates point source pollution through the National Pollutant Discharge Elimination System (“NPDES”). – A NPDES permit is required to lawfully discharge any pollutant into

navigable waters.

• In New York, the EPA has delegated the responsibility of issuing permits for point source discharge into state waters to the NYDEC, which issues a State Pollutant Discharge Elimination System(“SPDES”) permit in lieu of a NPDES. See N.Y. Envl. Conserv. Law §17-0101 et seq. – Depending on the activity and the water body involved, additional

permits may be required.

• As previously mentioned, CAFOs are treated as point sources, and resultant water pollution requires permitting. – For example, a farmer operating a CAFO that discharges water from a

feedlot’s lagoon into a stream must obtain the appropriate SPDES permit.

Oh, P.S. – I Just Wrote a Book

Cari B. Rincker & Patrick B. Dillon, “Field Manual: Legal Guide for New York Farmers & Food Entrepreneurs” (2013)

Available at http://www.amazon.com/Field-Manual-Legal-Farmers-Entrepreneurs/dp/1484965191

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