About that controversial Oregon dairy viral video

By Samantha Bayer
Oregon Property Owners Association

Over the past few weeks, we have received a number of emails from supporters with a link to this viral YouTube video regarding regulations impacting Oregon’s small dairy farmers. While this issue isn’t necessarily a land use issue, we wanted to help explain what is actually going on with Oregon’s controversial “CAFO” regulations.

Oregon regulates confined animal feeding operations.

As we’ve documented many times on the blog, being a family farmer in Oregon is no easy feat. Whether your operation is big or small, farming in Oregon means navigating a complex web of regulatory requirements from multiple state agencies. For a small family business, it’s hard enough earning a living in this economy, let alone staying in compliance with the barrage of regulations that are constantly changing.

If you raise and sell livestock (or any other animal product) you’re even more likely to be under the thumb of bureaucrats – especially if you run a Confined Animal Feeding Operation, also known as a “CAFO”. Oregon’s regulatory requirements for CAFOs are intense, and it is one of the few “farm uses” in Oregon farm zones that require extensive permitting and a Land Use Compatibility Statement to be legal.

The reason for the heightened scrutiny around CAFOs has to do with state and federal water quality laws. In general, a CAFO permit is intended to protect surface and ground water by limiting the amount of manure, wastewater, and nutrients that can be applied to fields as fertilizer.

In short, operations that qualify as a “CAFO” under Oregon Department of Agriculture rules must apply for a permit that dictates not only the construction of the “facility”, but how manure, wastewater, and nutrients can be applied to land as fertilizer, etc.

ODA targets small farms with new policy.

When the general public thinks of a CAFO they think about a large “mega-dairy” or chicken farm with thousands of animals in confined spaces, and large amounts of animal waste to deal with. Unfortunately, ODA’s definition of “CAFO” reaches farm operations that are much smaller than what a reasonable person would consider a true CAFO.

As background, last year ODA became concerned that some raw milk producers were not registering as CAFOs, which the agency said created environmental concerns and allegedly caused other dairies to complain about “unfair competition”. In response, ODA released a number of “white papers” that essentially established a legal policy making clear that the definition of a CAFO includes even the smallest dairy farms.

Under OAR 603-074-0010(3), ODA defines a CAFO in part as:

(a) The concentrated confined feeding or holding of animals or poultry, including but not limited to horse, cattle, sheep, or swine feeding areas, dairy confinement areas, slaughterhouse or shipping terminal holding pens, poultry and egg production facilities and fur farms;

(A) In buildings or in pens or lots where the surface has been prepared with concrete, rock or fibrous material to support animals in wet weather; or

(B) That have wastewater treatment works; or

(C) That discharge any wastes into waters of the state.

On its face, this definition is extremely broad. One could interpret this definition to read that you are a CAFO if you milk a single goat for 20 minutes in a stall on a concrete slab in your horse barn. That’s a far cry from a “mega-dairy” milking thousands of head of cattle for international sale.

In its white paper, Raw Milk Dairies and CAFO Permit Requirements January 2023, ODA all but confirmed this interpretation by highlighting the issue of “containment” during the milking process:

As far as is known, raw milk dairies will generally be considered small CAFOs, defined as having fewer than 200 mature dairy cows and fewer than 3,000 milking goats or sheep (OAR 603-074-0010). The confinement of animals is highly variable among operations, but all animals are technically confined during the milking process, whether in pens, lots, or buildings.

In short, according to ODA, if you’re milking an animal in a building or pen that has really anything but grass underneath, you’re operating a CAFO and are subject to the same regulatory requirements as a farm with hundreds or thousands of animals.

Raw milk producers push back with lawsuit. 

As you can imagine, this policy from ODA sparked a firestorm of concern from small dairy farmers, most of whom produce raw milk. As well it should, as this interpretation is nuts.

In response, a group of small raw milk producers filed a federal lawsuit against ODA for this new interpretation. According to the lawsuit, obtaining and complying with the CAFO regulations will be extremely burdensome for these very small micro-operations.

As an example, Plaintiff Sarah King of Godspeed Hollow Farm only has three dairy cows. She runs a unique raw milk dairy operation, where local patrons can buy “shares” of her cows to receive fresh raw milk on a regular basis.

King’s operation is simple and similar to most small dairies. King leads her cows from pasture into the barn or “milking parlor” to a milking stanchion where the cows are milked. The floor of the stanchion is rubber mats on top of gravel. When the cows are done being milked, they are let back out to pasture. The entire process takes about 15-20 minutes from start to finish.

Under ODA’s policy, Godspeed Hallow Farm is a CAFO. According to King, she will now have to “comply with expensive and elaborate infrastructure requirements that are an affront to her farming philosophy and disregard its sustainability practices” and potentially incur up to $100,000 in costs. She will have to track her cow’s manure output, and comply with the same regulatory requirements as a farm with a hundred head of cattle.

ODA temporarily pulls back enforcement.

ODA’s new policy was supposed to come into effect on April 1, 2024. However, after the lawsuit was filed, ODA apparently decided it was rescinding the new CAFO policy and publicly stated it would not be enforcing the policy.

Regardless of ODA’s change of heart, the administrative definition of CAFO still remains. This means that it is unclear what size or type of operation needs a CAFO permit, and which ones don’t. Moreover, the lawsuit filed by King and the other raw milk producers is still moving forward.  Although the Oregon legislature could step in and fix this mess, there’s no indication they will do so.  As of now, Oregon’s small animal producers have to operate in regulatory limbo.

OPOA will be keeping track of this issue as it progresses, and will continue to advocate for the rights of farmers of all sizes to use their land in the ways that work best for them.

The opinions expressed in this post are those of the author and do not represent the opinions or positions of any party represented by the OPOA Legal Center on any particular matter.