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August 9, 2003

Communities can pass laws to protect water supplies
By Butch Mabin, Lincoln Journal Star

Nebraska communities can pass their own laws to protect local water supplies against large livestock operations, the state Supreme Court ruled Friday.

The court ruled in City of Alma v. Furnas County Farms that anti-pollution ordinances, passed by the town after Furnas announced plans to build a large hog operation nearby, were not pre-empted by the state's environmental protection law.

"It's great," Lash Chaffin, utilities section director for the League of Nebraska Municipalities, said of the ruling. "What it says is that communities can protect their water supplies out to 15 miles."

Mike Fitzgerald, a spokesman for Nebraska Cattlemen, said the ruling will require livestock operators to meet varying sets of environmental regulations.

"We're disappointed by the verdict," he said. "We think local control should be limited to matters of nuisance.

"Cities should be able to protect their resources," he continued, but "producers already have to meet state and federal guidelines."

Furnas in 1997 announced plans to build a 36,000-capacity hog farm about eight miles outside Alma, which is in south-central Nebraska.

In response, the city hired an environmental engineer to assess the proposed farm's possible impact on the water supply. Based on the engineer's findings, Alma enacted several ordinances that, among other things, established construction standards and required city permits for large livestock operations within 15 miles of the town.

The ordinances exempted operations with not more than 2,500 animals.

Furnas, in legal proceedings in Harlan County District Court and in the state Supreme Court, argued the ordinances were in conflict with the Nebraska Environmental Protection Act, which, the business argued, reserved pollution control for the state.

Chief Justice John V. Hendry, writing for the court Friday, disagreed.

"(I)t is clear that the Legislature contemplated that municipalities would continue to enact ordinances on the subject of pollution control after the enactment of the NEPA," he wrote. Furnas' "contention that the NEPA pre(-)empts the field of pollution control is without merit."

Hendry said the court could not consider whether the ordinances were at odds with the state Livestock Waste Management Act because that issue was not properly raised on appeal.

Lincoln attorney David Jarecke, who represented Furnas, said any possible conflict between local pollution ordinances and the Waste Act could be decided in a future case.

"You need the right case and the right set of facts," he said in an interview Friday.

He called the ruling Friday disappointing.

"I think we know as little today as we did yesterday in terms of that act," he said.

Furnas, a division of Sand Livestock Systems, had proposed to construct adjacent to the farm waste lagoons capable of holding up to 145 million gallons of liquidized hog manure.

Under the ordinances, the company would have been required to do soil analysis at the site and to line the lagoons with a synthetic, impermeable material that Sands later argued would cost an additional $500,000, making the project too expensive.

The ordinances were in addition to the state Department of Environmental Quality's standards.

Sands eventually built a facility with a capacity of under 2,500 animals.

Large livestock farms in Nebraska have been the subject of a number of lawsuits. Unlike the Alma case, most have been centered on "nuisance" and "quality-of-life" issues stemming from the odors generated by the operations.

"This was not a nuisance issue," former Alma City Attorney Doug Walker said in an interview Friday. Walker was city attorney from 1987 to early this year.

"Our expert said it would be a threat to our drinking water."

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