For the purpose of this chapter, the following terms and phrases shall have the meaning ascribed to them in this section:

ADMINISTRATOR: Refer to section 10-1-5, Definitions.

AFFECTED PERSON: Refer to section 10-1-5, Definitions.

APPLICANT: Refer to section 10-1-5, Definitions.

BEST MANAGEMENT PRACTICES (BMPs): Refer to section 10-1-5, Definitions.

BOARD: Refer to section 10-1-5, Definitions.

CAFO: Refer to section 10-1-5, Definitions.

CAFO FACILITY: Refer to section 10-1-5, Definitions.

CAFO FOOTPRINT: Refer to section 10-1-5, Definitions.

CAFO SITE ADVISORY TEAM: Refer to section 10-1-5, Definitions.

COMMISSION: Refer to section 10-1-5, Definitions.

COMPOSTING: Refer to section 10-1-5, Definitions.

CONFINED ANIMAL FEEDING OPERATIONS "CAFO" ANIMAL UNIT: Refer to section 10-1-5, Definitions.

CONFORMING USE: Any use existing at the effective date hereof or any amendment thereto, which meets the criteria of this chapter.

CORRAL: An enclosed area in which animals are housed and fed without the presence of crops, forage growth, and other vegetation, which are not sustained in the normal growing season.

EXISTING CAFO: A CAFO built and in operation prior to the effective date of County regulations or this chapter.

MCL: Maximum contaminant level in the Idaho Department of Health and Welfare's water quality standards and wastewater treatment requirements.

MEMORANDUM OF UNDERSTANDING: Memorandum of understanding between Power County and the CAFO site advisory team relative to CAFO sitings is an agreement wherein Power County will provide the team with certain information set forth in the application in section 10-21-7 of this chapter. Once the CAFO facility application is complete and submitted to the team, the team (or their designees) shall conduct an on site evaluation. Unless specifically waived in writing, the applicant and/or owners and County officials (or their designees) shall always be present during evaluations of team. If the designated County official is unable to participate, then an alternate County official shall be appointed. The completed CAFO applications shall be reviewed and a suitability determination submitted to the County's Planning and Zoning Commission by the team coordinator within thirty (30) days of the team's receipt of the application, together with the supporting data for their findings. The suitability determination shall:

   A.   Identify which of the following environmental risk categories a proposed CAFO site falls into:

      1.   High risk,

      2.   Moderate risk,

      3.   Low risk, or

      4.   Insufficient information to make a determination.

   B.   Describe which technical factors contribute to high, moderate and low, or insufficient risk categories. Along with designation of a risk category, the suitability determination shall indicate whether or not mitigation of risk is possible based on available technology, best management practices (BMPs), etc. The team members or their designees shall sign the suitability determination.

NMP: Nutrient management plan which is approved by the respective State or Federal agency that has jurisdiction or regulatory authority over the CAFO.

NPDES PERMIT: National pollutant discharge elimination system permit that is issued by the respective State or Federal agency that has jurisdiction or regulatory authority over the CAFO.

NONCONFORMING USE: A lawful use of land or a building that does not conform to the regulations of the district or zone but existed prior to the enactment of this chapter or any amendment thereto.

ODOR ABATEMENT PLAN: Idaho Code section 25-3803(4), Best Management Practices and Idaho Code section 25-3804, design and construction.

SETBACK AREA: The space on a lot required to be left open and unoccupied by buildings or structures by the front, side or rear yard requirements of this chapter or by delineation on a recorded subdivision plat as defined under section 10-21-8 of this chapter.

WASTE: The presence of:

   A.   Liquid Waste: Wastewater and other waste material in liquid form, which is generated as a byproduct of a CAFO.

   B.   Solid Waste: Waste material in solid form, which is generated as a byproduct of a CAFO.

WASTE MANAGEMENT SYSTEM: The process area or mechanism employed for the retention, storage, or treatment of waste.

WASTE STORAGE: Area where liquid and/or solid manure is stored, excluding corrals. (Ord. 2015-3, 3-9-2015; amd. Ord. 2019-02, 1-14-2019; amd. Ord. 2020-02, 2-24-2020)

This does not relieve any nonregistered CAFOs of any obligations or penalties for noncompliance therewith.

   A.   All CAFOs operating in the County shall be registered or hold a special use permit within one hundred twenty (120) days of the date of this chapter. The registration details to be provided to the Building Administrator of the County, as required by this section shall include information sufficient to determine the size and scope of the existing CAFO. This information shall be provided to the Building Administrator in the form required by the building administrator, and should include, at a minimum, the following:

      1.   Name, address and telephone number of the applicant, and the CAFO facility location.

      2.   The legal description of the CAFO facility and real property, and an identification of the legal owners, persons or entities who have an interest in the business and real property, identifying their interest therein.

      3.   A vicinity map of a radius of one mile from the CAFO, at a scale of one inch equals six hundred sixty feet (1" = 660') showing the following:

         a.   Land use.

         b.   Surface watercourses.

         c.   Wells.

         d.   An outline of the area where the CAFO facility is located.

         e.   Property lines.

      4.   A letter of compliance from ISDA or the applicable state or federal agency, that the CAFO has an approved nutrient management plan.

      5.   A site plan for the CAFO facility which will include the exact location of the waste management system including location where the wastewater and the solid waste will be stored and/or applied, showing the exact location of waste storage lagoons and other components of the waste management and waste disposal systems, the location of corrals, buildings, ditches, berms, runoff containment, pipelines and separators.

      6.   A statement of the number of animal units, or the animal unit capacity for which the facility is permitted.

   B.   Any existing CAFO that intends to expand the animal unit capacity which requires a reapplication of the NPDES permit or NMP must meet all provisions of this chapter and apply with the administrator. Any existing CAFO that intends to increase animal units or to change setbacks must meet all provisions of this chapter and apply with the administrator.

   C.   The owner and/or operator of the CAFO shall notify the county within one year of ceasing or suspending operations of the CAFO. Failure to do so will render the CAFO in violation and subject to enforcement action. If the CAFO is suspended or vacant for a period of one year, the county may request that the owner declare his intentions with respect to the continued nonuse of the CAFO, in writing, within twenty eight (28) days of the request. If the owner and/or operator of the CAFO elects to continue the nonuse, he shall be required to follow the process outlined in Idaho Code section 67-6538. A CAFO shall lose its special use permit and grandfather rights if the operation is vacant for ten (10) years or sooner if the owner fails to comply with the provisions of Idaho Code section 67-6538. A nonconforming CAFO located in an area where CAFOs are not permitted shall lose its special use permit and grandfather rights if its operation ceases for longer than one year, without complying with the above requirements. Nonconforming CAFOs shall not increase in animal unit capacity without first conforming to the requirements of this chapter in obtaining a new special use permit. A CAFO shall lose its special use permit and grandfather rights if the Idaho department of agriculture or other appropriate agency cancels the operating permit for the CAFO and that operating permit is not renewed or restored within one year of the date of cancellation.

   D.   Registered, conforming and nonconforming CAFOs shall be transferable, provided, the new owner files a transfer statement form with the administrator within sixty (60) days after the date of the purchase of the CAFO facility. The new owner must sign a transfer statement form, stating that the CAFO is in compliance with the Power County zoning ordinance and that the nutrient management plan is in place, and provide the information in subsection A of this section. The transfer statement form shall include the date of the transfer and the name and mailing addresses of both the transferor(s) and transferee(s).

   E.   CAFOs that exist at the time this chapter passes, who comply with the registration requirements of this chapter and hold a special use permit prior to the date of the adoption hereof are grandfathered into their existing site plan, footprint and nutrient management plan for compliance with the requirements of this chapter. (Ord. 2010-07, 10-12-2010)

   A.   New CAFOs will only be allowed in agricultural zoning districts with the exception of aquaculture CAFOs will be allowed in all zones, except residential zones.

   B.   New CAFOs will not be permitted within three (3) miles of the area of city impact for the city of American Falls or the city of Rockland. (Ord. 2010-07, 10-12-2010)

   A.   A special use permit is required prior to commencing of construction or improvements:

      1.   To operate a new CAFO.

      2.   To expand the animal unit capacity of a sited registered CAFO which requires a reapplication of the NPDES permit or NMP.

      3.   Construction on the waste treatment system to change location.

      4.   A substantial or material change to the site plan provided in subsection 10-21-2A of this chapter.

   B.   Unless a longer time shall be specifically established as a condition of approval, a CAFO special use permit shall lapse and become void two (2) years following the date on which such permit becomes effective, unless prior to expiration:

      1.   A building permit is issued and construction is commenced and pursued toward completion; or

      2.   A certificate of occupancy is issued for the use. A CAFO special use permit, which is due to lapse, may be renewed by the commission for a one time extension of an additional period of one year provided an application is made prior to the expiration date. If the CAFO operator is working toward obtaining other permits, i.e., water, an additional extension may be allowed or reviewed on an individual basis by the board. A written request for an extension is filed with the administrator. (Ord. 2010-07, 10-12-2010)

Any changes to an existing special use permit within the footprint to the CAFO facility that requires a change to the NMP must be submitted before the planning and zoning administrator for approval. The request must clearly specify the change(s) and provide an explanation or justification for the change(s). If the change in the NMP is a result of relocation of waste treatment system, or increase in capacity, notice of the change shall be given to affected persons and a hearing will be scheduled. (Ord. 2010-07, 10-12-2010)

Each application for a special use permit shall contain the following:

   A.   Name, address, and telephone number of applicant and CAFO facility location.

   B.   Legal description of CAFO facility and real property, and each legal owner(s) or persons or entities that have an interest in said real property, and identifying their interest therein.

   C.   Existing use.

   D.   Proposed use.

   E.   Zoning district.

   F.   A vicinity map of a radius of one mile from the CAFO, at a scale of one inch equals six hundred sixty feet (1" = 660') or eight inches equals one mile (8" = 1 mile), showing the following:

      1.   Land use.

      2.   Surface watercourses.

      3.   Wells.

      4.   Designate/outline the area where the CAFO facility as defined in this chapter, is or will be located.

      5.   Public thoroughfares.

      6.   Traffic access: ingress, egress, and road widths to conform to uniform fire code (20 feet minimum) for emergency access.

   G.   A site plan as required under the NPDES permit or NMP.

   H.   Letter from any affected canal company relative to the CAFO.

   I.   Letter from local fire protection district approving roads on the site plan.

   J.   Letter from local highway district, approving ingress and egress points on site plan.

   K.   A letter of certification from ISDA, or the applicable state or federal agency, that the CAFO has an approved nutrient management plan.

   L.   A nonrefundable fee shall be submitted with the application in an amount based upon the following formula:

      1.   New permits: Two thousand dollar ($2,000.00) fee, plus twenty five cents ($0.25) per animal unit.

      2.   Applications accompanied with a variance request shall include an additional five hundred dollars ($500.00). (All dollar amounts to be determined by the board.) The application fees shall be reviewed and will be set by resolution of the board of county commissioners.

   M.   The actual costs expended by the county to process a special use permit application, including legal fees and any special costs in addition to the above, shall be due and payable upon invoice from the administrator.

In addition to the above, if the permit application is for modification, expansion or material change as defined under section 10-21-4 of this chapter to an existing CAFO, the application shall contain the following information in addition to the information set out above:

      1.   A complete site plan of the modification, expansion or material change in relationship to the original site plan.

      2.   A list of the number and species or livestock to be increased.

      3.   A letter from the Idaho department of agriculture or other governing agencies verifying compliance of NMP or NPDES permit for such expansion. (Ord. 2010-07, 10-12-2010)

   A.   Consultation: Prior to the applicant seeking a nutrient management plan from the appropriate state agency, the applicant shall meet with the building administrator to discuss setbacks, compliance with Power County comprehensive plan and this code concerning location of a CAFO and all facilities. The building administrator shall consult with the board of county commissioners to determine if the board of county commissioners desires to request a CAFO site advisory team be formed. If the board of county commissioners determines that a CAFO site advisory team will be helpful, the building administrator should take the necessary steps pursuant to Idaho Code and this chapter to organize a CAFO site advisory team.

   B.   Application Review: Prior to the building administrator scheduling a public hearing on a CAFO application, the building administrator shall meet with the applicant and review the submitted information as outlined in section 10-21-6 of this chapter in preparation of the working session review with the planning and zoning commission.

   C.   Session Review: The working session review will be scheduled by the building administrator with the concurrence of the planning and zoning commission chairman. The working session review may be at a regular planning and zoning meeting or at a special work session.

   D.   Public Hearing: At the work session, the planning and zoning commission will discuss with the building administrator the appropriate time for a public hearing required for the special use permit.

   E.   Presentation: The administrator shall submit a notice of hearing to the commission for one public hearing. At such hearing all members of the public desiring to present oral or written comment, or documentary evidence, shall be allowed to do so, subject to the hearing procedures (including limits of time) of the planning and zoning commission.

   F.   Prior Notice: At least fifteen (15) days prior to the hearing, notice of the time and place and a summary of the proposed CAFO shall be published in the county's official newspaper. Notice may also be made available to other newspapers, radio and television stations serving Power County. Fifteen (15) days' prior notice shall also be provided by first class mail to property owners within one mile of the CAFO and any affected person that has made written request to the administrator for notice.

   G.   Decision: The decision granting or denying an application brought pursuant to this chapter shall be in writing and shall conform to the standards and criteria set forth in Idaho Code section 67-6535. (Ord. 2010-07, 10-12-2010)

Prior to the approval of a special use permit for a new CAFO, the commission must find that the new CAFO meets the following requirements:

   A.   General Requirements:

      1.   The CAFO must comply with and not be in violation of any federal, state or county law or county ordinance.

      2.   The operator must not have begun construction of new improvements for a CAFO upon land to be used as a CAFO. If it is determined by the administrator that construction has commenced, penalties may be imposed by the commission in accordance with section 10-21-16, "Enforcement" of this chapter.

   B.   Letter Of Certification: A letter of certification from ISDA, or the applicable state or federal agency, that the CAFO has an approved nutrient management plan.

   C.   Property Rights And Setbacks:

      1.   For the purpose of distribution or application of waste, the setbacks contained herein shall not apply.

      2.   The waste management system or composting area shall not be located or operated closer than two thousand six hundred forty feet (2,640') from a residence belonging to someone other than the applicant, or be located and/or operated closer than three hundred feet (300') from property lines. No new residence located in an agricultural zone shall be built within two thousand six hundred forty feet (2,640') of a waste treatment system.

      3.   No waste management system or composting area shall be located and/or operated closer than two thousand six hundred forty feet (2,640') from a domestic well not owned by the CAFO. A domestic well for a new residence, which does not belong to the CAFO, must meet the two thousand six hundred forty foot (2,640') setback from CAFO waste treatment system.

      4.   Composting area(s) shall have a three hundred foot (300') setback from the public right of way.

      5.   The waste management system shall have a two thousand six hundred forty foot (2,640') setback from the public right of way.

      6.   Corrals, waste lagoons, or other structures containing liquid waste shall be located at least two thousand six hundred forty feet (2,640') away from any residence not belonging to the owner of the CAFO. Residences shall be constructed at least two thousand six hundred forty feet (2,640') away from existing areas containing liquid waste not belonging to the owner constructing the residence. Corrals shall have a sixty foot (60') setback from a public right of way and property lines.

      7.   All feed storage areas shall have a sixty foot (60') setback from a public right of way and three hundred feet (300') from an existing residence not owned by operator.

      8.   Lights from CAFOs shall be placed and shielded to prevent the light source from becoming a nuisance or hazard outside the property lines of the CAFO.

      9.   No CAFO facility shall be located within two thousand six hundred forty feet (2,640') of a transitional zone, residential zone or an existing platted subdivision with improvements constructed as of the effective date hereof. Residential subdivisions proposed after the effective date hereof shall be located no closer than two thousand six hundred forty feet (2,640') to any existing CAFO facility with improvements.

      10.   No CAFO facility shall be located within two thousand six hundred forty feet (2,640') of the rim of the Snake River Canyon, the reservoir high water mark or zone "A" floodplains as set out on the federal emergency management agency's 1985 flood insurance rate map for Power County. However, this setback can be adjusted on an individual basis if the operator can establish that they have taken the appropriate steps to mitigate or eliminate the possibility of polluting the water sources or the neighboring property. No variance shall be granted to his setback if it would cause an adverse impact to the neighboring property owners.

      11.   Aquaculture CAFOs are exempt from the setbacks contained herein except for storage of solid waste on the land.

      12.   No CAFO shall be located within an area that is a high water table area or wetland area in regards to the water table level as determined by a soil survey map from the natural resources conservation service (NRCS).

   D.   Obligation: Any and all permits granted within this chapter also bind the owners, their heirs, successors and assigns to the real property and the requirements under this chapter.

   E.   Deceased Animals: CAFO operators are required to shield any dead animals from public view and properly dispose of them within ninety six (96) hours per IDAPA 02-04-17-030. (Ord. 2010-07, 10-12-2010)

The commission shall specify:

   A.   The standards used in evaluating the application.

   B.   The reasons for approval or denial.

   C.   The actions, if any, that the applicant could take to obtain a permit. (Ord. 2010-07, 10-12-2010)

A variance can be sought to the setbacks contained in this chapter by making a written request for a variance at the time of the filing of the application for the special use permit. A variance is a modification of the requirements of this chapter as to the setbacks and no variances shall be granted to the requirements to the animal density numbers for any CAFO. A variance shall not be considered a right or special privilege but shall be granted to an applicant only upon his showing of undue hardship because of the characteristics of the site and that the variance is not in conflict with the public interest. Prior to granting a variance notice, an opportunity to be heard shall be provided to property owners joining the parcel under consideration and to those persons who have previously requested a notice are an affected person. The procedure for considering a variance shall follow the provisions as set out in the Power County zoning ordinance for the variances. (Ord. 2010-07, 10-12-2010)

Prior to use of the expanded facilities of an existing CAFO or occupation of a new CAFO by livestock, fish or birds, an occupancy certificate is required. (Ord. 2010-07, 10-12-2010)

   A.   After grant of the special use permit ("permit"), but prior to commencing construction of improvements, the permit owner shall notify the administrator of the commencement of the construction in writing.

   B.   Any changes to an existing special use permit as a result of a reapplication of the NMP under section 10-21-5 of this chapter, of the CAFO facility or to the location of any waste treatment or waste storage systems within the site plan must be submitted to the planning and zoning administrator for approval. The request must clearly specify the change(s) and provide an explanation or justification for the change(s). If the change to the NMP is a result of relocation of the waste treatment system, or increase in capacity, notice of change shall be given to those affected persons.

   C.   Inspection of the construction progress of the facilities authorized by the permit shall occur at regular intervals or at the request of the permit owner. The building inspector or the administrator, as appropriate under the circumstances, shall perform the inspections.

   D.   The building inspector or the administrator shall have the authority to issue and post on the premises of the CAFO a "stop work" order if an inspection reveals a material violation of the terms of the permit. All work must stop after posting the order. The permit owner may appeal such an order to the commission or the board, as necessary, in accordance with the provisions of the Power County zoning ordinance.

   E.   A final approval letter must be submitted to the planning and zoning administrator from the appropriate state or federal agency certifying that the CAFO was constructed as outlined in the NMP.

   F.   After completion of the construction of the facilities authorized by the permit, or any approved change requests or noncompliance corrections, the administrator shall issue an occupancy certificate to the permit owner. The certificate shall certify and verify that all facilities have been inspected and conform to the terms of the permit, with approved changes, and the permit owner is fully authorized to occupy and operate the CAFO facilities.

   G.   Once approved and under operation, the owner or operator shall submit to the Power County CAFO administrator any changes in the NMP as described in subsection B of this section. Additionally, the owner or operator shall allow any authorized county officer or employee to enter onto the facility for purposes of ensuring compliance with county regulations which are applicable to the operation and for purposes of ensuring the operation does not exceed the permitted number and type of animal units.

   H.   If the administrator denies issuance of an occupancy certificate, said denial shall be rendered in writing. If a denial is rendered, an appeal may be presented to the board of county commissioners, as necessary, in accordance with the provisions of the Power County zoning ordinance. (Ord. 2010-07, 10-12-2010)

All CAFOs shall follow and be in compliance with their NMP which have been approved by state and federal agencies for that CAFO. The information received in the process of the registration or application for a special use permit for a CAFO to be trade secrets pursuant to Idaho Code section 9-340(4) and not subject to the Idaho public records law. (Ord. 2010-07, 10-12-2010)

A poultry or swine CAFO shall apply for a special use permit for the placement and operation of a CAFO. Special use permits shall follow procedures set forth in the Power County planning and zoning ordinance. (Ord. 2010-07, 10-12-2010)

Any applicant or affected person aggrieved by a decision of the planning and zoning commission shall have the right to appeal to the board of county commissioners. Appeals shall be governed and processed in accordance with the provisions of the Power County zoning ordinance and shall be submitted in writing within thirty (30) days of the date of the board's decision along with any required fee. (Ord. 2010-07, 10-12-2010)

   A.   In order to carry out the intent and purposes of this chapter, any authorized representative of Power County, selected by the Power County board of county commissioners, or agency authorized to review alleged violations in order to allow the county to enforce this chapter is hereby authorized to do any of the following within their jurisdiction:

      1.   Carry out any activities necessary to ensure compliance of this chapter, to protect the health, safety and welfare of the residents of Power County (i.e., letter of noncompliance of special use permit or refer to appropriate agency).

      2.   Information from the inspection report, or the report itself, shall be delivered to the administrator of Power County and filed in special use permit file and copy sent to the facility and/or operator.

   B.   If the administrator receives a signed written complaint of alleged noncompliance with the terms of a special use permit, the administrator shall give notice of the complaint to the permit owner and shall determine the validity of the complaint within ten (10) business days of this receipt. The permit owner can submit rebuttal evidence to the administrator concerning the complaint. Written notice of the administrator's decision shall be given to the permit owner and the complaining party. The permit owner can appeal any of the administrator's decisions to the commission. The permit owner shall be required to correct the noncompliance or appeal the administrator's decision within twenty (20) days of the date of the administrator's determination. If no appeal is filed, the correction must be completed within ninety (90) days of the date of the administrator's written determination unless the administrator has granted a written extension. If a longer period of time is needed to make the corrections, the applicant can request a longer extension from the commission.

   C.   Violations of any of the provisions of this chapter or failure to comply with any of its requirements shall constitute a misdemeanor as defined by Idaho Code section 18-113, and is punishable by up to six (6) months in jail and up to a one thousand dollar ($1,000.00) fine, or both. Each day that such violation continues shall be considered a separate offense.

   D.   In the event any affected person alleges that the CAFO no longer meets the criteria set forth herein and in the occupancy certificate, the affected person may initiate a contested case before the board as governed by chapter 52, title 67, Idaho Code, and Idaho's administrative procedure act. The board shall conduct a hearing in accordance with the provisions of chapter 52, title 67, Idaho Code. Following the hearing, the board may:

      1.   Find in favor of the CAFO; or

      2.   Find in favor of the complainant; and

      3.   Revoke the occupancy certificate; or

      4.   Suspend the occupancy certificate; or

      5.   Suspend the occupancy certificate for a definite period; or

      6.   Modify the occupancy certificate; or

      7.   Provide conditions upon the occupancy certificate.

   E.   Further, the board may at any time take immediate action to protect the public in accordance with the process set forth in Idaho's administrative procedure act. Specifically Idaho Code section 67-5247.

   F.   It shall be unlawful and a misdemeanor to interfere with, hinder or refuse to allow any authorized county officer or employee to enter upon private or public property to enforce the provisions of this chapter.

   G.   The following shall be considered a violation of this chapter:

      1.   Failure to comply with the requirements of this chapter.

      2.   Knowingly making a false statement, representation, or certification in any application, report document, or record developed, maintained, or submitted pursuant to this chapter or rule of any state of Idaho agency having jurisdiction of a CAFO. (Ord. 2010-07, 10-12-2010)