Susanne Skyrm, co-chair of the Living River Group, Sierra Club, read this statement to the Clay County Board of Adjustment Tuesday morning as the board heard input on the organization’s appeal of the approval by the Clay County Planning Commission of a conditional use permit to Travis Mockler that would allow him to expand his animal feeding operation from small to medium:

“We have found that there were serious problems not only with the application and the lack of adherence to the required procedures, but also with the proposal itself,” Skyrm told the board, summarizing a lengthy statement that had been submitted by the Living River Group, Sierra Club, “with the approval of two medium animal feeding operations in an environmentally sensitive site.

She added that in Mockler’s March 25, 2019 Conditional Use Permit Application, “there were not enough or no details which are required by the Clay County ordinance, including details pertaining to the site plan, buildings, manure storage and management, information on soils, floodplain designation, and methods of preventing discharges into Waters of the State.

“As of the April 29 meeting at which the application was approved, there was still no detailed site plan, not even a sketch of proposed buildings in which animals would be confined along with their urine and manure,” Skyrm said, “and no details of a manure management plan beyond the statements that manure would be ‘piled,’ and that there would be ‘no discharge.’ When asked whether the zoning administrator or any member of the commission had personally inspected the proposed site, nobody answered in the affirmative.”

She said the Living River Group, Sierra Club found the application lacked a basic requirement of the Clay County Ordinance: a “letter opinion from the Natural Resource Conservation Service District (NRCS) to determine whether the operation will be considered an Animal Feeding Operation (AFO) or a Concentrated Animal Feeding Operation (CAFO). The letter shall state how the NRCS made that determination.”

The NRCS District Conservationist, Jeff Loof sent a one sentence letter on March 22, Skyrm said, in which he declined to make such a determination, and suggested that Mockler seek a determination from the SD Department of Environment and Natural Resources.

“At the April 29 Planning and Zoning Commission meeting at which the application was approved, the zoning administrator implied in her written summary that the applicant had followed up on this suggestion,” Skyrm said. “In fact, the email from DENR’s Feedlot Permit Program manager, Kent Woodmansey, is dated Feb. 27, 2019, and there is no indication that the applicant or the zoning administrator followed through on Loof’s suggestion by supplying the details that DENR said might help make an ‘accurate’ determination of the AFO/CAFO question. “This issue alone, the failure to comply with the Clay County Zoning Ordinance 3.07.3, means that this conditional use application has not complied with the ordinance, and cannot be legally approved.”

Skyrm noted that on April 15, citizens tried to supply some of the information that the agency (SD DENR) said was necessary to make an accurate determination of whether the proposed AFO should be regulated as a CAFO, including topographical maps and photographs of the proposed site, but the DENR declined to intervene.

“Based on the number of animals in the proposed dual operations, one medium swine facility and one medium cattle facility, which combined would clearly meet the threshold of a large Animal Feeding Operation, and hence, a CAFO, the proposed facility should require regulation as a CAFO,” Skyrm told the board. “The Clay County ordinance states that ‘Two or more animal feeding operations under common ownership are a single animal feeding operation if they…use a common area or system for the disposal of manure,’ which the proposed operation would do.”

In lieu of the letter from the Natural Resources Conservation Service that is required by the Clay County Ordinance, the applicant substituted the email from DENR’s Kent Woodmansey, Skyrm said, adding that the letter was cited as a determination that the proposed operation should be considered an AFO, even though the letter clearly stated that this conclusion was based solely on the applicant’s assertion that there would be “no discharge to Waters of the State.”

“This claim defies logic,topography, gravity, and this spring’s weather,” she said. “The DENR’s letter stated that any accurate determination would require submission of numerous additional critical details, including information about the presence of vegetation during the normal growing season, information about where runoff from existing or proposed open areas will be directed and information about runoff controls and manure containment measures for existing and proposed operations. But those details were not provided.

Skyrm said at the April 29 Planning and Zoning meeting at which the application was approved, the Planning and Zoning administrator falsely implied that the DENR opinion was based upon information she presented at the April 29 meeting, information that was not included in the Conditional Use application dated Feb. 28, 2019.

“Manure application maps are incomplete. They fail to note that much of the targeted land is designated as floodplain and Natural Resources Conservation District, and they fail to delineate required setbacks from the Vermillion River,” she said.

Skyrm said the applicant (Mockler) made false or misleading representations at two public hearings.

“At the Jan. 3, 2019 public hearing at which a portion of the proposed AFO site was rezoned at his request from the Natural Resources Conservation District, where the proposed operation would be prohibited, to the Agricultural District, Mr. Mockler stated that his pasture grass would stop runoff to Waters of the State, thus admitting the obvious, that runoff would occur, but simultaneously misrepresenting the condition of his grassland, which as March 18, 2019 photographs illustrate, was grazed to the ground,” she said.

Skrym told the board that Mockler stated at the March 25 public hearing that the proposed facility is about 150 feet above the floodplain.

“As readily accessible topographical maps -- maps in which the Planning and Zoning Commission showed little interest -- illustrate, the site is approximately 50 feet above the floodplain of the Vermillion River,” she said. “The land slopes precipitously west to the river and steadily south to a tributary which flows directly to the Vermillion River approximately one-quarter mile south of the Mockler property.”

Skyrm noted that as a county commissioner and as the commission representative on the Planning and Zoning Commission, Mockler pushed through changes to the Clay County ordinance that would allow expansion of a small AFOs to a medium AFOs without required setbacks.

“We feel that this is a conflict of interest and an abuse of power and sets a precedent that might tie the hands of commissioners regarding any similar requests,” she said. “There were some failures to follow due process and failures of transparency. A member of the public asked that the March 25 public hearing be recorded, but the zoning administrator said that was not feasible.”

Skyrm said the March 25 public hearing ended with a referral to the State’s Attorney for a determination of whether the application and the process adhered to the requirements of the Clay County Ordinance.

“She announced that she lacked authority to make such a judgment, a position she elaborated upon at the April 29 meeting,” she said. “So, we didn’t have that.”

Article 7.01 of the Clay County Ordinance states that the zoning administrator is “authorized and directed to enforce all the provisions of the Zoning Ordinance,” Skyrm said, noting that the role of the zoning administrator is to impartially apply the rules of the zoning ordinance based on facts and in the case of animal feeding operations to ensure that they meet the requirements of the ordinance, including to “protect ground and surface waters.”

“The zoning administrator said publicly more than once that she simply relies on applicants’ statements, no independent verification needed,” she said. “We feel that her job should be not to trust, but to verify. Interestingly, also, on March 25 she said that this was the first AFO/CAFO application she had worked since the adoption of the 2017 revisions to the ordinance, so they were still working out the bugs, but at the April 29 meeting, one commissioner said that this was the third such application that they had considered, so it should be approved, just as the others had, so there is a discrepancy there.

“The zoning administrator also stated to me, when I delivered the original letter of appeal on April 1, that no new information would be added to the application as it stood after the March 25 meeting,” Skyrm said, “but new information was submitted at the April 29 meeting, including a new map and the zoning administrator’s elaborated responses to requirements of the ordinance in defense of the application.”

She told the board of adjustment that there should be full adherence to the county ordinance by public officials.

“If the applicant wishes to pursue such development, it should require at a minimum state-of-the art runoff controls and manure management safeguards stipulated by SD DENR for Concentrated Animal Feeding Operations,” Skyrm said.

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