# Title 33.1 — Department of Environmental Quality

## Article 33.1-16 — Control, Prevention, and Abatement of Pollution of Surface Water

## Chapter 33.1-16-03.1 — Control of Pollution from Animal Feeding Operations

### § 33.1-16-03.1-01. Authority.

The department of environmental quality has been authorized to provide and administer this
chapter relating to the control of pollution from animal feeding operations under the provisions of North
Dakota Century Code section 61-28-04.
History: Effective January 1, 2019.
General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04
### § 33.1-16-03.1-02. Scope and purpose.

This chapter establishes procedures governing the application for, and the issuance, denial,
modification, and revocation of, permits for animal feeding operations to maintain beneficial uses of and
prevent degradation of quality of the waters of the state.
History: Effective January 1, 2019.
General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04
### § 33.1-16-03.1-03. Definitions.

The terms used throughout this chapter have the same meaning as in North Dakota Century Code
chapter 61-28, except:
1. "Animal feeding operation" means a lot or facility, other than an aquatic animal production
facility, where the following conditions are met:
a. Animals, other than aquatic animals, have been, are, or will be stabled or confined and
fed or maintained for a total of forty-five days or more in any twelve-month period; and
b. Crops, vegetation, forage growth, or post-harvest residues are not sustained in the
normal growing season over any portion of the lot or facility.
2. "Bedding material" means an absorbent substance applied to dirt or concrete flooring
systems, including wood shavings, wood chips, sawdust, shredded paper, cardboard, hay,
straw, hulls, sand, and other similar, locally available materials.

3. "Best management practices" means schedules of activities, prohibitions of practices,
conservation practices, maintenance procedures, and other management strategies to
prevent or reduce the pollution of waters of the state. Best management practices also include
treatment requirements, operating procedures, and practices to control production area and
land application area runoff, spillage or leaks, sludge or waste disposal, or drainage from raw
material storage.
4. "Concentrated animal feeding operation" means an animal feeding operation that is defined as
a large, medium, or small concentrated animal feeding operation or any animal feeding
operation designated as a concentrated animal feeding operation under section
### § 33.1-16-03.1-04. For purposes of determining animal numbers, two or more feeding

operations under common ownership are considered to be a single animal feeding operation if
they adjoin each other or if they use a common area or system for the disposal of wastes.
5. "Earthen storage pond" or "pond" means a topographic depression either below or above
ground level, manmade excavation, or diked area formed primarily of earthen materials,
although it may be lined with manmade materials or other seepage control materials, and
used to store manure, process wastewater and runoff from the production area of a facility.
6. "Engineer" means a professional engineer registered to practice in the state of North Dakota.
7. "Facility" is an animal feeding operation.
8. "General permit" means a general state animal feeding operation permit. This is a permit
issued to cover multiple facilities of the same or similar type, without requiring each facility to
be covered under an individual permit.
9. "Large concentrated animal feeding operation" means any animal feeding operation that
stables or confines as many as or more than the numbers of animals, not including unweaned
young, specified in any of the following categories:
a. Seven hundred mature dairy cows, whether milked or dry;
b. One thousand veal calves;
c. One thousand cattle other than mature dairy cows or veal calves. "Cattle" includes
heifers, steers, bulls, and cow-calf pairs;
d. Two thousand five hundred swine, each weighing fifty-five pounds or more;
e. Ten thousand swine, each weighing less than fifty-five pounds;
f. Five hundred horses;
g. Ten thousand sheep or lambs;
h. Fifty-five thousand turkeys;
i. Thirty thousand laying hens or broilers, if the animal feeding operation uses a liquid
manure handling system;
j. One hundred twenty-five thousand chickens (other than laying hens), if the animal
feeding operation uses other than a liquid manure handling system;
k. Eighty-two thousand laying hens, if the animal feeding operation uses other than a liquid
manure handling system;

l. Thirty thousand ducks, if the animal feeding operation uses other than a liquid manure
handling system; or
m. Five thousand ducks, if the animal feeding operation uses a liquid manure handling
system.
10. "Litter" means a mixture of fecal material, urine. animal bedding material, and sometimes
waste feed.
11. "Manure" means fecal material and urine, animal-housing wash water, bedding material, litter,
compost, rainwater, or snowmelt that comes in contact with fecal material and urine, and raw
or other materials commingled with fecal material and urine or set aside for disposal.
12. "Manure handling system" means all of the water pollution control structures used at the
production area of a facility.
13. "Manure storage pond" means an earthen storage pond that stores liquid manure and process
wastewater from indoor confined animal feeding operations.
14. "Manure storage structure" means any water pollution control structure used to contain or
store manure or process wastewater. It includes earthen manure storage ponds; runoff ponds;
concrete, metal, plastic, or other tanks; and stacking facilities.
15. "Medium animal feeding operation" means any animal feeding operation that stables or
confines the numbers of animals, not including unweaned young, specified within any of the
following ranges:
a. Two hundred to six hundred ninety-nine mature dairy cows, whether milked or dry;
b. Three hundred to nine hundred ninety-nine veal calves;
c. Three hundred to nine hundred ninety-nine cattle other than mature dairy cows or veal
calves. "Cattle" includes heifers, steers, bulls, and cow-calf pairs;
d. Seven hundred fifty to two thousand four hundred ninety-nine swine, each weighing
fifty-five pounds or more;
e. Three thousand to nine thousand nine hundred ninety-nine swine, each weighing less
than fifty-five pounds;
f. One hundred fifty to four hundred ninety-nine horses;
g. Three thousand to nine thousand nine hundred ninety-nine sheep or lambs;
h. Sixteen thousand five hundred to fifty-four thousand nine hundred ninety-nine turkeys;
i. Nine thousand to twenty-nine thousand nine hundred ninety-nine laying hens or broilers,
if the animal feeding operation uses a liquid manure handling system;
j. Thirty-seven thousand five hundred to one hundred twenty-four thousand nine hundred
ninety-nine chickens (other than laying hens), if the animal feeding operation uses other
than a liquid manure handling system;
k. Twenty-five thousand to eighty-one thousand nine hundred ninety-nine laying hens, if the
animal feeding operation uses other than a liquid manure handling system;
l. Ten thousand to twenty-nine thousand nine hundred ninety-nine ducks, if the animal
feeding operation uses other than a liquid manure handling system; or

m. One thousand five hundred to four thousand nine hundred ninety-nine ducks, if the
animal feeding operation uses a liquid manure handling system.
16. "Medium concentrated animal feeding operation" means a medium animal feeding operation
that meets either one of the following conditions:
a. Pollutants are discharged into waters of the state through a manmade ditch, flushing
system, or other similar manmade device; or
b. Pollutants are discharged directly into waters of the state which originate outside of and
pass over, across, or through the facility or otherwise come into direct contact with the
animals confined in the operation.
17. "North Dakota Livestock Program Design Manual" means the guidelines established for use
by the department in the review and permitting process for animal feeding operations.
18. "Nutrient management plan" means a written description of the equipment, methods, and
schedules by which:
a. Manure, litter, and process wastewater is beneficially reused in an environmentally safe
manner such as being applied to land at appropriate agronomic rates as nutrients or
fertilizers; and
b. Water pollution and air pollution, including odors, are controlled sufficiently to protect the
environment and public health.
19. "Open lot" means livestock pens, feeding or holding areas at the production area of an animal
feeding operation which are outside and not under roof, and where rain can fall directly on the
lot area.
20. "Open manure storage structure" means an earthen pond or storage tank for holding liquid
manure which is not covered so rainfall can fall directly into the pond or tank.
21. "Operation and maintenance plan" means a written description of the equipment, methods,
and schedules for:
a. Inspection, monitoring, operation, and maintenance of the animal feeding operation,
including manure storage structures, water pollution control structures, and the
production area; and
b. Controlling water pollution and air pollution, including odors sufficient to protect the
environment and public health. It includes emergency response actions for spills,
discharges or failure of a collection, storage, treatment, or transfer component.
22. "Operator" means an individual or group of individuals, partnership, corporation, joint venture,
or any other entity owning or controlling, in whole or in part, one or more animal feeding
operations.
23. "Overflow" means the discharge of manure or process wastewater resulting from the filling of
wastewater or manure storage structures beyond the point at which no more manure, process
wastewater, or storm water can be contained by the structure.
24. "Pollutant" means "wastes" as defined in North Dakota Century Code section 61-28-02,
including dredged spoil, solid waste, incinerator residue, garbage, sewage, sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged
into water.

25. "Process wastewater" means water directly or indirectly used in the operation of the animal
feeding operation for any or all of the following: spillage or overflow from animal or poultry
watering systems; washing, cleaning, or flushing pens, barns, manure pits, or other animal
feeding operation facilities; direct contact swimming, washing, or spray cooling of animals; or
dust control. Process wastewater also includes any water which comes into contact with any
raw materials, products, or byproducts, including manure, litter, feed, milk, eggs, or bedding
material.
26. "Production area" means those areas of an animal feeding operation used for animal
confinement, manure storage, raw materials storage, and waste containment. The animal
confinement area includes open lots, housed lots, feedlots, confinement houses, stall barns,
free stall barns, milking rooms, milking centers, cattle yards, barnyards, medication pens,
walkers, animal walkways, and stables. The manure storage area includes lagoons, runoff
ponds, storage sheds, stockpiles, under-house or pit storages, liquid impoundments, static
piles, and composting piles. The raw materials storage area includes feed silos, silage
bunkers, and bedding materials. The waste containment area includes settling basins, areas
within berms, and diversions which separate uncontaminated storm water. Also included in the
definition of production area is any egg washing or egg processing facility and any area used
in the storage, handling, treatment, or disposal of mortalities.
27. "Runoff" means rainwater or snowmelt that comes in contact with manure at an open lot or
open manure storage area and, therefore, is defined as manure.
28. "Runoff pond" means an earthen storage pond that is used to collect and store runoff from an
open lot or from a manure storage area.
29. "Seepage" means the volume of flow through a manure storage structure.
30. "Sensitive ground water area" means vulnerable hydrogeologic settings as determined by the
department such as glacial outwash deposits or alluvial or aeolian sand deposits that are
critical to protecting current or future underground sources of drinking water. Areas designated
as sensitive ground water areas by the department include alluvial or aeolian sand deposits
shown on Geologic Map of North Dakota (Clayton, 1980, North Dakota geological survey) and
glacial drift aquifers listed in North Dakota Geographic Targeting System for Groundwater
Monitoring (Radig, 1997, North Dakota department of health), or most recent editions of these
publications, with DRASTIC scores greater than or equal to 100 based on methodology
described in DRASTIC: A Standardized System For Evaluating Groundwater Pollution
Potential (Aller et al., 1987, United States environmental protection agency).
31. "Small animal feeding operation" means any animal feeding operation that stables or confines
less than the numbers of animals specified for a medium animal feeding operation.
32. "Small concentrated animal feeding operation" means a small animal feeding operation
designated as a concentrated animal feeding operation under section 33.1-16-03.1-04.
33. "State animal feeding operation permit" means a permit issued by the department under this
chapter to an animal feeding operation.
34. "Surface water" means waters of the state that are located on the ground surface, including all
streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, and all
other bodies or accumulations of water on the surface of the earth, natural or artificial public or
private.
35. "Unconfined glacial drift aquifer" means a glacial drift aquifer that does not have an impervious
soil layer which acts to prevent or minimize movement of water into, through, or out of the
aquifer.

36. "Water pollution control structure" means a structure built or used for handling, holding,
transferring, or treating manure or process wastewater, so as to prevent it from entering the
waters of the state. The term also includes berms, ditches, or other structures used to prevent
clean water from coming in contact with manure.
37. "Water quality standards" means the water quality standards contained in chapter
33.1-16-02.1.
History: Effective January 1, 2019.
General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04
### § 33.1-16-03.1-04. Designation of concentrated animal feeding operations.

1. The department may designate any small animal feeding operation as a concentrated animal
feeding operation upon determining that it is a significant contributor of pollutants to waters of
the state. In making this designation, the department shall consider the following factors:
a. The size of the animal feeding operation and the amount of wastes reaching waters of
the state;
b. The location of the animal feeding operation relative to waters of the state;
c. The means of conveyance of animal wastes, manure, and process wastewater into
waters of the state; and
d. The slope, vegetation, rainfall and other factors affecting the likelihood or frequency of
discharge of animal wastes, manure, and process wastewater into waters of the state.
2. No small animal feeding operation shall be designated a concentrated animal feeding
operation under this section unless the department has conducted an onsite inspection. In
addition, no small animal feeding operation may be designated as a concentrated animal
feeding operation unless:
a. Pollutants are discharged into waters of the state through a manmade ditch, flushing
system, or other similar manmade device; or
b. Pollutants are discharged directly into waters of the state which originate outside the
facility and pass over, across, or through the facility or otherwise come into direct contact
with the animals confined in the operation.
History: Effective January 1, 2019.
General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04
### § 33.1-16-03.1-05. Operations requiring a permit.

The operator of an animal feeding operation shall apply for a state animal feeding operation permit
as follows:
1. Any animal feeding operation that has been defined as a concentrated animal feeding
operation in section 33.1-16-03.1-03 or designated a concentrated animal feeding operation
under section 33.1-16-03.1-04 must obtain a state animal feeding operation permit.
2. Any medium animal feeding operation where manure or process wastewater from the
operation causes or is likely to cause water pollution and is located within one-fourth mile
[.40 kilometer] of a stream or surface water that contains water, except for infrequent periods
of severe drought, shall apply for a state animal feeding operation permit. Waters completely

contained on an owner's property and which do not combine or affect a junction with natural
surface or underground waters are not included.
3. A medium or small animal feeding operation shall apply for a state animal feeding operation
permit when the department has determined that manure or process wastewater from the
operation causes or is likely to cause water pollution. In making this determination, the
department shall consider the following factors:
a. The size of the animal feeding operation and the amount of wastes reaching waters of
the state;
b. The location of the animal feeding operation relative to waters of the state;
c. The means of conveyance of animal wastes, manure, and process wastewater into
waters of the state; and
d. The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of
discharge of animal wastes, manure, and process wastewater into waters of the state.
4. An animal feeding operation which stables or confines animals, other than the types of
animals specified in the definition of medium animal feeding operation, shall apply for a state
animal feeding operation permit when the department has determined that manure or process
wastewater from the operation causes or is likely to cause water pollution.
History: Effective January 1, 2019.
General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04
### § 33.1-16-03.1-06. No potential to pollute determination.

[Reserved].
### § 33.1-16-03.1-07. Permit application content and procedures.

1. Any new or existing facility that is proposing an increase in the number of animals above the
level allowed in the current permit or above the level where a permit is required under section
33.1-16-03.1-05, shall apply for and obtain a state animal feeding operation permit prior to
construction or expansion. Any facility that is proposing to expand the production area, or
update or change the manure handling system, and which requires a permit under section
33.1-16-03.1-05, shall apply for and obtain a state animal feeding operation permit prior to
construction.
2. Application forms for state animal feeding operation permits are available from the
department. An operator shall furnish information requested by the department that is
consistent with this chapter. The department will not process an application unless all of the
necessary information is provided. The information within or attached to an application must
include the following:
a. The owner's and operator's name and mailing addresses.
b. The facility's legal location and mailing address.
c. A topographic map of the area where the facility is or proposes to be located and
showing the specific production area.

d. Specific information about the number, size, and type of animals proposed for the facility;
the number of days per year animals will be handled; and the type of confinement (open
or housed under roof).
e. The type of containment and storage (anaerobic lagoon, roofed storage shed, ponds,
under-floor pits, aboveground storage tanks, underground storage tanks, concrete pad,
impervious soil pad, water spreading system, other) and total capacity for manure, litter,
and process wastewater storage (tons or gallons), or other measures to meet department
requirements to prevent discharge of pollutants to waters of the state.
f. The total number of acres under control of the applicant and available for land application
of manure, litter, or process wastewater.
g. Estimated amounts of manure, litter, and process wastewater generated per year (tons or
gallons).
h. Estimated amounts of manure, litter, and process wastewater transferred to other
persons per year (tons or gallons).
i. Designs, including location, for all manure storage and water pollution control structures
and site-specific background information as specified in the North Dakota Livestock
Program Design Manual. Design plans developed by anyone other than the facility owner
must be signed by the engineer who prepared or supervised the preparation of the plans
under North Dakota Century Code chapter 43-19.1.
j. Site-specific information on topography, surface water, ground water, and soil geology.
k. A nutrient management plan or information related to a nutrient management plan as
specified in subsections 4 and 5 of section 33.1-16-03.1-08.
I. The signatures of individuals responsible for the animal feeding operation.
m. A description of how animal moralities will be handled and disposed of by the facility
operator.
In preparing an application, the operator shall follow the North Dakota Livestock Program
Design Manual.
The operator of an existing animal feeding operation may reference any information previously
submitted to the department rather than resubmitting it.
Existing information shall be updated if changes to the operation have been made since the
prior application.
3. Permit conditions. The department may impose any conditions upon a state animal feeding
operation permit to ensure proper operation of the facility to protect water and air quality,
including:
a. Sampling, testing, and monitoring at or adjacent to the facility or of manure, process
wastewater, ground water, or runoff.
b. Steps to prevent the facility from causing exceedances of water quality standards or air
quality standards and to minimize odors during land application of manure.
c. Recordkeeping and reporting.
d. Compliance schedules for upgrades at facilities to meet the requirements of this chapter.

4. If the department determines that the animal feeding operation will not cause nor likely cause
pollution of waters of the state, either after upgrades are made or at its current status, and the
department determines that it is not likely to exceed air quality standards, a state animal
feeding operation permit will be issued.
5. If manure storage or water pollution control structures were required at the facility, the
operator shall notify the department within thirty days of construction completion and provide
certification from an engineer or the designer that construction of manure storage and water
pollution control structures was completed according to designs provided with the application
or to department-approved changes.
6. The permit shall be valid until its expiration date as long as the animal feeding operation is not
materially changed, or waters of the state are not impacted pursuant to chapter 33.1-16-02.1.
If an operator plans to change the type or increase the number of animals or change the
facility, including expanding barns or pens or changing manure storage or water pollution
control structures, the operator shall inform the department in writing prior to implementation
of these changes.
7. Expiration of permits. Every state animal feeding operation permit issued by the department
shall have a fixed term not to exceed five years.
8. Renewal of permits. One hundred eighty days prior to the expiration of an existing permit, an
application for permit renewal shall be submitted to the department for review. If an operator
submits a complete application for a permit renewal at least one hundred eighty days prior to
the expiration date, but the department, through no fault of the operator, fails to issue a new
permit prior to the expiration of the previous permit, the department may extend the expired
permit until the permit is reissued. All conditions and stipulations of permits extended under
this subsection remain fully effective and enforceable.
9. Transfer of Permits. The holder of a state animal feeding operation permit may transfer it by
notifying the department in writing at least thirty days in advance of the proposed transfer
date. The notice shall include a written agreement between the current and new owners or
operators and contain a specific date for the permit transfer, and the name and address of the
individual responsible for compliance with the permit.
10. General permits. The department may issue a general state animal feeding operation permit
covering similar facilities. Any general permit shall comply with all requirements of this chapter
and shall identify criteria by which facilities may qualify for the general permit. Facilities that
would qualify for a general permit shall apply to the department for coverage under the terms
of the general permit. The department may grant a facility's request to construct and operate
under a general permit or, at its discretion, issue an individual permit if circumstances warrant.
11. Confidentiality. The department will follow the requirements of North Dakota Century Code
chapter 44-04 for all requests for facility information.
12. Setback. For the purposes of determining setbacks under North Dakota Century Code section
23.1-06-15(7), unweaned young are not included when calculating animal units, except a
cow-calf pair equals 1.0 animal unit.
History: Effective January 1, 2019.
General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04, 23.1-06-15; S.L. 2017, ch. 199, § 21
### § 33.1-16-03.1-08. Facility requirements.

1. A facility requiring a permit under this chapter must be located, designed, built, maintained,
and operated to limit or prevent pollution of or the discharge of pollutants into waters of the

state consistent with the North Dakota Livestock Program Design Manual, best professional
judgment, best management practices, and pursuant to the requirements of North Dakota
Century Code chapter 61-28, this chapter, and the facility's state animal feeding operation
permit.
2. Nutrient management plan. A nutrient management plan must be developed and a copy
maintained onsite by the owner or operator of any facility that land applies manure, litter, or
process wastewater to cropland or grassland and is required to obtain a permit. These
facilities must land apply manure, litter, or process wastewater in accordance with the current
properly developed nutrient management plan. At a minimum the nutrient management plan
must contain the following information:
a. Description of the land to which an operator has access for applying manure or process
wastewater, and adequate information to demonstrate that manure or process
wastewater, or both, will be applied at agronomic rates. The agronomic rate for nitrogen
must not exceed the plant utilization rate for the cropping year. Phosphorous must not be
applied at rates exceeding the recommendations based on either the North Dakota
phosphorous index, the North Dakota state university extension service soil tests, or
other risk assessment methods approved by the department.
b. The proposed method and timing of land application of manure and process wastewater.
c. The precautions that will be taken to:
(1) Prevent manure and process wastewater from reaching waters of the state or areas
where they have the potential to impact waters of the state; and
(2) Minimize odors to residences, and public areas where people are present during
transport and land application of manure.
d. Other information specified in the North Dakota Livestock Program Design Manual.
3. Of the facilities identified in subsection 2, the following facilities must submit a copy of their
current nutrient management plans to the department along with their application or design, or
both, plans:
a. Concentrated animal feeding operations;
b. Facilities that plan to apply manure on frozen ground;
c. Facilities with land that is designated for manure application and which also has soil
phosphorous levels that meet or exceed the very high levels for crop production based
on North Dakota state university extension service information;
d. Facilities that daily haul and land apply manure; and
e. Facilities which fail to comply with these rules or permit conditions.
4. Facilities identified in subsection 2, which do not meet conditions in subsection 3, must submit
to the department, along with their application or design, or both, plans, the following
information:
a. An indication that the facility has a nutrient management plan that meets the department
requirements;
b. The name of the individual who developed the nutrient management plan and the
organization with which that individual is affiliated;

c. The amount of land available for land application of manure;
d. The type of crops or vegetation grown on this land;
e. The typical manure application rate for each crop or vegetation grown;
f. The method and timing of application;
g. The precautions used to prevent manure from reaching waters of the state; and
h. The precautions, if needed, used to minimize odors to residences, and public areas
where people are present, during transport and land application of manure.
5. Manure storage structures. All facilities requiring permits under this chapter must meet the
following requirements:
a. All facilities regulated under this chapter shall have manure storage structures designed
and constructed to store runoff from a twenty-five-year, twenty-four-hour rainfall event,
except swine, chicken, turkey, and veal calf facilities which shall be designed and
constructed to store runoff from a one hundred-year, twenty-four-hour rainfall event. In
addition, all facilities shall collect and store all manure, process wastewater and runoff for
a minimum of two hundred and seventy days. Overflows from a properly operated
manure storage structure due to a chronic or catastrophic rainfall event in excess of
those specified, or seepage from the storage structure that is within the standards as
specified in the North Dakota Livestock Program Design Manual are not considered
violations of this chapter.
b. A ground water site assessment is required for all manure storage structures.
c. All manure storage structures must be designed and maintained to withstand natural
forces, to prevent impacts to waters of the state, and minimize seepage.
d. All earthen storage ponds shall have a properly designed and constructed liner to
minimize seepage, unless the department has determined a liner is not necessary based
on site conditions.
e. Other manure storage structure requirements specified in the North Dakota Livestock
Program Design Manual must be met.
f. The department may specify additional design or monitoring requirements as needed to
ensure facilities will satisfactorily prevent pollution to waters of the state.
6. Liquid storage facilities. All facilities requiring permits under this chapter which store liquid
manure, process wastewater, or manure-contaminated runoff must meet the following
requirements:
a. New facilities, expanding facilities significantly increasing their number of animals, or
those facilities that have not housed animals within five years must not be located over
an unconfined glacial drift aquifer unless approved by the department.
b. All facilities requiring permits under this chapter must be designed by the facility owner or
designed by or under the direct supervision of an engineer. If designed by an engineer,
all final drawings, specifications, plans, reports, or other engineering documents, when
issued, shall be signed by the engineers or land surveyors who supervised the
preparation of these documents under North Dakota Century Code chapter 43-19.1. After
construction completion, an engineer or the designer shall certify that the construction
was completed according to the design plan.

c. Other requirements specified in the North Dakota Livestock Program Design Manual.
7. Odor management. An operator shall manage a facility to minimize the impact of odors on
neighboring residents and public areas and comply with the odor requirements of North
Dakota Century Code section 23.1-06-15, North Dakota Administrative Code chapter
33.1-15-16, and the North Dakota Livestock Program Design Manual.
8. Best management practices. An operator of a facility requiring a permit under this chapter is
responsible for applying best management practices to ensure compliance with the
requirements of this chapter and the permit and to prevent pollution of waters of the state. The
best management practices used must be included in the design plans or in the nutrient
management plan.
9. Additional requirements which the department may require for facilities requiring permits under
this chapter. The department may:
a. Require the operator to install and collect routine samples from monitoring wells to
ensure that potentially usable ground water resources are not adversely impacted.
b. Require odor control for manure storage and animal housing areas and require steps to
minimize odors to residences or public areas during transport and land application of
manure.
c. Based on site-specific conditions, specify additional design or monitoring requirements
as needed to ensure the facility will satisfactorily prevent pollution of waters of the state.
History: Effective January 1, 2019.
General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04
### § 33.1-16-03.1-09. Recordkeeping and reporting requirements.

1. The operator of a facility requiring a permit under this chapter shall record and maintain the
following for a period of not less than three years:
a. Any sampling, testing, and monitoring results as required by this chapter or by the
department;
b. Maintenance and inspection records for water pollution control structures;
c. Reports and data required by this chapter, the North Dakota Livestock Program Design
Manual, and the permit; and
d. A copy of this permit.
The department may request an extension of the record retention period if a facility has failed
to comply with these rules or permit conditions or during the course of any unresolved
litigation regarding the discharge of pollutants by the operation. The information shall be
provided to department representatives upon request.
2. Reports shall be submitted to the department in accordance with the schedule prescribed and
on the appropriate forms supplied by the department or in a manner specified by the
department if required as a condition of the state animal feeding operation permit or based on
site-specific conditions. Information requested may include sampling, testing, and monitoring
results; maintenance and inspection records, records related to facility operation; or nutrient
management plan information or records.
History: Effective January 1, 2019.

General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04
### § 33.1-16-03.1-10. Enforcement and compliance.

1. The department shall evaluate all reports, notifications, and data submitted by an operator in
compliance with this chapter and the state animal feeding operation permit. The department
shall investigate all apparent violations for possible enforcement action pursuant to North
Dakota Century Code section 61-28-08.
2. No person may knowingly make a false statement, representation, or certification in any
application, record, report, plan, or other document filed or required under this chapter or the
permit. No person may knowingly falsify, tamper with, or provide inaccurate information
regarding a monitoring well or other device required under this chapter or the permit.
3. Operators of permitted facilities that are not operating properly shall update those facilities to
achieve compliance with this chapter and the conditions of the permit within a timeframe
approved by the department.
4. If the department finds that a facility, which has not been covered by a state animal feeding
operation permit within the last five years, is causing or is likely to cause pollution of waters of
the state, or poses a significant threat to public health or safety, the operator will be notified
that actions shall be taken to prevent the pollution.
5. Within one hundred and twenty days following the notification described in subsection 4, the
operator shall submit a compliance plan to prevent the facility from impacting waters of the
state.
a. The compliance plan shall be prepared in accordance with the minimum requirements of
this chapter and the North Dakota Livestock Program Design Manual. The plan shall
contain adequate information to enable the department to determine whether the
proposed measures will abate or prevent pollution of waters of the state. The operator
also shall present a proposed schedule for plan implementation and completion.
b. If the compliance plan allows for operation of the facility in a manner that will not cause
nor likely cause pollution of waters of the state, the department will issue a permit with a
compliance schedule for construction. Approval of the permit shall be contingent upon
any changes which may be required by the department after its review of the proposed
plan. The construction must be completed within the timeframe specified in the
compliance schedule.
c. If the approved compliance plan needs to be modified or amended during construction,
the operator shall notify the department prior to making any modifications or
amendments and they must be approved by the department.
6. A permit may be modified, suspended, revoked, or denied by the department for reasons
pertaining to: circumstances which do not meet the purpose and provisions of this article, the
provisions of the permit, or the plans and specifications submitted as part of the application for
permit; or, violations of any applicable laws or rules. The department shall provide written
notice to the permittee.
7. If the department revokes a state animal feeding operation permit for cause, the operator can
finish feeding the animals for up to one hundred and twenty days from the date of revocation,
provided public and environmental health are not threatened. The operator will not be allowed
to bring any other animals into the facility until the requirements of the permit, this chapter,
and the North Dakota Livestock Program Design Manual have been met as approved by the
department.

History: Effective January 1, 2019.
General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04
### § 33.1-16-03.1-11. Department inspection.

Authorized representatives of the department may request access to a facility site under authority
of North Dakota Century Code Section 61-28-04. The owner or operator of a facility may request to see
the representatives' credentials. Authorized representatives of the department shall be allowed:
1. To enter the facility site or area in which any records required to be kept under terms and
conditions of the permit, are stored;
2. To have access to and copy any records required to be kept under terms and conditions of the
permit;
3. To inspect any monitoring equipment or water pollution control structures at the facility; or
4. To sample any discharge of pollutants.
The department representatives will abide by all security measures implemented by the owner or
operator to protect the health and safety of the workers and the animals at the facility.
History: Effective January 1, 2019.
General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04
### § 33.1-16-03.1-12. Prohibited activities.

It shall be unlawful for any person:
1. To feed any livestock on the ice cover of streams or lakes.
2. To create or maintain an immediate threat to human, public, or environmental health.
3. To dispose of an animal carcass along or in any stream, lake, river, or other surface water; to
bury the carcass near any such surface water; to dispose of a carcass in an area that will
discharge into waters of the state; to dispose of a carcass in any structure used to store or
treat liquid manure, process wastewater, or storm water unless the department-approved
system is designed for such a purpose; or to dispose of a carcass in a manner that is in
violation of North Dakota Administrative Code article 33.1-20 or North Dakota Century Code
chapter 36-14.
4. To cause pollution of waters of the state or to place or cause to be placed any wastes in a
location where they are likely to cause pollution of waters of the state.
5. To discharge any pollutants into waters of the state thereby reducing the quality so as not to
comply with the water quality standards established by the department; except facilities that
are in compliance with subsection 6.
6. To discharge manure or process wastewater from a facility except:
a. The overflow of a properly operated manure storage structure due to a chronic or
catastrophic rainfall greater than a twenty-five-year, twenty-four-hour or greater than a
one hundred-year, twenty-four-hour event for swine, chicken, turkey, or veal calf facilities;
or

b. Seepage from the manure storage structures that is within the standards as specified in
the North Dakota Livestock Program Design Manual.
History: Effective January 1, 2019.
General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04
### § 33.1-16-03.1-13. Public participation.

1. If the department determines a significant degree of public interest exists regarding new or
expanding facilities, or significant revisions to a facility's nutrient management plan, it shall
issue a public notice requesting comment on applications for both individual permits and
general state animal feeding operation permits.
2. The department shall provide a period of not less than thirty days during which time interested
persons may submit comments. The period of comment may be extended at the discretion of
the department.
3. The public notice must be placed in the official county newspaper or other daily or weekly
newspaper circulated in the area of the proposed animal feeding operation. In the case of
draft general permits, the public notice will be placed in applicable official county newspapers.
The department may also use any other reasonable means to provide the public notice
information to parties potentially affected.
4. The public notice must include at least the following:
a. Name, address, and telephone number of the agency issuing the public notice.
b. Name and address of the applicant and a brief description of the application information,
including the proposed location of the facility. The exception would be draft general
permits for which there is no specific applicant.
c. The date, time, and location of any scheduled public meeting or hearing.
d. An explanation of how to view or obtain materials (e.g., copy of design plans) related to
the application and the department's review.
e. An explanation of how to submit comments.
5. The department shall send copies of the public notice to the applicant and to local
governmental entities which have jurisdiction over the area where the facility is located or is
proposed to be located.
6. The department shall hold a public meeting or hearing as it deems appropriate to allow
additional public input or to provide information to the public concerning the department's
review of the facility.
7. In making its final decision on the application or draft permit, the department shall consider all
comments submitted within a timeframe specified in the public notice and all comments
received at any public hearing. Within twenty days of the close of the public comment period,
the applicant, if any, may submit a written response to the public comments. The department
shall consider the applicant's response in making its final decision.
8. Pursuant to the requirements of this chapter and within sixty days of the applicant's response
to the public comments, the department shall make a final determination as to whether the
permit should be approved, approved with conditions, or denied.

9. The department shall notify the applicant in writing of its final determination and provide to the
applicant a copy of the final permit, if issued. Upon request, other interested individuals may
also obtain copies of the final permit.
10. Once finalized, information on general permits and their availability must be provided to
potentially eligible or affected facilities.
11. The department may combine proceedings under this chapter with proceedings to issue a
North Dakota pollutant discharge elimination system permit under chapter 33.1-16-01. The
combined proceedings will be subject to the public participation procedures in chapter
33.1-16-01.
History: Effective January 1, 2019.
General Authority: NDCC 61-28-04; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 61-28-04
