CAPR, in conjunction with the Cattle Producers of Washington has provided comments and recommendations to the State Board of Health for its proposed changes to the "Keeping of Animals" rule. Most importantly, CAPR believes regulation should be not only concise, but clear and specific. We believe the privacy and property of citizens should be protected in all regulatory language. This rule will carry a broad impact to animal keepers of both large and small scale, it is worth considering the rule language and suggesting changes or your opinion about the rule. Read our comments below: You may comment also: email@example.com
Washington State Board of Health November 6, 2020
Mr. Stuart Glasoe
Re: Animal Waste Management, Keeping of Animals – WAC 246-203-130, CR-101, and proposed CR-102
Citizens’ Alliance for Property Rights (CAPR), and the Cattle Producers of Washington (CPoW) comment upon the proposed rule revision for WAC 246.203.130, now in the second CR-101 phase of the rule-making procedure. We reiterate that while it must seem an anomaly to have a rule that has not been updated for many years, and might seem important to update the rule, the department of Health is not compelled to update or revise the rule even when a specific request has been made to do so. Often a petition to change a rule is denied, perhaps more often than it is allowed.
We are alarmed that the Board of Health is contemplating a meeting to proceed to the CR-102 phase of the Keeping of Animal Rules with relatively short notice in light of the halting of many rule-making procedures in order to focus on COVID related rules undertaken and continuing to be undertaken by the DOH and the BOH. It may seem odd that a rule request that had languished since 2009 would in these times suddenly need immediate attention.
The following is comment related to the most recent draft of the Keeping of Animals proposed rule available on the BOH website. Taking into consideration that meetings or comment opportunities for BOH rule making authorization are virtual, short notice complicates communication with citizens and precludes informed citizen input and commenting. This resultant disenfranchisement may seem necessary to the department, but the public will certainly suffer in the ability to be informed of agency actions in the current circumstances of COVID regulatory restrictions to communication and direct involvement in agency rule making. Many, even if aware of proposed changes to rules do not have the ability to timely comment on changes due to regulatory restrictions and internet connectivity issues. The BOH should consider a much longer time-frame for commenting on CR-101, and most certainly delay the filing of a CR-102 until sufficient time for notice and comment for all citizens of the state is accounted for, and a time frame more in accounting with the present regulatory environment enforced is considered.
Given the long-term status of the rule, it is consistent with common sense to consider abandoning the rule when the intent of the original rule has been superseded by rules created by other agencies, especially the Department of Ecology, and the Department of Agriculture, and will interfere with and/or cause redundant work and confusion for local sub-agencies such as local health departments and Conservation Districts who must provide on the ground local direction and support to property owners keeping animals. Have possibly unintended conflict with other agency rules been cured? Can that information be provided to stakeholders and interested citizens? Has that information been included in the rule-making file?
Specifically, we are concerned that it is unclear to whom the rule is directed. Is this directed at the urban or rural family backyard chicken or small animal keeping, or a small family farm in rural Washington, or is it directed to larger agricultural business operations? Is the rule an attempt at law-making for all the above scenarios? The proposed rule seems to expand the scope of the rule to a degree that conflicts with other agency rules. We are also concerned about the impact on horse owners, who have stated they will find it difficult to comply with the 35 feet siting limit. The proposed rule may limit or constrain new and emerging technology and improvements in composting and biochar uses.
Working dogs are integral to certain agricultural activities, guarding and herding grazing livestock. The Departments of Agriculture, Fish and Wildlife, and Ecology manage livestock and agricultural issues on many levels, how has the BOH planned to avoid conflict with these rules and programs? Is there documentation available for citizens to review regarding any conflict with State or Federal Rules pertaining to livestock and land use? Is that information included in the rule-making file, and available?
It is appreciated the proposed draft language has been edited and condensed, but the clarity of intent remains lacking, this is especially concerning when coupled with the concepts of enforcement and non-compliance. We continue to believe this should be an advisory rule rather than an enforcement rule, appreciate the recognition that any non-compliance with the rule should be corrected by the landowner, or the landowner with the assistance of conservation district staff. The proposed changes represent an overreach of the DOH and BOH statutory authority and have the potential to unnecessarily impact livestock and horse owners.
Section 2(g) should be eliminated from the rule language as it is lacking in specific terms. ““Nuisance” includes an act or omission that harms, endangers, or interferes with the health or safety of another person.” For example, to what act or omission does Section 2(g) refer? Exactly what sort of health is referred to, does this include factors of mental health, the health of a person’s well being as far as odor, enjoyment of a vista, or normal or natural animal noise or sounds? These ideas must be specific or they leave animal owners open to a myriad of complaints or enforcement issues that can harm the well-being and viability of families working and living on small or large agricultural operations or activities.
Section 3 is problematic: “(3) Unless superseded by more stringent standards in federal, state, or municipal law, the following standards shall be met in order to help prevent, control, and abate nuisance and health hazards related to the disposal of domestic animal waste. Excluding practices associated with free-range grazing, pasture livestock, livestock trails, and trail riding, domestic animal waste must:”
The language “superseded with more stringent standards in federal, state, or municipal law” should be changed, and should read (3) Unless
superseded by more stringent in conflict with standards in federal, state, or municipal law, the following standards shall be met in order to help prevent, control, and abate nuisance and health hazards in Section 2 (g) related to the disposal of domestic animal waste. Excluding practices associated with free-range grazing, pasture livestock, livestock trails, and trail riding, domestic animal waste must:
Again, in Section 3, the word nuisance must be removed. Nuisance law is described in other statutes and this statute will create conflict with existing law, and conflict with any changes to that statute, resulting in the need for additional rule changes. Health hazards must be specific and specific language must be created for Section 2 (g).
If enforcement language in Section 4 is not eliminated, it should be amended to provide safeguards to the privacy and safety of property owners and local or state health officers with the following language:
(4) The local health officer may investigate and enforce this section. Enforcement actions may include any proceeding within the local health officer’s statutory authority. Before taking enforcement action the local health officer must
attempt to communicate coordinate with the person who owner of the property in question and the owner of the animal who may be in violation of this section prior to accessing a property for inspection or enforcement in order to explore the facts and, if the local health officer determines that a violation has occurred, allow the person reasonable time to correct the violation.
The local health officer must require any agency or the authorized agents of any agency to be authorized by the owner of the property or animal in question to be authorized by the property owner prior to accessing the property.
In cases where an attempt to gain authorization from a property owner to inspect a property has been made and documented, and inspection has not been authorized by a property owner, the local health jurisdiction may follow the procedures established for an administrative search warrant in RCW 70.118.030.
We continue to find it troubling and objectionable when rule language does not have a direct and readily identifiable application, bearing, or reference and is compounded with enforcement language which directs the police power of the state to cause all manner of local and state authorities to be fined. We find in this circumstance, the scope and authority of the Board of Health to be overstated, if not breached. The below seems unnecessary in light of other rules made after the establishment of WAC 246.203.130 Undoubtedly, the Board of Health is aware that sweeping proposals and changes to definitions for and parameters of authority of law enforcement agencies in various locations are imminent, which may impact both citizens and the protections afforded them by existing law. It is strongly advised any enforcement language should be removed from the proposed rule, please confirm RCW 43.20.050 (5) has been removed in full.
“RCW 43.20.050 (5) All local boards of health, health authorities and officials, officers of state institutions, police officers, sheriffs, constables, and all other officers and employees of the state, or any county, city, or township thereof, shall enforce all rules adopted by the state board of health. In the event of failure or refusal on the part of any member of such boards or any other official or person mentioned in this section to so act, he or she shall be subject to a fine of not less than fifty dollars, upon first conviction, and not less than one hundred dollars upon second conviction.”
Citizens’ Alliance for Property Rights
Cattle Producers of Washington
After months of flexing its COVID regulatory muscles, the State Board of Health is picking up where it left citizens in limbo with its Keeping of Animals Rule. The rule had lain dormant for many years, but in 2009 the department received a request to update the rule. The Board initially denied the petition, but began work to explore the issues and issued a report on environmental health surrounding the Keeping of Animals in 2018.
Fast forward to a new filing for a rule change in October 2019, followed by limited stakeholder input and then the COVID interruption. Of late, however, the BOH has decided to take the one rule draft and advance it through to the next step in rule-making. After filing a CR-102, there will be public input, but a decision to pass the rule could soon thereafter follow.
CAPR has provided public comment in email form to Stuart Glasoe, BOH, at Stuart.Glasoe@sboh.wa.gov in advance of a November 9th State Board of Health Meeting which will be held virtually. If you are interested in that meeting here is a link for information: https://sboh.wa.gov/Portals/7/Doc/Meetings/2020/11-09/WSBOH-Agenda-2020-11-09-Final-Updated.a.pdf?ver=2020-11-05-123032-583
Here is a link to the proposed timeline for this rule as of November 17th. The board is in the update phase, and it is expected there will be a CR-102 document filed for the proposed final rule.
When the Department of Health makes a copy of the proposed final draft available to the public for review and comment the link to the rule language will be published here.
Article Photo by Luisa Peter on Unsplash
November 6, 2020