Is there still a Mississippi moratorium on permits for new or expanded swine concentrated animal feeding operations?
Plain-English summary
Mississippi Commissioner of Agriculture Andy Gipson asked the Attorney General whether a 1998 statute, Miss. Code Ann. § 49-17-29(3)(f), still imposes a moratorium on permits for swine concentrated animal feeding operations (CAFOs). The AG concluded that it does not.
The 1998 amendment, passed as Senate Bill 2895, did create a moratorium, but it was a brief, time-limited one. The statute prohibited the Permit Board from issuing new or expansion permits for swine CAFOs between February 28, 1998 and January 1, 2000, with a narrow exception for facilities using "innovative" waste management. Once the year 2000 deadline passed, that part of the statute became spent. The AG read the statute's plain language as unambiguous and concluded no current moratorium exists.
Two related restrictions from the same 1998 bill are still in force, however: under § 49-17-29(1)(b) and (2)(b), counties retain the authority to regulate swine CAFOs through county ordinances in effect on the bill's effective date, and the Permit Board cannot exempt swine operations from those county rules.
Currency note
This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
The 1998 Mississippi Legislature passed Senate Bill 2895 in response to public concern about large swine operations expanding in the state. The bill did three things at once. First, it amended § 49-17-29(1)(b) (air permits) and § 49-17-29(2)(b) (water permits) to ensure that swine CAFOs could not be exempted from county-level regulations and ordinances already in force when the bill became effective. Second, it added a new subsection, § 49-17-29(3)(f), creating an outright moratorium on new and expansion permits running from February 28, 1998 through January 1, 2000. Third, the moratorium subsection contained a narrow carve-out: the Permit Board could issue up to five permits during the moratorium for operations using "innovative" animal waste management approved by the Board.
Twenty-two years later, the question reached the AG's desk: is the moratorium piece still operative? The AG applied the standard Mississippi rule that "language used in a statute will be given its ordinary and usual meaning" and that interpretive canons only apply when statutory language is ambiguous (citing Entrican v. King, R. Brent Forman v. Carter, and State v. Heard, all decisions of the Mississippi Supreme Court). The plain text of § 49-17-29(3)(f) bounds the moratorium with a specific end date of January 1, 2000. The AG concluded that the moratorium terminated on its own terms.
The county-regulation safeguards in subsections (1)(b) and (2)(b) are written without sunset language and continue to govern the relationship between state and county authority over swine CAFOs.
Common questions
Q: Does this opinion mean Mississippi has no restrictions on swine CAFOs?
A: No. The opinion only addresses one specific subsection. County boards of supervisors retain authority to adopt ordinances regulating swine CAFOs, and the Mississippi Department of Environmental Quality still administers the underlying air and water permitting programs under § 49-17-29(1)(b) and (2)(b). What the opinion confirms is that the time-limited statewide moratorium on new permit issuance is no longer in effect.
Q: Why did the legislature build a moratorium with a built-in expiration date?
A: The opinion does not explain the legislative purpose, but the structure is consistent with a "study moratorium," giving regulators time to develop standards before resuming issuance. The five-permit innovative-technology carve-out also suggests the legislature wanted to preserve a path for cleaner facilities even during the freeze.
Q: Can a county still regulate swine operations?
A: Yes. The 1998 amendments to § 49-17-29(1)(b) and (2)(b) were designed precisely to preserve county-level authority over swine CAFOs and prevent state permits from overriding county ordinances. Those provisions remain in force.
Q: What about federal Clean Water Act CAFO rules?
A: This opinion is limited to Mississippi state law. Federal CAFO regulations under the Clean Water Act apply independently and were not addressed.
Citations and references
Statutes:
- Miss. Code Ann. § 49-17-29 (Air and water pollution permits)
- Miss. Code Ann. § 1-3-65 (Words used in their ordinary meaning)
- Senate Bill 2895 (1998 Regular Session)
Cases:
- Entrican v. King, 289 So. 2d 913 (Miss. 1974), ordinary-meaning rule for statutory language
- R. Brent Forman v. Carter, 269 So. 2d 865 (Miss. 1972), ambiguity must exist before resort to interpretive canons
- State v. Heard, 151 So. 2d 417 (Miss. 1963), same
Source
- Index page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/A.Gipson_June-5-2020-Interpretation-of-Miss.-Code-Ann.-Section-49-17-293f.pdf
Original opinion text
June 5, 2020
Honorable Andy Gipson
Commissioner of Agriculture and Commerce
Post Office Box 1609
Jackson, Mississippi 39215-1609
Re: Interpretation of Miss. Code Ann. Section 49-17-29(3)(f)
Dear Commissioner Gipson:
The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.
Question Presented
Does Miss. Code Ann. Section 49-17-29(3)(f) currently impose a moratorium upon the issuance of permits for new swine concentrated animal feeding operations or the expansion of existing swine concentrated animal feeding operations?
Brief Response
There is no present moratorium imposed by Section 49-17-29(3)(f) upon the issuance of permits for new swine concentrated feeding operations or the expansion of existing swine animal feeding operations.
Applicable Law and Discussion
During the 1998 Regular Session, the Mississippi Legislature amended Sections 49-17-29(1)(b) and 49-17-29(2)(b) to prohibit the exemption of new or existing applications related to swine concentrated animal feeding operations from county regulations and ordinances in effect as of the effective date of said amendment. Senate Bill 2895 also added Section 49-17-29(3)(f), which imposed a brief moratorium upon the issuance of any permit for a new swine concentrated animal feeding operation or expansion of an existing swine concentrated animal feeding operation before January 1, 2000, unless an application for that operation's new or modified permit was submitted prior to February 28, 1998.
Senate Bill 2895 provided, in relevant part:
Section 49-17-29. (1)(b) It is unlawful for any person to build, erect, alter, replace, use or operate any equipment which will cause the issuance of air contaminants unless that person holds a permit from the Permit Board (except repairs or maintenance of equipment for which a permit has been previously issued), or unless that person is exempted from holding a permit by a regulation promulgated by the commission. Concentrated animal feeding operations may be a source or a category of sources exempted under this paragraph. However, no new or existing applications relating to swine concentrated animal feeding operations within a county shall be exempted from regulations and ordinances which have been duly passed by the county's board of supervisors and which are in force on the effective date of this act.
(2)(b) It is unlawful for any person to carry on any of the following activities, unless that person holds a current permit for that activity from the Permit Board as may be required for the disposal of all wastes which are or may be discharged into the waters of the state, or unless that person is exempted from holding a permit by a regulation promulgated by the commission: (i) the construction, installation, modification or operation of any disposal system or part thereof or any extension or addition thereto, including, but not limited to, systems serving agricultural operations; (ii) the increase in volume or strength of any wastes in excess of the permissive discharges specified under any existing permit; (iii) the construction, installation or operation of any industrial, commercial or other establishment, including irrigation projects or any extension or modification thereof or addition thereto, the operation of which would cause an increase in the discharge of wastes into the waters of the state or would otherwise alter the physical, chemical or biological properties of any waters of the state in any manner not already lawfully authorized; (iv) the construction or use of any new outlet for the discharge of any wastes into the waters of the state. However, no new or existing applications relating to swine concentrated animal feeding operations within a county shall be exempted from regulations and ordinances which have been duly passed by the county's board of supervisors and which are in force on the effective date of this act.
These amendments remain a part of Section 49-17-29, which provides, in relevant part, as follows:
(1)(b) It is unlawful for any person to build, erect, alter, replace, use or operate any equipment which will cause the issuance of air contaminants unless that person holds a permit from the Permit Board (except repairs or maintenance of equipment for which a permit has been previously issued), or unless that person is exempted from holding a permit by a regulation promulgated by the commission. Concentrated animal feeding operations may be a source or a category of sources exempted under this paragraph. However, no new or existing applications relating to swine concentrated animal feeding operations within a county shall be exempted from regulations and ordinances which have been duly passed by the county's board of supervisors and which are in force on June 1, 1998.
(3)(f) The Permit Board shall not issue any permit for a new swine concentrated animal feeding operation or the expansion of an existing swine concentrated animal feeding operation before January 1, 2000, unless the department received the application for that operation's new or modified permit before February 28, 1998, or except as provided in this paragraph (f). In issuing or modifying any permit for which the department received an application before February 28, 1998, the Permit Board shall apply those siting criteria adopted or used by the commission before February 28, 1998, unless federal law or regulations require more stringent criteria. The moratorium established in this paragraph shall not apply to the issuance of any permit for a new swine concentrated animal feeding operation or the expansion of an existing swine concentrated animal feeding operation that uses an animal waste management system which the applicant demonstrates to the Permit Board is innovative in significantly reducing the effects of the operation on the public health, welfare or the environment and which is approved by the Permit Board. The Permit Board shall not issue or modify more than five (5) permits under this innovative animal waste management system technology exemption to the moratorium.
Language used in a statute will be given its ordinary and usual meaning, if possible. Entrican v. King, 289 So. 2d 913, 917 (Miss. 1974); see also, MS AG Op., Walters (February 14, 1984); Miss. Code Ann. Section 1-3-65 (all words and phrases contained in the statutes are used according to their common and ordinary acceptation and meaning). The Supreme Court has concluded that "[i]t is a well-recognized principle of law . . . that ambiguity must exist in the language used by the legislature in a statute before resort will be had to any rules of statutory construction or interpretation." R. Brent Forman et al. v. James W. Carter et al., 269 So. 2d 865 (Miss. 1972); State v. Heard, 151 So. 2d. 417, 420 (Miss. 1963); see also, MS AG Op., Mosley (October 23, 2015); MS AG Op., Lanoux (October 23, 2015); MS AG Op., Bennett (December 2, 2003); MS AG Op., Hoffman (November 1, 1982).
It is our opinion that the provisions of Section 49-17-29(3)(f) are clear and unambiguous. The plain language of this statute indicated an intent on the part of the Legislature, at the time of the 1998 amendments, to impose a moratorium upon the issuance of permits for new, or an expansion of existing, swine concentrated animal feeding operations until January 1, 2000, unless an application had already been submitted before February 28, 1998. The statute thus prohibited the issuance of permits submitted between the dates of February 28, 1998 and January 1, 2000, subject, however, to the exemption for the issuance of up to five (5) permits for new, or an expansion of existing, swine concentrated animal feeding operations, which used an innovative animal waste management system.
It is, therefore, the opinion of this office that no moratorium presently exists upon the issuance of permits for new swine concentrated animal feeding operations or the expansion of existing swine concentrated animal feeding operations.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Kim Turner
Kim Turner
Assistant Attorney General