Oregon farm regulators have decided against waiving Confined Animal Feeding Operation permits for dairies that only produce milk for personal consumption.

Earlier this year, the state’s Department of Agriculture started an outreach program aimed at about 100 small raw milk producers who fall under CAFO regulations but lack permits.

The outreach is meant to improve compliance with CAFO rules, which guard against water pollution, but the agency offered a waiver for single-family farms that consumed all of their dairy products on-site.

Wym Matthews, ODA’s CAFO program manager, said the agency has scrapped that waiver because it doesn’t square with the intent of CAFO regulations.

“The permits focus on environmental protection,” he said.

The waiver was eliminated based on criticisms that it’s irrelevant to water quality whether farms sell milk or consume it themselves, he said.

“We can’t use that as a decision point,” Matthews said.

The Institute for Justice, a nonprofit that opposes government overreach, has complained about the “constitutional infirmities” of disparate CAFO enforcement but believes withdrawing the waiver is the wrong solution.

“It replaces one form of unfairness with another,” said Ari Bargil, an attorney with the group. “The state has in some ways doubled down on a bad policy by applying it to everyone, even those who don’t need it.”

The nonprofit pursues litigation against regulations that are disconnected from legitimate governmental purposes, such as ensuring public health and environmental safety, Bargil said.

The state’s CAFO policy for raw milk dairies lacks such reasonable underpinnings, which seems to fit the bill, he said.

“It seems like a very heavy-handed approach to take, especially in regard to small farms,” Bargil said. “All options are on the table.”

The ODA has said it’s applying the permit regulations even-handedly, intending to avoid an “un-level playing field” among dairies.

Under state rules, livestock and poultry operations qualify as CAFOs if they confine animals, or discharge into waterways, or rely on wet systems for waste treatment.

“You only need one of those factors to require a permit,” Matthews said.

However, backyard chicken flocks and similar operations with dry waste treatment methods aren’t required to obtain permits, he said.

The agency has permitted two additional dairies so far in its yearlong outreach program, during which it’s not issuing penalties to focus on voluntary compliance.

The outreach program was spurred by the conventional dairy industry’s concerns that raw milk producers could “enjoy an unfair competitive advantage” by skirting CAFO rules, with potential environmental and public health impacts, according to ODA program documents.

Raw milk producers don’t have to obtain state dairy licenses as long as they own no more than nine sheep or goats or two producing dairy cows, but this exemption doesn’t apply to CAFO permits.

Some dairy producers have improperly conflated the dairy licensing and CAFO permitting requirements, which the outreach program wants to correct, according to ODA.

Critics of the new approach believe the agency’s focus has been misplaced and worry it’s improperly relying on CAFO regulations to target raw milk producers.

“We disagree with the Department of Agriculture doing things at the request of the dairy industry, to reduce their competition,” said Alice Morrison, co-director of Friends of Family Farmers, an advocacy group for small-scale farmers.

The agency has no shortage of other projects, such as implementing recent legislation that overhauled regulations for large CAFOS, Morrison said.

“They have enough going on,” she said. “Going after small producers doesn’t fit the mission of the Oregon Department of Agriculture.”

While Morrison said she understands why the agency withdrew the CAFO waiver, it’s absurd that permit requirements are broad enough to potentially encompass a child’s 4-H dairy project.

“A two-cow dairy should not be in the same program as a 5,000-cow dairy,” she said. “It makes no sense to apply the same standards to those two things.”