State Bar of Wisconsin

Publishedby the Environmental Law Section of the State Bar of Wisconsin - May 2006

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• Comments from the Chair
• Concentrated Animal Feeding Operations: Update on the Status of Revisions to NR 243 and EPA's New CAFO Rule
• Concentrated Animal Feeding Operations: Regulation of Air Emissions
• Livestock Siting Rules - ATCP 51

Comments from the Chair

By Michael D. Flanagan, Foley & Lardner LLP, Environmental Law Section Chair

This edition of the Environmental Law News provides an update on environmental regulations applicable to Concentrated Animal Feeding Operations ("CAFOs") and livestock operations in Wisconsin.

The first article, by Andrew Hanson of Midwest Environmental Associates, Inc., addresses the regulation of waste and stormwater emissions from CAFOs, and provides an update on EPA's new CAFO rule and WDNR's proposed revisions to NR 243.

The second article, by Katherine Lazarski of Foley & Lardner LLP, provides an overview of federal and state regulation of air emissions from CAFOs.

The final article, by Russell Wilson of Ruder Ware, summarizes new Wisconsin rules governing siting and expanding livestock operations.

The distribution of Russ Wilson's excellent article in this newsletter provides me with an opportunity to publicly acknowledge and thank Russ (our Section's immediate past chair) for all of his past and ongoing contributions to the Environmental Law Section.

We are proud to distribute this issue, and are very grateful for the efforts of Andrew Hanson, Katherine Lazarski and Russell Wilson.

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Concentrated Animal Feeding Operations: Update on the Status of Revisions to NR 243 and EPA's New CAFO Rule

By Andrew Hanson, Midwest Environmental Associates, Inc.

Introduction

The Wisconsin Department of Natural Resources ("DNR") is proposing changes to its water quality regulations and permit requirements for Concentrated Animal Feeding Operations ("CAFOs").¹ The changes are being proposed primarily in response to the U.S. Environmental Protection Agency's final National Pollutant Discharge Elimination System ("NPDES") permit regulations for CAFOs under the Clean Water Act.² The DNR expects that the Natural Resources Board will take up the rule revisions at its April 25-26, 2006 Board Meeting in Stevens Point, Wisconsin.

Although one would think the DNR's effort to align its rules with that of the EPA's as a relatively straightforward undertaking, Wisconsin's unique geography and landscape combined with recent legal precedent have somewhat complicated matters.

Wisconsin's 140 CAFOs comprise only a fraction of the 16,000 livestock farms in Wisconsin, but generate approximately 11% of the manure in the state.³ As a result, Wisconsin is fast entering the world of consolidated production agriculture already established in so-called dairy states like California and New Mexico. This transition in agriculture is happening with a great deal of controversy in Wisconsin, however, as rural public health advocates and environmentalists object to the growing number of manure-related well contaminations, fishkills, and other manure spills,⁴ while advocates for production agriculture maintain that the transition is necessary to maintain Wisconsin's competitiveness in the national agricultural economy.⁵

This article describes the issues created by EPA's new NPDES permitting rule for CAFOs and recent legal precedent both sustaining and striking down portions of those rules. Within that context, this article provides an update on the status of DNR's effort to update its own rules in response.

Specifically, there are five key features of the EPA's final regulations and DNR's proposal that environmental and agricultural practitioners should keep a close eye on as the process moves forward.

1. Duty to Apply for a NPDES Permit

The Clean Water Act prohibits the discharge of a pollutant from a "point source" to a navigable water without, and except in compliance with, a NPDES permit.⁶ While the Clean Water Act defines a range of objects, structures, and man-made land formations as "point sources," it specifically includes "Concentrated Animal Feeding Operation" or "CAFO" within the definition of that term.⁷ With its most recent rulemaking, the EPA has defined different classes of CAFOs, including Large CAFOs, Medium CAFOs, and Small CAFOs.

A Large CAFO is any animal feeding operation that houses or confines more than 700 mature daily cows, 1,000 veal calves, 2,500 swine more than 55 lbs., and so forth.⁸ The specific list of animal types and their thresholds can be found in 40 C.F.R. § 122.23(b)(4). A medium CAFO is any animal feeding operation that houses between 200 and 699 mature dairy cows, 300 to 999 veal calves, and so forth.⁹ A Medium CAFO must only apply if it discharges pollutants through a ditch or flushing system to waters, or it discharges pollutants directly into waters that pass over or through the facility.¹⁰ Small CAFOs are those not defined as a Large CAFO or a Medium CAFO.¹¹

Under EPA's rules, any animal feeding operation defined as a CAFO is required to apply for a NPDES permit unless it can establish that it has "no potential to discharge" pollutants to navigable waters.¹²

On February 28, 2005, more than two years after EPA promulgated its rule, the Second Circuit Court of Appeals struck down EPA's "no potential to discharge" exemption, holding that the Clean Water Act regulates only "actual discharges," not "potential discharges" of pollutants.¹³ As a result, the Second Circuit held that CAFOs do not have a duty to apply for NPDES permits unless there are actual discharges of pollutants from the CAFO.¹⁴

Significantly, the Second Circuit noted that EPA had not argued that the administrative record supported a regulatory presumption that all Large CAFOs actually discharge.¹⁵ This could be taken as a rather transparent hint to EPA that such an argument might be appropriate for a subsequent rulemaking in response to the Second Circuit's decision.

If the Second Circuit was offering a hint, the Wisconsin DNR picked up on it. The DNR responded to the Second Circuit's Waterkeeper decision in its proposed revisions to NR 243 by asserting that

based on the extent of waters of the state (surface waters, groundwater and wetlands) in Wisconsin, it is Department's position that all large CAFOs that land apply manure or process wastewater in the state have discharges of manure or process wastewater pollutants that reach waters of the state via leaching or surface runoff. Therefore, any large CAFO must apply for a WPDES permit.¹⁶

In short, DNR appears to take the approach that the Second Circuit hinted the EPA should have taken in its own rulemaking in seeking to impose the duty to apply on all CAFOs. In the meantime, it is not yet clear how EPA will respond to the Second Circuit's decision in Waterkeeper v. EPA.

2. Single Animal Type Threshold

Related to the "Duty to Apply" question, the EPA has changed the way in which it calculates the threshold number of animals that trigger the duty. Previously, EPA defined a CAFO based on the number of "animal units" the CAFO housed and confined.

An animal unit is an equivalency factor based on amount of waste an animal produces. For example, one mature dairy cow equals 1.4 animal units, while a beef cow equals just one animal unit, and while a dairy calf equals 0.2 animal units. Under the mixed animal unit method, if all of the animals of different types confined at an animal feeding operation exceeded 1,000 animal units or more, the animal feeding operation would be defined as a CAFO.

With its most recent rulemaking, EPA switched to a "single animal type" method of calculating NPDES permitting thresholds, reasoning that using single animal types is less confusing and makes it easier to determine which operations are regulated.¹⁷ The single animal unit calculation is significant because it does just that: it only looks at one animal type at a CAFO, despite all animal types, cumulatively, might exceed the 1,000 animal unit threshold.

This approach produces a strange result, and one that is not particularly reflective of Wisconsin's more diverse agricultural economy. For example, under EPA's new rule a dairy operation with 600 mature milking cows and 900 heifers would not be regulated as a CAFO, even though it produces more waste than a 1,000 animal unit operation.¹⁸ In other words, for many livestock sectors, including dairy, the EPA's new rules have raised the permitting threshold to exempt some operations from the duty to apply on the assumption that Wisconsin livestock operations only confine one type of animal.

The DNR responded to the EPA's rulemaking by proposing to retain the mixed animal unit calculation method. The DNR argued:

[M]any Wisconsin operations continue to have mixed ages and types of animals. Without the mixed animal unit calculation, approximately 20% of the current number permitted CAFOs could potentially no longer require coverage under a WPDES permit. ¹⁹

The DNR also reasoned that it has been using the mixed animal unit calculation since the inception of the CAFO WPDES permit program in 1984 with little or no confusion.

In January of 2006, State Senator Dan Kapanke (R-Lacrosse) introduced a bill, SB 504, that would have required DNR to use the EPA's single animal type calculation method. After objections from the DNR and environmental and public health advocates that the bill would exempt current CAFOs in Wisconsin from the duty to comply with WPDES permit requirements, the bill has stalled in the Senate Committee on Agriculture and Financial Institutions. Specifically, the DNR objected that the bill would have exempted up to 16% of currently regulated CAFOs from the WPDES permit program.

The DNR has since indicated that it will likely retain the mixed animal unit calculation, while also using EPA's single animal type calculation. If the animals confined at an animal feeding operation exceed either threshold, then the duty to apply would be triggered.

3. Agricultural Stormwater Exemption

For better or worse (depending on whom you ask), one of the more imposing features of the 1987 Amendments to the Clean Water Act is Congress' creation of the agricultural stormwater exemption from the NPDES permit program.²⁰

EPA's new CAFO NPDES rules brought to life the agricultural stormwater exemption by exempting some manure discharges from the scope of the NPDES permit program. Specifically, EPA determined that when manure or process wastewater is land applied in compliance with "site specific nutrient management practices," a precipitation-related discharge of manure or process wastewater falls within the "agricultural stormwater exemption."²¹ The EPA has not defined what constitutes a "precipitation-related discharge of manure."

Environmental groups challenged the scope of the exemption as defined by EPA in Waterkeeper, and the Second Circuit recognized the tension between Congress' definition of CAFOs as point sources and its exemption of agricultural stormwater from the definition of point source.²² Finding the statute ambiguous, the Second Circuit ultimately upheld EPA's rule on this point as reasonable.²³

The DNR responded to EPA's rules by including the agricultural stormwater discharge exemption within its proposed revisions to NR 243.²⁴ For the exemption to apply, the CAFO must have applied manure in compliance with the terms of a DNR approved nutrient management plan and state technical standards.²⁵ The DNR is in the process of defining when the agricultural stormwater exemption will apply based on those technical standards.

4. Winter Manure Spreading Prohibitions and Restrictions

Perhaps some of the most significant revisions to the DNR proposed CAFO permitting regulations come in the form of new restrictions and prohibitions on applying liquid and solid manure on frozen or snow covered ground. The DNR has recognized that frozen and snow covered ground manure spreading creates the highest risk of runoff.²⁶

The DNR's rationale for proposing the restrictions is mainly twofold: 1) there has been a dramatic increase in the number of manure spills, fishkills, and well contaminations caused by manure over the past several years in Wisconsin as the result of spreading liquid manure on frozen and snow-covered ground,²⁷ and 2) the EPA has authorized states to impose restrictions on frozen or snow covered ground to minimize the risk of runoff.²⁸ On this latter point, the DNR has proposed to do a combination of both banning liquid manure spreading under some conditions, and imposing a series of restrictions to minimize runoff in others.

Most notably, the DNR has proposed to ban all liquid manure spreading without incorporation into the soil during February and March, starting on January 1, 2010.²⁹ Further, liquid manure may not be applied at other times on frozen ground unless there is an emergency or unless the manure can be incorporated or injected into the soil.³⁰ Finally, liquid manure may not be applied where there is more than 4 inches of snow on the ground.³¹

The DNR has also proposed more stringent separation distances to groundwater for manure application areas. For example, manure may not be spread within 100 feet of a karst feature or a private well, or on fields where snow is actively melting such that water is flowing off of the field.³² Manure may also not be applied on frozen ground or where snow is present on fields with soils that are less than 60 inches thick.³³

CAFO owners and operators have expressed concern that the "February to March" ban on liquid manure applications increases the risk of liquid manure spills and well contaminations in April, when the liquid manure is more likely to be applied under the DNR's proposal. Meanwhile, environmentalists and rural public health advocates urge that the restrictions are necessary to prevent manure spills and well contaminations during the time of year when they most often occur - during February and March.³⁴ The issue is yet to be resolved, and will likely be addressed by both the Natural Resources Board the Wisconsin legislature as the DNR's proposal moves forward.

5. Mandatory Manure Storage

EPA's CAFO rule requires that CAFOs have nutrient management plans that "ensure adequate storage of manure,"³⁵ but unfortunately EPA has not specified what capacity of storage is "adequate" other than to offer some limited guidance on the issue.³⁶ Basically, adequate storage is that which prevent overflows from the storage facility and strikes a balance between the capacity to store manure, including runoff and precipitation, and the ability to safely land apply the manure under appropriate weather conditions and with a sufficient land base to absorb the nutrients under an approved nutrient management plan.³⁷

As part of its proposal to restrict manure applications on frozen and snow-covered ground, the DNR has proposed to require Large CAFOs to have at least 6 months worth of manure storage by January 1, 2010.³⁸ Simply put, if the DNR is going to prohibit liquid and solid manure applications under some conditions, then a CAFO must have the capacity to store manure in the meantime. The DNR estimates that somewhere between 50-70% of CAFOs in Wisconsin already have 6 months of manure storage.³⁹

Conclusion

The DNR's proposed revisions to its CAFO rules are expected to bring big and sometimes modest changes for both rural environmental advocates and the Large CAFOs themselves. The DNR is currently responding to comments and preparing changes to the rule before it is presented to the Natural Resources Board at its April 25-26, 2006 meeting. Environmental and agricultural practitioners may want to follow the process and stay involved.

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Concentrated Animal Feeding Operations: Regulation of Air Emissions

By Katherine E. Lazarski, Foley & Lardner LLP

Concentrated Animal Feeding Operations ("CAFOs" or "AFOs") emit ammonia, hydrogen sulfide, particulate matter and volatile organic compounds at levels which, particularly for large operations, likely exceed regulatory thresholds including major source status under the Clean Air Act and reportable quantities under CERCLA and EPCRA. Yet many AFOs do not have Clean Air Act permits nor have ever reported releases of hazardous substances under section 103 of CERCLA or section 304 of EPCRA. Neither the Clean Air Act nor CERCLA nor EPCRA exempt agricultural operations from compliance, yet a review of case law and available enforcement information indicates that very few AFOs have been prosecuted under these laws.

One reason that regulation of air emissions from AFOs has lagged behind regulation of waste and stormwater emissions is because of the real or perceived difficulty in accurately estimating emissions from AFO facilities. For example, most Clean Air Act permitting obligations are triggered by "major source" status, meaning that a facility emits more than 100 tons per year of a criteria pollutant. The criteria pollutant most likely to trigger major source status for an AFO is particulate matter, but without a mechanism for measuring emissions, facilities do not know whether they trigger that threshold. The United States Environmental Protection Agency ("U.S. EPA") is currently attempting to remedy this problem through a voluntary Consent Agreement with over 2,600 AFOs that will result in a two year study of AFO emissions and, ultimately, regulations setting forth a required methodology for these sources to estimate their emissions.

Wisconsin does not have any statutes or regulations specific to air emissions from AFOs, although AFO facilities are not exempt from general laws applicable to all air pollution sources. In addition, the common law of nuisance, another mechanism for regulating air emissions, has been limited in Wisconsin when applied to agricultural sources.

1. Federal Law

Three federal laws apply to air emissions from AFOs. First, section 103 of CERCLA and section 304 of EPCRA require immediate reporting to the National Response Center and the Local Emergency Planning Committee of any releases of hazardous substances in excess of the reportable quantities established by U.S. EPA.⁴⁰ Both ammonia and hydrogen sulfide are hazardous substances and the reportable quantity ("RQ") for both has been established at 100 pounds per day.⁴¹

Significantly more burdensome, the federal Clean Air Act applies to AFOs.⁴² The Clean Air Act applies to all "stationary sources," broadly defined as "any source of air pollution except those emissions resulting directly from an internal combustion engine for transportation purposes or from a nonroad engine or nonroad vehicle as defined in section 7550 of this title."⁴³ The term "air pollutant" is also broadly defined, and includes "any agent…, substance or matter which is emitted or otherwise enters the ambient air."⁴⁴ The definition of air pollutant also includes "precursors to the formation of any air pollutant." Particulate matter and ozone are considered "criteria pollutants" under the Clean Air Act, and any source which emits more than threshold amounts of either of these pollutants (typically 100 tons per year) is considered a "major source" and is required to obtain a permit under Title V of the Clean Air Act. Volatile Organic Compounds ("VOC"s) are considered precursors to ozone and a facility that emits more than threshold amounts of VOCs is also considered a major source.⁴⁵ Major sources are also subject to New Source Review/Prevention of Significant Deterioration permitting for the construction of new sources and major modifications to existing sources.⁴⁶

In September 2001, the U.S. EPA and the United States Department of Agriculture ("USDA") jointly commissioned the National Academy of Sciences to prepare a report on emissions from AFOs. The report was published in 2003 and concluded that existing emissions information from AFOs is insufficient. The report recommended that U.S. EPA establish "scientifically sound and practical protocols" for measuring air concentrations and emission rates.⁴⁷ U.S. EPA responded to this recommendation by negotiating a voluntary Consent Agreement and Final Order with stakeholders from industry groups, state officials, and environmental groups.⁴⁸ The Consent Agreement and Final Order ("Agreement") was made available on January 31, 2005 and parties were allowed to sign up for the Agreement until August 12, 2005. During that period, 2,681 AFOs signed on to the Agreement, representing 6,700 farms in 42 states.

The Agreement alleges that respondents have violated provisions of the Clean Air Act, EPCRA and CERCLA, and provides for the payment of a civil penalty.⁴⁹ The Agreement does not require any admission of liability. In addition, respondents are required to fund and possibly participate in a two year study of emissions from AFOs. When the study is concluded, U.S. EPA expects to take 18 months to develop an emissions estimating methodology. Once that methodology has been established, respondents have 120 days to estimate emissions from their AFOs and to submit all required Clean Air Act permit applications. Major sources in attainment areas will be required to install best available control technology ("BACT") and major sources in nonattainment areas will be required to install technology achieving the lowest achievable emission rate ("LAER"). In exchange, U.S. EPA covenants not to sue AFOs under the Clean Air Act, section 103 of CERCLA, and section 304 of EPCRA.

Each respondent is required to pay the lesser of $2,500 per farm or a pro rata share of the amount needed to fund the emissions study.⁵⁰ The Agreement then provides for the creation of a nonprofit umbrella agency to collect and hold the contributions from respondents to purchase and own research equipment, and to contract with an Independent Monitoring Contractor ("IMC") to perform the study. The data generated by the study will be provided to the U.S. EPA and, according to the Agreement, will be fully available to the public. Respondents are required to make their farms available to the IMC (unless the farms are owned by contract growers), although it is not anticipated that each farm will be selected for the study. When the study is complete, U.S. EPA will use the data to promulgate an emissions estimating methodology through notice and comment rulemaking procedures.⁵¹

Upon completion of the monitoring study and promulgation of an emissions estimating methodology, sources will be required to estimate their emissions and either apply for Clean Air Act permits or certify that they do not trigger the need for a permit. Major sources (in excess of 100 tons per year of particulate matter or volatile organic compounds) will also be required to install either BACT or LAER. One significant unknown at this point is what will constitute BACT or LAER for AFOs. U.S. EPA has indicated that it will issue guidance in the future that will specify conditions that constitute the same class or category of farm (helpful information in making BACT/LAER determinations) and that it will work with USDA to determine the "most effective BACT and LAER for the least cost."⁵²

In addition, under the Agreement, AFOs pay a civil penalty ranging between $200 and $100,000 dollars. The amount of the civil penalty depends on the number and size of farms owned by each AFO. For example, each AFO pays $500 per farm and $1000 per farm housing ten times the total number of animals under the definition of a "large" CAFO. The Agreement also contains caps for AFOs owning multiple farms - for example, an AFO owning between 1 and 10 farms will not pay more than $10,000, while an AFO owning over 200 farms will not pay more than $100,000.

The covenant not to sue lasts through the monitoring program and the time allowed for facilities to submit permit applications or otherwise certify compliance. The covenant does not cover new or modified facilities which may trigger the need to get a New Source Review or Prevention of Significant Deterioration permit during the monitoring study, and U.S. EPA reserves the right to bring enforcement actions for "substantial and imminent" endangerment to health or the environment. Moreover, the covenant becomes void if an AFO refuses to comply with state nuisance orders relating to air emissions. State agencies are not signatories to the Agreement, are not subject to the covenant not to sue, and may continue to prosecute enforcement actions under State environmental laws.⁵³ Furthermore, private citizens may also bring lawsuits under the citizen suit provisions of the Clean Air Act.⁵⁴

The sign-up period for the Agreement closed on August 12, 2005 with over 2,600 AFOs agreeing to participate. However, each of the individual Agreements must be approved by the Environmental Appeals Board ("EAB") before becoming effective. The first 20 Agreements were approved by the EAB on January 27, 2006, and an additional 702 Agreements were approved on April 17, 2006.

It is worth noting that the Agreement is not without controversy. Four environmental groups filed a lawsuit in the D.C. Circuit Court of Appeals on May 26, 2005 challenging the Agreement.⁵⁵ The environmental groups allege that EPA already has the legal authority it needs to quantify emissions from AFOs and the Agreement gives AFOs unnecessary immunity from compliance for at least the next two years.⁵⁶ U.S. EPA has responded to these concerns by explaining its belief that the Agreement is the most efficient way to compel compliance with the Clean Air Act, EPCRA and CERCLA. U.S. EPA contends that use of its enforcement authority to compel monitoring and compliance would take just as long to result in compliance while litigation by AFOs could significantly delay development of information on emissions from AFOs.⁵⁷ If the D.C. Circuit does vacate the Agreement, respondents would lose the protections from the covenants not to sue and it is likely that such action would further delay promulgation of emissions estimating methodologies.

For facilities that have not signed onto the Agreement, prosecution by U.S. EPA is possible while the activities required by the Agreement are on-going. AFOs in this category should proceed to measure or estimate their emissions using existing methodologies and should apply for any required permits.

2. Wisconsin Law

Wisconsin incorporates the federal Clean Air Act requirements, and also requires construction and operating permits for minor stationary sources unless exempt by regulation. Wis. Stat. § 285.60(2). Wisconsin has not promulgated any specific exemptions from permitting for agricultural operations, and therefore AFOs, as stationary sources, are required to obtain permits from the Wisconsin Department of Natural Resources if they are above the "general exemption" threshold for any regulated pollutant (5.7 pounds per hour for particulate matter and VOCs).⁵⁸

In addition, air emissions from AFOs in Wisconsin may also be regulated by private nuisance actions, however such claims are limited by statute. In 1982, the Wisconsin legislature enacted the Right to Farm Law, which legislatively superseded Wisconsin's common law of nuisance for actions against agricultural uses.⁵⁹ The statute protects agricultural uses and practices by raising the standard for finding that an agricultural use or practice is a nuisance, ⁶⁰ by limiting available relief,⁶¹ and by providing successful defendants with the ability to recover litigation costs.⁶² Some commentators have speculated that the result of this triad of difficulty - an elevated standard, limited relief, and potential cost recovery if you lose - may deter claimants from filing actions.⁶³ In fact, a review of case law since the enactment of this statute does not identify any cases that have been decided under the elevated standard established by the Right to Farm Law.⁶⁴

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Livestock Siting Rules - ATCP 51

By Russell W. Wilson, Ruder Ware

Background

Livestock operations are poised to expand now that Wis. Admin. Code § ATCP 51 will take effect after a long and highly visible rule-making process. Livestock operators have faced contentious and expensive local zoning and judicial review proceedings with unpredictable results that varied from locality to locality. Rep. David Ward, R-Jefferson, whose own family farm encountered opposition to expansion, introduced the bill that has led to the new rules.

On April 13, 2004, Governor Doyle signed 2003 Wisconsin Act 235, which is codified at Wisconsin Statute § 93.90. The statute directs the Department of Agriculture, Trade and Consumer Protection ("DATCP") to promulgate rules specifying standards for siting and expanding livestock operations taking into account the following factors⁶⁵:

• Protective of public health or safety;
• Practical and workable;
• Cost effective;
• Based upon peer-reviewed science;
• Designed to promote the growth and viability of Wisconsin animal agriculture;
• Designed to balance the economic viability of farm operations with protecting natural resources and other community interests; and
• Usable by officials of political subdivisions.

DATCP commissioned both an advisory committee, chaired by former DATCP secretary, Gary Rohde, and a technical committee to develop the draft rules, which first appeared in January 2005. Stakeholders (livestock operators and associations, cooperatives, lenders, environmental and public interest groups, and municipalities) participated in record numbers at public hearings held across the state in March 2005. DATCP incorporated changes to the January draft as a result of comments received at the public hearings and in written submittals.

In September 2005, the DATCP board approved the revised draft and sent it back to the Assembly and Senate agriculture committees, where the rules package met with stiff opposition. Both committees directed DATCP to modify the proposed rules so as to be more favorable to the livestock industry. DATCP did so and the DATCP board approved the additional revised rules package on February 8, 2006, and returned them once again to the legislature, which approved the rules on February 23. The new rules took effect for all but "small businesses" on May 1, 2006. "Small business" means a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000. The effective date for small businesses in July 1, 2006.

1. Who Is Covered

ATCP 51 applies to traditional livestock operations: dairy and beef cattle, swine, poultry, sheep, and goats. The rules do not apply to horses, bison, llama, ostrich, emu, deer, or mink farms.⁶⁶ In order for ATCP 51 to apply, a new or expanded livestock facility must have 500 or more "animal units."⁶⁷ A lower animal unit threshold applies only where such figure was properly adopted under a local zoning code prior to July 19, 2003.⁶⁸

Animal units are counted based upon the maximum number of animals that may be kept on 90 or more consecutive days during any 12-month period.⁶⁹ Manure from the various species is equalized into "animal units." For example, manure from a 400-800# heifer equates to 0.6 animal units ("a.u."), whereas that of a dairy cow equates to 1.4 a.u.

Under ATCP 51 the calculation of animal units is the sum of the different species and types of animals under WDNR rules (NR 243) that require WPDES permitting for concentrated animal feeding operations ("CAFOs"). For example, a livestock operation that houses 300 heifers and 600 dairy cows would have 1,020 a.u. [(300 x 0.6) + (600 x 1.4) = 1,020]. ATCP 51 adopts the WDNR's calculational method, which is more inclusive than that employed by the EPA, which does not add animal units for different species or types. Under the EPA "CAFO Rule," the above example would yield fewer than 1,000 a.u. (and therefore a WPDES permit would not be required) because the heifers and the dairy cows would not be added.

ATCP 51 adopts the WDNR's more stringent counting method as that method existed on the day the livestock siting bill was published, April 27, 2004. The rule recognizes that the WDNR calculational method is subject to change as NR 243 is currently under revision in light of the EPA's more recent CAFO Rule. DATCP is likely to adopt any calculational change that the WDNR might make.

2. The Reach of ATCP 51

An important limitation on the reach of ATCP 51 is that it applies only in those counties and townships that regulate livestock operations through their zoning codes. Conversely, where agricultural land is not regulated by county or township ordinance, ATCP 51 simply does not apply. A prominent example is that of Clark County, which is said to be Wisconsin's largest dairy producing county. Clark County does not, at this time, regulate livestock siting. Accordingly, ATCP 51 would be inapplicable to Clark County. Said another way, ATCP 51 does not require Clark County to adopt a zoning ordinance so as to regulate livestock siting.⁷⁰

ATCP 51 preempts, however, local zoning ordinances that regulate livestock siting or expansion. For those jurisdictions, ATCP 51 now imposes livestock siting and expansion standards that apply on a statewide basis so as to supersede conflicting local ordinances, subject to an exception.

3. The Significance of ATCP 51

A livestock operation that seeks to be sited or to expand under ATCP 51 does so by completing a standardized application form and accompanying worksheets. If the application form and worksheets are truthfully, fully, and accurately completed and show that the proposed siting or expansion will meet the standards set forth in ATCP 51, then ATCP 51 requires local approval. Approval at the local level is subject, however, to shore land or wetland zoning, flood plain zoning, well construction codes, site erosion control, and post- construction storm water management, as well as state building, electrical, and plumbing codes.⁷¹

Local approval is transferable; it "runs with the land." So long as an operator merely begins siting or expansion within two years of having received local approval, he or she may proceed according to his or her own timetable. Neither a gradually implemented installation or expansion nor a less than fully approved implementation operates to waive or reduce the scope of the local approval.⁷² An operator must merely begin populating the approved facility or constructing or expanding it within two years of approval.⁷³

Local approval triggers strong "right to farm" protection against encroaching development. A new or expanding livestock operation must calculate an "odor score" based upon odor control practices and the proximity and density of "affected neighbors" at the time of application. A subsequent application for an additional expansion under ATCP 51 would be premised not upon the proximity and density of "affected neighbors" at the time of a subsequent application, but rather by reference to those affected neighbors as mapped in the original application.⁷⁴ Those neighbors who "come to the nuisance" during the interval between the original and subsequent applications will be ignored for purposes of calculating the "odor score."

While municipalities that grant local approvals must retain their records for merely a period of seven years, an operator may record the approval, including the maps of affected neighbors and "odor score" calculations, with the Register of Deeds. There is no limit to the passage of time or changes in ownership between the original and any subsequent approvals.⁷⁵

4. To What Size Operations Does ATCP 51 Apply

The threshold for application of ATCP 51 to new or expanded livestock facilities is 500 animal units unless, as noted above, a lower threshold was properly adopted by the local municipality prior to July 19, 2003.⁷⁶

"Livestock facilities" are those feedlots, dairy farms, or other operations at which livestock are fed, confined, maintained, or stabled for a total of 45 days during any 12- month period.⁷⁷ "Related livestock facilities" are treated as a single "livestock facility" where they are owned or operated by the same person and are related in at least one of the following ways:

• Located on the same or adjacent tax parcels;
• Use in common at least one manure collection or storage structure; or
• At least a portion of their manure is applied to the same tax parcel.⁷⁸

"New livestock facilities" are those that will be used as livestock facilities for the first time or for the first time in 5 years.⁷⁹

"Expanded livestock facilities" are those entire livestock facilities created by an "expansion" of the largest number of animal units kept at a livestock facility on at least 90 days in any 12- month period. Merely acquiring an additional existing facility does not constitute an "expansion." Rather, the operator must increase the number of animal units kept at the combined livestock facilities during the requisite 90- day period in order for ATCP 51 to apply.⁸⁰

5. Existing Livestock Facilities Are "Grandfathered"

Livestock facilities that either exist or were locally approved prior to the effective date of ATCP 51 do not fall under this rule.⁸¹ ATCP 51 allows for some degree of expansion of existing facilities without requiring local approval. An existing facility may expand without local approval to the maximum number previously approved or, if no specific maximum number was previously approved, then a number that is 20% higher than the number actually kept on the later of the effective date of ATCP 51 or the effective date of the approval requirement.⁸² This liberalization feature that applies to preexisting or preapproved facilities allows expansion to exceed 500 a.u. without having to obtain local approval.

For example, a preexisting or preapproved livestock facility may house 600 a.u., which is 100 a.u. higher than the ATCP 51 threshold. If no maximum number was stated in a preexisting approval, the livestock operator could expand to as much as 720 a.u. without triggering the requirement for local approval under ATCP 51. For additional "grandfathering," see Section 7 titled Setbacks.

6. Statewide Standards in Local Approvals

Within six months of the effective date of ATCP 51, political subdivisions may not deny an application submitted under that chapter unless the political subdivision has adopted an ordinance that incorporates the ATCP 51 standards.⁸³

Political subdivisions might be able to adopt more stringent standards than those contained in ATCP 51, but only if:

• Other applicable law authorizes such an ordinance;
• Adoption occurs before any given owner or operator files a completed application and worksheets pursuant to ATCP 51; and
• More stringent standards are needed to protect public health or safety based upon reasonable and scientifically defensible findings of fact.⁸⁴

Political subdivisions must file copies of their ordinances (whether modeled on the ATCP 51 standards or on more stringent standards) with DATCP. Political subdivisions may adopt the ATCP 51 standards by incorporation by reference into their zoning codes.

7. Setbacks

• Political subdivisions may establish setbacks that are subject to maximum distances:
• If the facility will have < 1,000 a.u., then the maximum setback for livestock structure is 100 feet from any property line or public road right- of- way (except as related to manure storage structures);
• If it will have ? 1,000 a.u., then a maximum setback of 200 feet from any property line or 150 feet from any public road right- of- way (except as related to manure storage structures);
• Preexisting facilities are grandfathered and may be expanded so long as expansion is away from a property line or public road right- of- way to which the expansion applies;
• The statewide maximum setback for manure storage structure is 350 feet unless their locations comply with previously established lesser setbacks adopted specifically with respect to manure storage structures or they existed prior to the effective date of ATCP 51;
• Previously existing waste storage structures that lie within the 350 feet state maximum setback may be expanded in the absence of approval under ATCP 51 away from the relevant property line or public road right- of- way; and
• A single new waste storage structure may be installed in the absence of ATCP 51 local approval where it will be no closer to the relevant property line or public road than an existing waste storage structure on the same tax parcel so long as the new structure will be no larger than the existing structure and located within 50 feet of the existing structure.⁸⁵

8. Odor and Air Emissions

Applicants must complete worksheets that arrive at an "odor score," which is a prediction of odor generation. DATCP intends that odor scores are to be used exclusively for livestock siting and expansion purposes, but not for other purposes, such as evidence of the existence of a nuisance under common law.⁸⁶

There are three significant exceptions, however, from the odor scoring exercise. New facilities with fewer than 500 a.u., expanded facilities with fewer than 1,000 a.u., and any facility at which all of its livestock structures are located at least 2,500 feet from the nearest "affected neighbor are not required to submit the odor score worksheet as part of their applications."⁸⁷ If a livestock facility is separated by at least 750 feet between or among clusters of livestock structures, the applicant has the option of scoring the operation as a single unit or as two or more individual units.⁸⁸ Well studied odor control practices are listed on worksheet 2. Applicants may apply to DATCP for preapproval of innovative odor control technology or practices based upon documented scientific substantiation of efficacy.

Applicants must use worksheets that are supplied by DATCP and available at http://www.datcp.state.wi.us/index. The logic of the worksheet is an odor prediction for the type of housing, manure management practices, and type of waste storage structures as modified by technologies or management practices to control odor. In addition, a separation score is calculated based upon the proximity and density of the nearest "affected neighbor." Neighbors may agree voluntarily not to be counted as an "affected neighbor." The separation score is subtracted from the initial odor score to arrive at a total odor score.⁸⁹

Political subdivisions must approve complete applications that yield a total score of 500. They must deny applications with scores that are under 470. They have discretion to grant or deny those with scores that range from 470 to 500. While political subdivisions are required to make a record of their reasons, the exercise of their discretion is not reviewable.⁹⁰

9. Nutrient Management

Nutrient management plans in accordance with NRCS 590 (September 2005) are required where:

• The new or expanded facility will have 500 a.u., or
• The facility will have fewer than 500 a.u., but falls below a certain threshold of crop acreage to animal units.

For example, a new dairy facility that will house 400 a.u. would be required to comply with NRCS 590 (September 2005) if the ratio of its crop land to its animal units is less than 1.5. Ratios for the various livestock species are set forth in Table 1 for worksheet 3.

NRCS 590 (September 2005) departs significantly from previous revisions because it includes management for phosphorus. Phosphorus is expected to be the limiting factor so as to require the availability of additional acreage for land spreading as compared to the acreage required under previous editions of NRCS 590.

A qualified nutrient management planner, other than the operator of the livestock facility, must answer each question on the nutrient management checklist (Part C of worksheet 3) and must supply and explain the calculations that support those answers if requested to do so by the local governing municipality. Updated nutrient management plans need not be supplied to the local governing municipality, but the operator must maintain compliance with any applicable nutrient management plan. A separate nutrient management plan need not be created if the operator possesses a WPDES permit in effect for an equal or greater number of animal units for which livestock siting approval is sought.⁹¹

10. Waste Storage Facilities

A registered professional engineer or certified agricultural engineering practitioner must certify the structural integrity of all existing waste storage facilities. Certification must be made as to one of the following conditions:

• Concrete and/or steel construction within the last 10 years according to then existing NRCS standards and absence of apparent signs of structural failure or significant leakage;
• Construction within the last 3 years according to then existing NRCS standards and absence of apparent signs of structural failure or significant leakage;
• Construction in accordance with then applicable NRCS standards and in good condition and repair without apparent signs of structural failure or significant leakage;
• The facility is in good condition and repair, shows no apparent signs of structural failure or significant leakage, and is located on a site at which soils and separation distances to groundwater comply with NRCS technical guide manure storage facility standard 313, table 1 (November 2004); and
• The facility is in good condition and repair, shows no apparent signs of structure failure or significant leakage, is located entirely above ground, and is located on a site at which soils comply with NRCS technical guide manure storage facility standard 313, table 5 (November 2004).⁹²

New or substantially altered facilities are presumed to possess structural integrity if all of the following apply:

• The application for local approval includes design specifications;
• A registered professional engineer or certified agricultural engineering practitioner certifies that the design specifications comply with all of the following:
• NRCS technical guide manure storage facility standard 313 (November 2004), and
• NRCS technical guide manure transfer standard 634 (November 2004).⁹³

A livestock operation seeking approval under ATCP 51 that intends to close any waste storage facility must submit a closure plan that comports with NRCS technical guide closure of waste impoundments standard 360 (June 2001).⁹⁴ Most storage capacity must be "adequate for reasonably foreseeable storage needs based on the operator's waste and nutrient management strategy." Additionally, a storage margin of safety must be maintained ("free board") which is the greater of one foot multiplied by the top area of the storage facility or the volume of rain that would accumulate in the manure storage facility from a 25- year 24- hour storm.⁹⁵

Local approval of a livestock facility does not authorize an operator to populate that approved facility if the construction, alteration, or closure deviates materially and without express authorization from the design specifications or closure plan that are included in the application.⁹⁶ Those operations holding WPDES permits for the same facility based upon a number of animal units equal to or greater than the number for which the operator seeks approval need merely supply a copy of the WPDES permit in support of the structural integrity of waste management structures.

11. Runoff Management

New or substantially altered animal lots must comply with NRCS technical guide waste water treatment strip standard 635 (January 2002).⁹⁷ Existing animal lots must utilize a specified computer model ("BARNY") to predict the average annual phosphorus runoff from each existing animal lot. If no part of the animal lot lies within either 1,000 feet of a navigable lake or 300 feet of a navigable stream, up to 15 pounds of phosphorus may be discharged. If any portion of an animal lot lies within either 1,000 feet of a navigable lake or 300 feet of a navigable stream, however, only 5 pounds of phosphorus may be discharged. Discharge of runoff from an animal lot to any direct conduit to groundwater is prohibited.⁹⁸

Where an existing paved feed storage area is used to store or handle feed with a 70% or higher moisture content, surface water runoff must be diverted from entering the paved area, and leachate from the paved feed area must be collected if the paved area covers more than one acre. The collected leachate may be land spread, and in any event must not be discharged to the waters of the state.⁹⁹

New or substantially altered feed storage areas that store or handle feed with a 70% or higher moisture content must also divert incoming surface water runoff, collect, and properly dispose of leachate (regardless of the acreage of the paved area). In addition, new or substantially altered feed storage areas must have floors at least three vertical feet above groundwater and bedrock. If feed storage areas cover more than 10,000 square feet, they are required to contain effective subsurface systems to collect leachate that might leak through the floor. The system must consist of drain fill material, a tile drainage network, and an effective sub- liner as specified in worksheet 5, Section II.C.¹⁰⁰

Surface runoff must be diverted from contact with animal lots, waste storage facilities, paved feed storage areas, and manure piles located within 100 feet of a navigable lake or 300 feet of a navigable stream.¹⁰¹ New or substantially altered livestock facilities must be designed, constructed, and maintained to prevent overflow.¹⁰² Unconfined manure piles may not be stored within 1,000 feet of a navigable lake or 300 feet of a navigable stream.¹⁰³

Livestock may not have unrestricted access to surface waters unless by so doing vegetative cover on the adjoining banks can be maintained.¹⁰⁴ Operators may install properly designed and maintained livestock or machinery crossings. Worksheet 5, the runoff management worksheet, must be signed both by the applicant and a registered professional engineer or certified agricultural engineering practitioner. Operators are prohibited from populating approved livestock facilities if the construction material deviates from the design specifications, unless expressly authorized by the political subdivision.¹⁰⁵ An applicant who possesses a WPDES permit based on housing a number of animal units equal to or greater than the number for which the operator seeks local approval may provide a copy of that permit to satisfy this section.

12. Application and Approval Process

An applicant must submit an application, which appears in Appendix A to the rules along with the attached worksheets as required.¹⁰⁶ Governing political subdivisions are prohibited from altering the application form or requiring information not requested by the form except to the extent needed to determine compliance with local ordinance standards adopted under ATCP 51.

Political subdivisions may require the applicant to submit up to four complete duplicate copies of the original application. Political subdivisions may charge an application fee established by ordinance not to exceed $1,000 for cost of review and processing. Political subdivisions are prohibited from requiring the applicant to pay any other fee or post any bond or security except for the above- referenced administrative fee.¹⁰⁷

Political subdivisions have 45 days from receipt of applications in which to notify applicants if the applications are complete. In the case of incomplete applications, political subdivisions must specify what additional information is needed. Thereafter upon receipt of the completed applications, political subdivisions have 14 days in which to notify applicants that the applications are complete. Notifications of completeness do not constitute approvals.

Political subdivisions must, within 14 days of having issued notices of completeness, mail copies of the notices to adjacent landowners. Failure on the part of the political subdivisions to comply with the notice requirement, however, neither invalidates an approval or creates a cause of action by property owners who were not so notified.¹⁰⁸

Political subdivisions have 90 days from issuance of the notice of completeness to either grant or deny the application.¹⁰⁹ The time may be extended for good cause.¹¹⁰ Political subdivisions are required to approve the applications where they are complete and contain credible information to show, in the absence of clear and convincing information to the contrary, that the proposed livestock facility meets or is exempt from the standards put forth in subchapter II of ATCP 51.¹¹¹ Political subdivisions may deny applications where the application is not supported by credible information or where the political subdivision finds that the proposed livestock facility fails to comply with an applicable standard under subchapter II based upon other clear and convincing information in the record.¹¹²

Political subdivisions are required to issue their decisions based upon written findings of fact included in their decisions. The findings of fact must be supported by evidence in the record. Findings may be based upon presumptions created in favor of the applicant throughout the chapter.¹¹³ A duplicate copy of the approval must be marked "approved" and provided, along with all of the accompanying worksheets, maps, and other attachments (with the exception of engineering design specifications) to the applicant.

As noted above, the applicant may wish to record the approval with the Register of Deeds and convey the approval to any subsequent purchaser. Political subdivisions possess regulatory powers, including monitoring compliance and withdrawing approval (or seeking other redress provided by law) where the applicant materially represented relevant information in the application, failed to honor relevant commitments made in the application process, or failed to apply with the applicable standards under subchapter II of ATCP 51.¹¹⁴

Political subdivisions must notify DATCP within 30 days of granting, denying, or withdrawing an approval. All of the worksheets, maps, and other attachments (except for engineering design specifications) must accompany the copy of the application.¹¹⁵

As noted above, political subdivisions must maintain their records for at least 7 years. Records encompass the application and all documentation accompanying it, copies of all notices or correspondence, and a record of any public hearing related to the application. Evidentiary material must be maintained as well as minutes of any board or committee meeting held to consider or act on the application. Of course, the written decision, itself, must be maintained as well.¹¹⁶

13. Review of Local Decisions

Wisconsin Statute § 93.90(5) establishes the procedure by which an "aggrieved person" may challenge the granting or denial of a permit under that statute. An "aggrieved person" is a person who applied for the permit or a person who resides or owns property within two miles of the proposed facility. Local decisions are reviewed by the livestock siting facility review board ("Board"), the members of which are to be appointed by DATCP so as to provide broad representation of Wisconsin's agricultural municipal and environmental communities.

Requests for review must be made within 30 days of the local approval or disapproval. The person seeking review need not exhaust any other administrative relief that might be available.

The Board reviews the local decisions strictly upon the facts as set forth in the written record without deference to the political subdivision. The only issue is whether the political subdivision correctly applied the state wide standards to the facts as set forth in the application. If so, the application must be granted.¹¹⁷ The Board must make its decision within 60 days of receipt of the record.

Circuit courts are authorized by Wis. Stat. § 93.90(5)(e) to review Board decisions. Such judicial reviews are strictly limited to a review of the facts contained in the written record.¹¹⁸

14. Checks and Balances

Political subdivisions retain some degree of control over new or expanded livestock operations. They are authorized to monitor compliance by the operation.¹¹⁹ If the political subdivision determines that material misrepresentations were made in the application or that relevant commitments in the application have not been kept, it may withdraw its approval or seek other available redress.¹²⁰

Moreover, Wis. Stat. § 93.90(2)(c) and (d) obligates DATCP to review ATCP 51 at least once every four years with the assistance of a standing technical committee for that purpose. As the WDNR conducts odor management and air emissions studies at livestock facilities pursuant to a recently received major grant, DATCP will modify ATCP 51 as appropriate based upon the research findings.¹²¹

Conclusion

Livestock operations have deferred new construction and expansion plans during the legislative and rule making process. That process has been highly visible and participatory. Demand for new construction and expansion has been pent up during that time. We expect to see a surge of new construction and expansion of existing facilities in light of the predictability afforded by Wis. Stat. § 93.90 and ATCP 51.

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Endnotes

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