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    Wisconsin's New Livestock Facility Siting Rule

    Wisconsin's livestock facility siting rule provides consistency across the state for farmers seeking permits to site new or expanding livestock operations. Still, lawyers should continue to closely review locally implemented permitting programs for consistency with the new rule.

    Jordan K. Lamb

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 80, No. 2, February 2007

     

     

    Icattlen April 2004, Gov. Jim Doyle signed 2003 Wis. Act 235, which required the Department of Agriculture, Trade and Consumer Protection (DATCP) to establish local approval standards for new and expanding livestock operations.1 Accordingly, the DATCP spent the next two years working with technical advisors, local government representatives, environmental groups, livestock producers, and legislators to craft a new administrative rule, chapter ATCP 51 of the Wisconsin Administrative Code, Wisconsin's livestock facility siting rule, which became effective in 2006.2

    Chapter ATCP 51 establishes a framework for issuing local permits for new or expanding livestock facilities that have more than 500 animal units and that are required to obtain local approval.3 This article provides an overview of the new rule, including when it applies and what is required when applying for a permit to site a facility under this new regulatory structure.

    ATCP 51 Applies to New or Expanded Livestock Facilities

    Chapter ATCP 51 only applies to new or expanded livestock facilities that have more than 500 animal units and that are required by a local political subdivision4 to obtain a permit to be constructed. Livestock facilities in areas in which local approval is required that were approved or that existed before the effective date of this rule are required to get a permit only if they expand.5

    Jordan K. LambJordan K. Lamb, U.W. 2002, of DeWitt Ross & Stevens S.C., Madison, is chair of the State Bar’s Agricultural/ Agribusiness Law Section

    A livestock facility means "a feedlot, dairy farm or other operation where livestock are or will be fed, confined, maintained or stabled for a total of 45 days or more in a 12-month period."6 A facility includes all of the tax parcels of land on which the facility is located except for pastures or winter grazing areas.7

    A new livestock facility is "a livestock facility that will be used as a livestock facility for the first time, or for the first time in at least 5 years."8 An expanded livestock facility is a facility on which there is "an increase in the largest number of animal units kept at a livestock facility on at least 90 days in any 12-month period."9 An expanded facility refers to the entire facility that is created by the expansion, including both new and existing structures.10

    In general, permits may be required only for new or expanded livestock facilities that house more than 500 animal units.11 Under chapter ATCP 51, animal units means the "largest number of animal units that are kept at the facility for 90 days in any 12-month period."12 Animal units are not necessarily the same as the number of animals on a livestock facility. Rather, a conversion factor established by the Department of Natural Resources (DNR) is used for each different animal type (beef, dairy, swine) and animal size (mature or immature) to determine how many animals equal one animal unit.13 For example, 500 animal units equals 500 steers or cows over 600 pounds; 1,000 calves under 600 pounds; approximately 357 milking cows; 1,250 pigs over 55 pounds; or 27,777 turkeys.

    Political subdivisions (cities, villages, towns, or counties)14 are not required to issue permits for new or expanding livestock facilities. However, if a city, village, town or county chooses to require a permit to site facilities, then that political subdivision must use the statewide standards contained in chapter ATCP 51 to evaluate permit applications.15

    Further, local political subdivisions must approve applications that meet the chapter ATCP 51 requirements.16 In general, local political subdivisions may consider only the criteria in chapter ATCP 51 when evaluating applications for a siting permit, except that local governments may apply less stringent setback requirements, and may apply more stringent siting standards if the increased standard is based on "reasonable and scientifically defensible findings of fact" that show that the standard is necessary to protect public health or safety.17

    Once a livestock facility receives local approval, the approval "runs with the land." It will remain in effect even if ownership of the operation changes, as long as subsequent owners abide by the terms of the approval.18 In addition, livestock operators are not required to construct new facilities or implement expansions immediately after receiving approval. However, local political subdivisions may withdraw an operator's permit to site or expand a facility if the operator does not begin populating and constructing "every new or expanded" structure in the proposed facility within two years from the date the permit is issued.19

    Local units of government also have the authority and the discretion to monitor compliance with a siting permit and to withdraw approval of an operation for misrepresentation of relevant information or for failure to comply with permit requirements.20

    Setbacks, Odor Management, and Water Quality Standards

    Chapter ATCP 51 imposes property line and roadway setback requirements on livestock structures. A livestock structure is a building that is used to house or feed livestock, to confine livestock for milking or feeding (other than for grazing), to store livestock feed, or to collect or store waste generated at a livestock facility.21

    Local political subdivisions may establish the property line and roadway setbacks that apply to livestock structures, but they may not require a setback of more than 100 feet from any property line or public road right-of-way if the livestock facility will have fewer than 1,000 animal units, or require a setback of more than 200 feet from any property line or more than 150 feet from a public road right-of-way if the livestock facility will have 1,000 or more animal units.22 They also are prohibited from preventing the use or expansion of a livestock structure that was located within the setback area before the effective date of the setback requirement, except that the setback may prevent further expansion in the direction of the property line or road.23

    The rule requires a larger setback distance for waste storage structures than for other types of livestock structures. A new waste storage structure must be 350 feet from a property line or public road right-of-way.24 Existing waste storage structures that are within this 350-foot setback cannot be expanded toward a property line or road.25 If a waste storage structure exists within the setback area and the operator desires to construct a new, additional waste storage structure, then the new structure may be constructed within the setback area provided that it is no farther than 50 feet from the existing structure and is not closer to the property line or road than the existing structure.26

    The rule does not create new water quality setbacks. Rather, it simply requires compliance with existing shoreland, wetland, and floodplain zoning ordinances and the state well code.27

    Chapter ATCP 51 establishes a framework for odor management standards that are applicable to new livestock facilities with 500 or more animal units, and expanding livestock facilities with 1,000 or more animal units, if the facilities are located within 2,500 feet from the facility's nearest affected neighbor.28

    If the rule's odor management provisions apply to a facility, then the facility's size, livestock type, waste storage structures, manure management processes, odor control practices (for example, diet manipulation, bio-filter, windbreak, anaerobic digestion, and so on) and proximity to neighbors must all be evaluated to produce an odor score. In order to obtain approval, a facility must achieve an odor score of 500 or more.29

    Applicants are permitted to apply for alternative odor score credits from the DATCP for innovative odor management practices. Innovative odor management practices are those practices that are not specifically offered as an option under the rule.30 The DATCP must approve credits for these practices prior to their implementation. However, this section may leave room for operators using new agricultural technologies or new environmental compliance measures, such as the DNR's Green Tier Program, to meet the chapter ATCP 51 standards in ways that are not specifically delineated in the rule.31 In addition, if an operator applies for a permit to expand a livestock facility that was previously approved under a chapter ATCP 51 application, that operator is permitted to calculate his or her odor score for the expanded operation using the same affected neighbor reference points that were used for the prior approval.32

    Chapter ATCP 51 generally requires compliance with USDA Natural Resource Conservation Service (NRCS) nutrient management standard 590 (September 2005).33 A nutrient management checklist must be included with a siting application and must be completed by a certified nutrient management planner other than the livestock operator.34 Applicants are required to submit information on the types and amount of waste generated at the facility, waste storage methods (duration and capacity), final disposition of waste (landspreading or other means), acres of land available for landspreading, landspreading map, and other information.

    Applicants must construct waste storage facilities to "minimize the risk of structural failure, and to minimize the potential for waste discharge to surface water or groundwater."35 The rule contains specific technical requirements that must be followed for the construction and maintenance of existing, new, and substantially altered waste storage structures.36

    Finally, before an approval may be issued to a livestock facility, the facility must demonstrate that it can comply with standards to prevent polluted runoff. New or substantially altered animal lots must be designed and constructed in accordance with NRCS technical guide wastewater treatment strip standard 635 (January 2002).37 Existing animal lots must meet a specified phosphorus runoff limitation and may not allow direct runoff to groundwater.38 Feed storage facilities are required to be managed to prevent leachate and polluted runoff to waters of the state.39

    Application Form and Worksheets

    Operators seeking local approval of a new or expanded livestock facility must complete the chapter ATCP 51 application form and the associated worksheets, which are available on the DATCP's Web site.40

    An application must contain a description of the proposed livestock facility, an area map, a site map, an environmental incident response plan for dealing with manure spills and odor complaints, an employee training plan for manure and odor management, and the following completed worksheets: animal unit calculation, odor management, waste and nutrient management, waste storage facilities, and runoff management.41

    If an applicant holds a Wisconsin Pollution Elimination Discharge System permit from the DNR for its facility, then the applicant is not required to submit the waste and nutrient management, waste storage facilities, and runoff management worksheets.42

    Within 45 days from receipt of an application, a local political subdivision must notify the applicant whether the application is complete.43 The political subdivision must mail a copy of the completed application to each property owner that is adjacent to the proposed livestock operation.44 Adjacent means "land parcels that touch each other, or on land parcels that are separated only by a river, stream or transportation or utility right-of-way."45 Accordingly, this notice need be provided only to property owners whose land touches the proposed livestock operation.

    The local political subdivision then must issue its decision for approval or denial within 90 days from receipt of the application46 and is required to notify the DATCP of its decision.47

    Appealing a Local Siting Decision

    The Wisconsin Legislature created an opportunity for aggrieved persons to appeal decisions regarding livestock siting applications to the Livestock Facility Siting Review Board.48 An aggrieved person can be the applicant for local approval or a person who resides or owns land within two miles of the proposed livestock facility.49 A decision must be appealed to the Board within 30 days after the political subdivision issues its decision.50 A decision made by the Board can be appealed to circuit court.51

    Conclusion

    Wisconsin's livestock facility siting rule is designed to provide consistency across the state for farmers seeking permits to site new or expanding livestock operations. Accordingly, all farmers should now be subject to substantially the same standards when seeking to construct or expand livestock facilities. Nonetheless, attorneys assisting farmers with siting issues should continue to closely review locally implemented permitting programs for consistency with chapter ATCP 51.

    Endnotes

    1Creating Wis. Stat. § 93.90.

    2Chapter ATCP 51 was generally effective on May 1, 2006. However, for small businesses as defined in Wis. Stat. section 227.114(1), it was effective on July 1, 2006.

    3Note, however, that some local governmental units are permitted to apply the rule to facilities with fewer than 500 animal units. See infra note 11.

    4Wis. Admin. Code § ATCP 51.01(31). "Political subdivision" means a city, village, town, or county.

    5Wis. Admin. Code § ATCP 51.06.

    6Wis. Admin. Code § ATCP 51.01(19).

    7See id. See also definition of pasture (Wis. Admin. Code § ATCP 51.01(29)) and winter grazing area (Wis. Admin. Code § ATCP 51.01(46)).

    8Wis. Admin. Code § ATCP 51.01(26).

    9Wis. Admin. Code § ATCP 51.01(13), (14).

    10See id. Note that existing structures are not subject to the same standards as new structures and may be exempt from certain provisions.

    11Note that chapter ATCP 51 will apply to a new or expanded livestock facility that will exceed a lower animal unit threshold if that lower animal unit threshold was specified in a local zoning ordinance before July 19, 2003. Wis. Stat. § 93.90(3)(a)9. Local political subdivisions may set a higher animal unit threshold as well.

    12Wis. Admin. Code § ATCP 51.04.

    13Wis. Admin. Code § NR 243.03(3) (April 27, 2004). This date-specific reference is important, because chapter NR 243 currently is being revised.

    14Wis. Admin. Code § ATCP 51.01(31).

    15Wis. Stat. § 93.90(3). If a city, village, town, or county does not adopt the statewide permitting standards contained in chapter ATCP 51, that political subdivision may not disapprove an application for a permit for the siting of a livestock operation or prohibit the siting of a livestock operation in an agricultural zoning district. However, the political subdivision can still prohibit or disapprove a livestock facility if that facility violates a valid local ordinance related to shoreland zoning, floodplain zoning, construction site erosion control, or stormwater management, or if the proposed facility violates a building, electrical, or plumbing code that is consistent with the state building, electrical, or plumbing code for that type of facility. See Wis. Stat. § 93.90.

    16Wis. Stat. § 93.90(3).

    17Wis. Admin. Code § ATCP 51.10(3).

    18Wis. Admin. Code § ATCP 51.08.

    19Wis. Admin. Code § ATCP 51.08(2).

    20Wis. Admin. Code § ATCP 51.34(4).

    21See Wis. Admin. Code § ATCP 51.01(20).

    22Wis. Admin. Code § ATCP 51.12(1).

    23See id.

    24Wis. Admin. Code § ATCP 51.12(2).

    25See id.

    26See id.

    27See Wis. Stat. §§ 59.692, 61.351, 62.231, 87.30; Wis. Admin. Code ch. NR 811, 812.

    28An affected neighbor generally is a residence or high use building that is located within 2,500 feet from a livestock facility. Wis. Admin. Code § ATCP 51.01(2). A high use building is a residential building that has at least six distinct dwelling units; a restaurant, hotel, motel, or tourist rooming house that holds a permit under Wis. Stat. section 254.64; a school classroom building; a hospital or licensed care facility; or a nonfarm business or workplace that normally is occupied during at least 40 hours of each week of the year by customers or employed workers. Wis. Admin. Code § ATCP 51.01(16).

    29Note that a local political subdivision may, in its discretion, approve a facility with an odor score of 470-500. Wis. Admin. Code § ATCP 51.14(4).

    30Wis. Admin. Code § ATCP 51.14(5)(d).

    31For more information about Green Tier, go to http://dnr.wi.gov/org/caer/cea/environmental/index.htm.

    32Wis. Admin. Code § ATCP 51.14(6).

    33Note that several sections of NRCS 590 are omitted from chapter ATCP 51. See note following Wis. Admin. Code § ATCP 51.16(1)(a)1.

    34Wis. Admin. Code § ATCP 51.16(1)(a)2.

    35Wis. Admin. Code § ATCP 51.18(1).

    36See Wis. Admin. Code § ATCP 51.18.

    37Wis. Admin. Code § ATCP 51.20(1).

    38Wis. Admin. Code § ATCP 51.20(2).

    39Wis. Admin. Code § ATCP 51.20(3).

    40<http://www.datcp.state.wi.us/arm/agriculture/land-water/livestock_siting /siting.jsp>.

    41See Wis. Admin. Code § ATCP 51.30 and ch. ATCP 51, appendix A.

    42Wis. Admin. Code §§ ATCP 51.16(4), 51.18(7), 51.20(10).

    43Wis. Admin. Code § ATCP 51.30(5).

    44Wis. Admin. Code § ATCP 51.30(6).

    45Wis. Admin. Code § ATCP 51.01(1).

    46Wis. Admin. Code § ATCP 51.32.

    47Wis. Admin. Code § ATCP 51.34(5).

    48See Wis. Stat. § 93.90(5). The Board has seven members: one member representing towns, one member representing counties, one member representing environmental interests, one member representing livestock farming interests, and three other members.

    49Wis. Stat. § 93.90(5)(a).

    50Wis. Stat. § 93.90(5)(b).

    51Wis. Stat. § 93.90(5)(e).

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