450 feet from surface inlets that discharge to navigable waters
225 feet from channelized flow (i.e., a drainage area of ≥ 5 acres)
225 feet from subsurface drainsStructures located outside the boundaries indicated above may meet the runoff standard by documenting a discharge of less than 15 lbs. of phosphorus annually.
This rule clarifies the prohibition against direct runoff from animal lots to any direct conduit to groundwater (such as a sinkhole) and now includes runoff to surface waters of the state.
While this rule holds livestock operations to a standard of no significant discharge, it does make changes in runoff standards for animal lots, as well as feed storage areas, to account for the U.S. Environmental Protection Agency’s “no discharge” standard for animal feeding operations, and changes in the NRCS technical standards designed to implement the federal “no discharge” standard.
This rule substantially changes requirements for feed storage facilities. Existing buildings, bunkers, or paved areas used to store feed must be evaluated to determine whether they meet technical standards, are in good repair and do not have signs of a significant discharge. A local government may request a written report documenting the methods used for evaluation and the findings in support of the conclusions reached in the evaluation. New operating requirements for existing feed storage include the diversion of clean water and collection and storage of leachate and initial runoff.
Every new or substantially altered feed storage structure, including any unroofed building, bunker or paved area used for feed storage or handling, now must be designed, constructed and maintained in accordance with NRCS technical guide waste treatment standard 629 (January, 2017), with the leachate and contaminated runoff from such storage structures being collected and stored for future land application, or treated in accordance with NRCS technical guide vegetated treatment area standard 635 (September, 2016R).
If a new or expanded feed storage structure is less than one acre and not located in or near a sensitive area, the new or altered portions of feed storage structure must meet design requirements for the floor of the structure, but may manage runoff in any manner that avoids a significant discharge.
To ensure consistency with the prohibition against significant discharges in the nonpoint rules (see Wis. Admin. Code § NR 151.055), this proposed rule reflects current standards and practices for managing milkhouse wastewater. Storing waste is required except for small operations that generate less than 500 gallons of milking center wastewater daily. Existing clean water diversion requirements related to feed storage have been expanded to be consistent with NR 151, which requires diversion if structures are located within 300 feet of wetlands and 500 feet from any conduit to groundwater.
CAFO Permit Substitutions
This proposed rule more clearly defines how CAFOs can demonstrate compliance with siting standards based on a Wisconsin Pollutant Discharge Elimination System (WPDES) permit. Because the Department of Natural Resources (“DNR”) does not issue CAFO permits with a maximum number of animal units, this rule eliminates the requirement that CAFOs provide WPDES permits documenting the same number of animal units as sought for local approval under the siting rule. This rule still allows CAFOs to demonstrate compliance with the nutrient management requirements based on a WPDES permit, but imposes more specific requirements to submit a nutrient management checklist that was previously submitted to DNR as long as the nutrient management plan covers the same or greater number of animal units than the number for which the operator seeks local approval. CAFOs also must demonstrate compliance with the siting standards related to manure storage and runoff management by submitting plans and specifications approved by DNR for relevant livestock structures. Also, the applicant must certify that the livestock facility has met all WPDES permit conditions, and does not have any WPDES permit violations.
Permit Modifications
This rule establishes a clear framework to allow permit modifications for expanding livestock facilities previously granted local approval. This rule specifically:
Limits the fee to $500 or less.
Sets criteria to qualify for a permit modification for livestock operators who plan either to (1) construct or alter one or more livestock structures without increasing the maximum number of animal units housed on the livestock operation or (2) increase the maximum number of animal units by up to 20 percent (but in no case increase more than 1000 animal units) without constructing or altering any livestock structures.
Establishes a procedure for processing modifications that simplifies the steps (e.g. no written decision with findings) and reduces the waiting time to no more 45 days.Complete Application
In making a completeness determination regarding an application for local approval, a local government will be required to use a Department-approved form to document specific items that are missing from the application. Items on the checklist not identified by the local government are deemed complete, and an applicant is only required to submit additional materials identified by the local government on the checklist to receive a completeness determination.
Terms of Approval
After a local government receives an application, the local government shall notify the applicant
that prior to a final decision on the application construction activities at the livestock facility shall be limited to grading.
Upon approval of an application, a local government may only impose conditions related to an operator’s compliance with the standards authorized in subch. II of ATCP 51. Any conditions attached to a local approval must be described in the final written decision granting the approval.
Compliance Monitoring
This rule clarifies the options for a local government to monitor compliance, including verification that a new or modified waste storage facility is constructed according to specifications. In addition to inspections, the local government may require submission of a construction plan, drawings reflecting design changes made during construction, and documentation certifying that the facility was installed in accordance with technical standards.
Standards Incorporated by Reference
Pursuant to Wis. Stat. § 227.21, the Department intends to request permission from the Attorney General to incorporate the following standards by reference in this rule, without reproducing the complete standards in this rule:
NRCS technical guide waste storage facility standard 313 (October, 2017R) NRCS technical guide composting facility standard 317 (January, 2017).
NRCS technical guide waste facility closure standard 360 (May, 2018).
NRCS technical guide anaerobic digester standard 366 (January, 2018).
NRCS technical guide roofs and covers standard 367 (April, 2016).
NRCS technical guide windbreak/shelterbelt establishment standard 380 (October, 2016).
NRCS technical guide pond sealing or lining – compacted soil treatment 520 (October, 2017R).
NRCS technical guide pond sealing or lining – geomembrane or geosynthetic clay liner 521 (October, 2017R).
NRCS technical guide pond sealing or lining – concrete 522 (October, 2017R).
NRCS technical guide nutrient management standard 590 (December, 2015).
NRCS technical guide feed management standard 592 (October, 2017).
NRCS technical guide waste treatment standard 629 (January, 2017).
NRCS technical guide waste separation facility standard 632 (April, 2014).
NRCS technical guide waste transfer standard 634 (January, 2014).
NRCS technical guide vegetated treatment area standard 635 (September, 2016R).
NRCS Wisconsin Conservation Planning Technical Note WI-1, “Nutrient Management” (February, 2016) and July 2016 Appendix 1.Copies of these standards may be obtained from NRCS, and will be on file with the Department and Legislative Reference Bureau. Copies are not reproduced in this rule.
Summary of, and Comparison with, Existing or Proposed Federal statutes and Regulations
Nearly half of livestock operations affected by this rule are also subject to regulation under the federal Clean Water Act. Under delegated authority from EPA, the DNR adopted Wis. Admin. Code ch. NR 243 (“NR 243”) to regulate water pollution discharges from livestock facilities. Under NR 243, CAFOs must obtain a DNR WPDES permit. CAFOs must meet standards designed to ensure that the proposed livestock facility will not pollute surface water or groundwater, and may use approvals from DNR to show compliance with Department standards for the issuance of local siting permits, including standards for nutrient management, waste storage facilities, and runoff management (the standards parallel WPDES permit standards, and have a similar purpose, although WPDES standards are stricter in some respects). To qualify for a siting permit, a WPDES permit holder must also demonstrate compliance with Department standards for location of livestock structures on property and odor management, which are not covered by a WPDES permit. NRCS, a branch of the United States Department of Agriculture (“USDA”), develops technical standards for the design and installation of conservation practices, including the NRCS 590 standard for nutrient management. Modified for use in Wisconsin, these technical standards are the foundation for NRCS programs such as the Environmental Quality Incentives Program (“EQIP”) and the Conservation Stewardship Program (“CSP”). To promote consistency, state and local governments have incorporated the same technical standards into cost-share, regulatory and other programs. Not only are these technical standards part of ATCP 51, they are critical to the nonpoint rules (ATCP 50 and NR 151) and DNR's WPDES permitting program for CAFOs.
In addition to EQIP and CSP, USDA operates the following programs that may provide incentive payments to help livestock producers implement conservation practices, including practices that may help livestock producers meet livestock facility siting standards under this rule:
Conservation Reserve Program (CRP).
Conservation Reserve Enhancement Program (CREP).
Agricultural Conservation Easement Program (ACEP). Federal law establishes reporting and other requirements for livestock facilities related to air emissions. For example, large operations must report certain types of releases to local and state agencies, as directed by the Emergency Planning and Community Right-to-Know Act. EPA also has authority to respond to citizen complaints or requests for assistance from state or local government agencies to investigate releases of hazardous substances from farms. Federal law does not directly cover odor management on livestock facilities.
Comparison with Rules in Adjacent States
Like Wisconsin, the four surrounding states each have state requirements for new and expanding livestock operations related to facility construction, runoff control, and manure management. Except for Minnesota, these states have enacted laws that preempt or standardize local regulation of livestock facilities with the goal of providing a more uniform and predictable regulatory environment for farm businesses.
Illinois
In 1996, Illinois enacted a Livestock Management Facilities Act (“LMFA”) to create a state framework for regulation of livestock facilities. LMFA, which was updated in 1998, 1999, and 2007, was expressly adopted to provide a framework for the livestock industry to expand while establishing environmental and other safeguards. While Illinois law precludes counties from regulating agricultural uses such as livestock facilities, it allows a county to request a public informational meeting about a proposed livestock facility and submit advisory, non-binding recommendations related to the facility’s compatibility with surrounding land uses, odor control, traffic patterns, and other factors. Depending on their size and other factors, livestock facilities may be subject to state requirements for waste storage design, setback distances, odor control for certain structures, certification of livestock managers, waste management plans, and reporting of released wastes. Required setback distances for new facilities are scaled by size, starting at 1,320 feet for facilities under 1,000 AUs.
Iowa
In 2002, Iowa enacted legislation requiring that proposed confined feeding operations meet state standards related to building setbacks, manure storage construction, manure management plans, and air quality (air quality standards are still being developed). In place of local permitting of livestock facilities, Iowa counties have the option of requiring that producers achieve a passing score on the state-approved “Master Matrix,” an assessment tool that identifies practices designed to minimize to air, water, and community impacts. State standards for new and expanding facilities include different construction requirements for formed and unformed waste storage structures, and requirements involving manure application related to annual plan updates and phosphorus management. The size of the operation, and type of construction (new or expansion) determine applicable standards such as setbacks, which range from 750 to 3,000 feet.
