LRB-5529/1
KP:wlj&kjf
2019 - 2020 LEGISLATURE
February 11, 2020 - Introduced by Senators Marklein, Bernier, Feyen,
LeMahieu
and Olsen, cosponsored by Representatives Tranel,
Tauchen, Kurtz, Novak,
Ballweg, Summerfield and Tusler. Referred to Committee on Agriculture,
Revenue and Financial Institutions.
SB808,2,2
1An Act to repeal 93.90 (2) (c), 93.90 (3) (a) (intro.), 93.90 (3) (a) 5., 93.90 (3) (a)
26., 93.90 (3) (a) 8., 93.90 (3) (a) 9., 93.90 (3) (ae), 93.90 (3) (am), 93.90 (3) (ar) and
393.90 (4);
to renumber 93.90 (3) (a) 1., 93.90 (3) (a) 3., 93.90 (3) (a) 4. and 93.90
4(3) (f);
to renumber and amend 93.90 (3) (a) 2., 93.90 (3) (b), 93.90 (3) (c), 93.90
5(3) (d) and 93.90 (3) (e);
to amend 93.90 (1m) (b), 93.90 (2) (a), 93.90 (2) (d), 93.90
6(2) (e) 2., 93.90 (5) (title), 93.90 (5) (a), 93.90 (5) (b), 93.90 (5) (bm), 93.90 (5) (c),
793.90 (5) (d) and 93.90 (5) (f);
to repeal and recreate 93.90 (3) (title); and
to
8create 15.135 (2), 93.90 (1m) (bm), 93.90 (1m) (dr), 93.90 (1m) (eg), 93.90 (1m)
9(er), 93.90 (1m) (g), 93.90 (1m) (h), 93.90 (1m) (i), 93.90 (2) (am), 93.90 (2) (f),
1093.90 (2m), 93.90 (3) (g), 93.90 (3) (h) (intro.), 93.90 (3) (h) 5., 93.90 (3) (i) 1.,
1193.90 (3) (i) 2. (intro.), 93.90 (3) (j), 93.90 (3) (L) and 93.90 (6) of the statutes;
1relating to: livestock facility siting and expansion and granting rule-making
2authority.
Analysis by the Legislative Reference Bureau
This bill makes changes concerning the siting and expansion of livestock
facilities, including the following:
1. The bill requires the Department of Agriculture, Trade and Consumer
Protection to receive and review applications for siting or expanding a livestock
facility if a city, village, town, or county (political subdivision) requires approval for
siting or expanding a livestock facility in the political subdivision. Within two
business days of receiving an application, DATCP must provide a copy of the
application to the political subdivisions in which the property that is the subject of
the application is located. Within 14 days of receiving an application, DATCP must
notify the applicant whether the application is complete and, if not, what
supplementary information is needed to complete the application. After DATCP
determines that an application is complete, DATCP must provide 30 days for
receiving public comments on the application and may hold a public hearing during
this period.
Generally, DATCP is required to approve or disapprove the application within
10 days after the close of the public comment period. DATCP must approve the
application if the applicant complies with DATCP's livestock facility siting rules,
except that if a political subdivision enacts a more stringent requirement as allowed
under the bill, DATCP must approve the application if the applicant complies with
the political subdivision's more stringent requirements and DATCP's livestock
facility siting rules that are consistent with the political subdivision's requirements.
In approving or disapproving the application, DATCP must make written findings
of fact and conclusions of law and a record of its decision making. DATCP also must
provide notice of its decision to the political subdivision, the applicant, and any other
party that submitted written comments during the public comment period.
Under current law, an application for siting or expanding a livestock facility is
submitted to a political subdivision. Within 45 days, the political subdivision must
notify the applicant whether the application is complete and, if not, what information
is needed to complete the application. Current law also generally requires a political
subdivision to approve or disapprove an application within 90 days of determining
that an application is complete.
2. The bill requires a political subdivision to notify all landowners adjacent to
the proposed livestock facility siting or expansion and to approve or deny an
application within 60 days of receiving notice that DATCP approved an application.
Under the bill, a political subdivision may disapprove or prohibit the siting or
expansion of a livestock facility only for certain reasons, including any of the
following: a) the facility would violate a setback requirement established under the
bill; b) the site is in a location that is not an agricultural zoning district; and c) the
proposed facility violates a building, electrical, or plumbing code consistent with the
state building, electrical, or plumbing code.
3. The bill authorizes aggrieved persons to challenge DATCP's decision on a
livestock facility siting or expansion application. The bill defines an “aggrieved
person” as a political subdivision in which a proposed livestock facility would be
located, an applicant, or a person who lives or owns land within two miles of a
proposed livestock facility. Under the bill, the Livestock Facility Siting Review
Board determines whether to reverse DATCP's decision on approving or
disapproving an application. An aggrieved person may appeal the decision of the
board to circuit court. The bill also specifies that a person may challenge the decision
of a political subdivision on an application by bringing an action before the board of
appeals or adjustment of the political subdivision or the appropriate circuit court.
Under current law, a challenge to a political subdivision's decision on an
application is decided by the Livestock Facility Siting Review Board, and the board's
decision may be appealed to circuit court.
4. The bill generally prohibits a political subdivision from enforcing or enacting
a requirement for approving livestock facility siting or expansion applications that
is more stringent than DATCP's rules. Under the bill, a political subdivision may
enact a requirement that is more stringent than DATCP's rules if the requirement
is based on reasonable and scientifically defensible findings of fact made by the
political subdivision that satisfy certain requirements. Current law allows a
political subdivision to enforce a standard that is more stringent than DATCP's rules
if the political subdivision enacts an ordinance and bases the standard on reasonable
and scientifically defensible findings of fact that satisfy certain requirements.
5. Under the bill, if a political subdivision establishes a setback requirement
from public roads for livestock structures or waste storage structures, the setback
requirement may not require that the structure be located more than 100 feet from
public roads.
6. The bill also provides that a livestock structure or waste storage structure
constructed after the bill takes effect may be located closer to a property line of
another owner's property than a setback requirement established by DATCP's rules
if the owner of the land on which the structure is located and the owner of land within
the required setback distance enter into a written agreement and record the
agreement with the county register of deeds.
7. The bill creates the Livestock Facility Technical Review Board attached to
DATCP, consisting of the following members nominated by the secretary of
agriculture, trade and consumer protection and confirmed by the senate for five-year
terms: a) one member selected from names submitted by the Wisconsin Towns
Association; b) one member selected from names submitted by the Wisconsin
Counties Association; c) one member selected names submitted by the Land and
Water Conservation Association; d) one member selected from names submitted by
statewide, environmental-related organizations specified in the bill; and e) five
members selected from names submitted by statewide, agriculture-related
organizations specified in the bill. Under the bill, DATCP may promulgate rules
specifying standards for siting and expanding livestock facilities only if at least
two-thirds of the members of the Livestock Facility Technical Review Board
recommends that DATCP promulgate the rules. This requirement does not apply to
existing rules promulgated by DATCP that specify standards for siting and
expanding livestock facilities. Current law requires DATCP to promulgate rules
specifying standards for siting and expanding livestock facilities.
8. The bill specifies that rules promulgated by DATCP that establish setback
requirements or odor and air emissions standards for waste storage structures do not
apply to manure digesters or structures used to collect and store waste under a
livestock housing facility.
9. The bill eliminates the requirement under current law that DATCP review
every four years its rules specifying standards for siting and expanding livestock
facilities.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB808,1
1Section
1. 15.135 (2) of the statutes is created to read:
SB808,4,52
15.135
(2) Livestock facility technical review board. (a) There is created a
3livestock facility technical review board which is attached to the department of
4agriculture, trade and consumer protection under s. 15.03. The board consists of the
5following members:
SB808,4,76
1. A member selected from names submitted by the Wisconsin Towns
7Association.
SB808,4,98
2. A member selected from names submitted by the Wisconsin Counties
9Association.
SB808,4,1110
3. A member selected from names submitted by the Land and Water
11Conservation Association.
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4. A member selected from names submitted by Clean Wisconsin, Inc., Midwest
13Environmental Advocates, the Sierra Club, the Nature Conservancy, Wisconsin
14Environment, Inc., and other statewide, environmental-related organizations.
SB808,5,6
15. Five members selected from names submitted by the Wisconsin Farm
2Bureau Federation, the Wisconsin Farmer's Union, the Dairy Business Association,
3the Wisconsin Dairy Alliance, the Wisconsin Pork Producers, the Wisconsin
4Cattlemen's Association, and other statewide, agriculture-related organizations. At
5least 3 of these members must hold a permit under s. 283.31 from the department
6of natural resources or be a permittee's designee.
SB808,5,97
(b) The members under par. (a) shall be nominated by the secretary of
8agriculture, trade and consumer protection, and with the advice and consent of the
9senate appointed, for 5-year terms.
SB808,2
10Section 2
. 93.90 (1m) (b) of the statutes is amended to read:
SB808,5,1511
93.90
(1m) (b) “Application for approval" means an application
submitted to
12the department for approval of a livestock facility siting or expansion
based on
13compliance with standards promulgated by rule under sub. (2) (a), and, if applicable,
14more stringent standards enacted by a political subdivision under sub. (3) (i) 1. An
15“application for approval” includes an application for permit modification.
SB808,3
16Section 3
. 93.90 (1m) (bm) of the statutes is created to read:
SB808,5,2017
93.90
(1m) (bm) “Application for permit modification” means an application
18concerning a livestock facility siting or expansion that was previously approved
19under sub. (2) (f) 5. or approved before the effective date of this paragraph .... [LRB
20inserts date], if any of the following applies:
SB808,5,2421
1. The proposed livestock facility involves the construction or alteration of one
22or more livestock structures without increasing the maximum number of animal
23units authorized in the most recent approval granted under sub. (2) (f) 5. or granted
24before the effective date of this subdivision .... [LRB inserts date].
SB808,6,3
12. The proposed livestock facility involves increasing the maximum number of
2animal units held at the livestock facility without the construction or alteration of
3any livestock structures and all of the following apply:
SB808,6,74
a. The applicant has not previously increased the number of animal units above
5the maximum number of animal units authorized in the most recent local approval
6granted under sub. (2) (f) 5. or granted before the effective date of this subd. 2. a. ....
7[LRB inserts date].
SB808,6,118
b. The proposed increase in animal units does not exceed 20 percent of the
9maximum number of animal units authorized in the most recent local approval
10granted under sub. (2) (f) 5. or granted before the effective date of this subd. 2. b. ....
11[LRB inserts date].
SB808,4
12Section
4. 93.90 (1m) (dr) of the statutes is created to read:
SB808,6,1313
93.90
(1m) (dr) “Highway” has the meaning given in s. 340.01 (22).
SB808,5
14Section
5. 93.90 (1m) (eg) of the statutes is created to read:
SB808,6,2315
93.90
(1m) (eg) “Livestock structure" means a building or other structure used
16to house or feed livestock, to confine livestock for milking, to confine livestock for
17feeding other than grazing, to store livestock feed, or to collect or store waste
18generated at a livestock facility. “Livestock structure" includes a barn, milking
19parlor, feed storage facility, feeding facility, animal lot, or waste storage structure.
20“Livestock structure" does not include a pasture or winter grazing area, a fence
21surrounding a pasture or winter grazing area, a livestock watering or feeding facility
22in a pasture or winter grazing area, or a machine shed or like facility that is not used
23for livestock.
SB808,6
24Section 6
. 93.90 (1m) (er) of the statutes is created to read:
SB808,6,2525
93.90
(1m) (er) “Local approval” has the meaning given in s. ATCP 51.01 (21).
SB808,7
1Section
7. 93.90 (1m) (g) of the statutes is created to read:
SB808,7,42
93.90
(1m) (g) “Property line” means the boundary of a property that is owned
3by someone other than the owner of the livestock structure for which a setback
4requirement is being measured.
SB808,8
5Section 8
. 93.90 (1m) (h) of the statutes is created to read:
SB808,7,76
93.90
(1m) (h) “Waste” means manure, milking center waste, and other organic
7waste generated by a livestock facility.
SB808,9
8Section 9
. 93.90 (1m) (i) of the statutes is created to read:
SB808,7,129
93.90
(1m) (i) “Waste storage structure” means a waste storage impoundment
10made by constructing embankments, excavating a pit or dugout, or fabricating a
11structure. “Waste storage structure” does not include equipment used to apply waste
12to land.
SB808,10
13Section 10
. 93.90 (2) (a) of the statutes is amended to read:
SB808,7,2214
93.90
(2) (a) For the purposes of this section, the department shall promulgate
15rules specifying standards for siting and expanding livestock facilities. In
16promulgating the rules, the department may incorporate by cross-reference
17provisions contained in rules promulgated under ss. 92.05 (3) (c) and (k), 92.14 (8),
1892.16, and 281.16 (3) and ch. 283. The department may not promulgate rules under
19this paragraph that conflict with rules promulgated under s. 92.05 (3) (c) or (k), 92.14
20(8), 92.16, or 281.16 (3) or ch. 283.
The department may not promulgate rules under
21this paragraph unless at least two-thirds of the members of the livestock facility
22technical review board first approves the rules.
SB808,11
23Section 11
. 93.90 (2) (am) of the statutes is created to read:
SB808,8,3
193.90
(2) (am) Any rules promulgated by the department under par. (a) that
2establish setback requirements or odor and air emissions standards for waste
3storage structures do not apply to any of the following:
SB808,8,44
1. A structure used to collect and store waste under a livestock housing facility.
SB808,8,65
2. A manure digester consisting of a sealed structure in which manure is
6subjected to managed biological decomposition.
SB808,12
7Section 12
. 93.90 (2) (c) of the statutes is repealed.
SB808,13
8Section 13
. 93.90 (2) (d) of the statutes is amended to read:
SB808,8,119
93.90
(2) (d) The
secretary shall appoint a committee of experts to livestock
10facility technical review board shall advise the department on the promulgation of
11the rules under par. (a)
and on the review of rules under par. (c).
SB808,14
12Section 14
. 93.90 (2) (e) 2. of the statutes is amended to read:
SB808,8,1513
93.90
(2) (e) 2. Specify the information and documentation that must be
14included in a record of decision making
, written findings, and conclusions under
sub.
15(4) (b). par. (f) 7.
SB808,15
16Section
15. 93.90 (2) (f) of the statutes is created to read:
SB808,8,2017
93.90
(2) (f) 1. If a local approval under sub. (3) (g) is required for a new or
18expanded livestock facility, the operator of the facility shall submit an application for
19approval to the department. The department may establish a fee not exceeding $750
20for reviewing applications under this paragraph.
SB808,8,2421
2. No later than 2 business days after the department receives an application
22for approval, the department shall provide notification and a copy of the application
23for approval to the political subdivisions in which the property that is the subject of
24the application for approval is located.
SB808,9,11
13. No later than 14 days after the department receives an application for
2approval, the department shall notify the applicant whether the application for
3approval is complete and, if it is not complete, what supplementary information is
4needed to complete the application for approval. Upon receipt of any supplementary
5information from the applicant, the department shall have 7 days to review the
6information and notify the applicant whether the application for approval is
7complete and, if it is not complete, what additional supplementary information is
8needed to complete the application for approval. As soon as the department deems
9the application for approval complete, the department shall notify the applicant and
10the political subdivisions in which the property that is the subject of the application
11is located.
SB808,9,1512
4. Beginning on the first day after the department deems an application for
13approval complete, the department shall provide 30 days for receiving public
14comments on the application for approval. The department may hold a public
15hearing during the public comment period.
SB808,9,1716
5. a. The department shall approve or disapprove an application for approval
17no more than 10 days after the close of the public comment period under subd. 4.
SB808,9,2018
b. Except as provided in subd. 5. c., the department shall approve an
19application for approval if the proposed livestock facility siting or expansion satisfies
20the standards promulgated by rule under sub. (2) (a).
SB808,9,2421
c. If an application for approval involves a proposed livestock facility siting or
22expansion located in a political subdivision that enacts a requirement under sub. (3)
23(i) 1., the department shall approve the facility's application for approval if the
24facility satisfies the requirements enacted under sub. (3) (i) 1. and standards
1promulgated by rule under sub. (2) (a) that are consistent with the requirements
2enacted under sub. (3) (i) 1.
SB808,11,83
6. Notwithstanding subd. 5. a., if the department of natural resources notifies
4the department of agriculture, trade and consumer protection that the facility that
5is proposed for expansion by the applicant has been the subject of 2 or more notices
6of violation within the preceding 18 months that allege violations concerning actual
7discharges of manure or process wastewaters from the facility in violation of ch. 283,
8any rule promulgated under ch. 283, or any permit issued under ch. 283, the
9department of agriculture, trade and consumer protection is not required to approve
10or disapprove the application for approval within 10 days of the close of the public
11comment period under subd. 4., unless the department of agriculture, trade and
12consumer protection concludes that the application is consistent with resolving the
13notices of violation. The department of agriculture, trade and consumer protection
14shall consult with the department of natural resources after receiving notification
15under this subdivision. The department of natural resources shall make a written
16determination of whether the facility remains in significant noncompliance as
17alleged in the notices of violation and shall provide a copy of the written
18determination to the department of agriculture, trade and consumer protection and
19the applicant within 30 days of the close of the public comment period under subd.
204. If the written determination of the department of natural resources is that the
21facility remains in significant noncompliance, not later than every 30 days thereafter
22the department of natural resources shall make and submit to the department of
23agriculture, trade and consumer protection an additional written determination of
24whether the facility remains in significant noncompliance until the department of
25natural resources makes and submits a written determination that the facility is no
1longer in significant noncompliance. Notwithstanding subd. 5. a., if this subdivision
2applies, the department of agriculture, trade and consumer protection shall approve
3or disapprove an application for approval no more than 10 days after the department
4of natural resources provides the department of agriculture, trade and consumer
5protection with its written determination that the facility does not remain in
6significant noncompliance as alleged in the notices of violation. This subdivision
7does not apply to an application for approval if the department of natural resources
8determines that the applicant will address all actual or alleged violations.
SB808,11,149
7. The department shall make written findings of fact and conclusions of law
10in support of its decision on an application for approval and shall make a record of
11its decision making on an application for approval, including a recording of any
12public hearing, copies of documents submitted at any public hearing or during the
13public comment period under subd. 4., and copies of any other documents provided
14to the department in connection with the application for approval.
SB808,11,1815
8. The department shall provide notice of its decision to the applicant, the
16political subdivisions in which the property that is the subject of the application for
17approval is located, and any other party that submitted written comments during the
18public comment period under subd. 4.
SB808,16
19Section 16
. 93.90 (2m) of the statutes is created to read:
SB808,11,2520
93.90
(2m) Restriction on setbacks for livestock structures and waste
21storage structures. (a) If a political subdivision establishes a setback requirement
22measured from the nearest point of a highway right-of-way that applies to a
23livestock structure, the setback requirement may not require that the livestock
24structure be located more than 100 feet from the nearest point of any highway
25right-of-way.