Chapter ATCP 51

ATCP 51.20(3)(a) (a) Feed storage shall be managed to prevent any significant discharge of leachate or polluted runoff from stored feed to waters of the state.

ATCP 51.20(3)(b) (b) If an existing paved area may be used, without substantial alteration, to store or handle feed with a 70% or higher moisture content:

ATCP 51.20(3)(b)1. 1. Surface water runoff shall be diverted from entering the paved area.

ATCP 51.20(3)(b)2. 2. Surface discharge of leachate from stored feed shall be collected before it leaves the paved area, if the paved area covers more than one acre. Collected leachate shall be stored and disposed of in a manner that prevents discharge to waters of the state.

ATCP 51.20 Note Note: Feed leachate is a potentially serious water pollutant. Paved areas include paved feed storage bunkers and handling areas. Collected leachate may, for example, be transferred to waste storage and applied to land at agronomic rates.

ATCP 51.20(3)(c) (c) A new or substantially altered feed storage structure, including any building, bunker, silo or paved area used for feed storage or handling, shall be designed, constructed and maintained to the following standards if it may used to store or handle feed with a 70% or higher moisture content:

ATCP 51.20(3)(c)1. 1. Surface water runoff shall be diverted from entering the feed storage structure.

ATCP 51.20(3)(c)2. 2. Surface discharge of leachate shall be collected before it leaves the feed storage structure.

ATCP 51.20(3)(c)3. 3. The top of the feed storage structure floor shall be at least 3 vertical feet from groundwater and bedrock.

ATCP 51.20(3)(c)4. 4. If the feed storage structure covers more than 10,000 square feet, it shall have an effective subsurface system to collect leachate that may leak through the structure floor. The system shall consist of drainfill material, a tile drainage network, and an effective sub-liner as specified in Appendix A, worksheet 5, section II.C.

ATCP 51.20(3)(c)5. 5. Collected leachate shall be stored and disposed of in a manner that prevents discharge to surface water or groundwater.

ATCP 51.20 Note Note: Collected leachate may, for example, be transferred to waste storage and applied to land at agronomic rates.

ATCP 51.20(4) (4) Clean water diversion. Runoff from a livestock facility shall be diverted from contact with animal lots, waste storage facilities, paved feed storage areas and manure piles within 1,000 feet of a navigable lake or 300 feet of a navigable stream.

ATCP 51.20 Note Note: See ss. NR 151.06 and ATCP 50.04 (1). Runoff may be diverted by means of earthen diversions, curbs, gutters, waterways, drains or other practices, as appropriate.

ATCP 51.20(5) (5) Overflow of waste storage facilities. A livestock facility shall be designed, constructed and maintained to prevent overflow of waste storage facilities.

ATCP 51.20 Note Note: Under s. ATCP 51.18 (5), waste storage capacity must be adequate to meet reasonably foreseeable storage needs, based on the operator’s waste and nutrient management strategy under s. ATCP 51.16. See also ss. NR 151.08 (2) and ATCP 50.04 (1).

ATCP 51.20(6) (6) Unconfined manure piles. A livestock facility may not have any unconfined manure piles within 1,000 feet of a navigable lake or 300 feet of a navigable stream.

ATCP 51.20 Note Note: See ss. NR 151.08 (3) and ATCP 50.04 (1).

ATCP 51.20(7) (7) Livestock access to surface waters of the state. A livestock facility shall be designed, constructed and maintained to prevent unrestricted livestock access to surface waters of the state, if that access will prevent adequate vegetative cover on banks adjoining the water. This subsection does not prohibit a properly designed, installed and maintained livestock crossing or machinery crossing.

ATCP 51.20 Note Note: See ss. NR 151.08 (5) and ATCP 50.04 (1).

ATCP 51.20(8) (8) Presumption. For purposes of local approval, a livestock facility is presumed to comply with this section if the application for local approval complies with s. ATCP 51.30.

ATCP 51.20 Note Note: Under s. ATCP 51.30, an application must be complete, credible and internally consistent. An applicant must submit a runoff management worksheet signed by the applicant and a registered professional engineer or certified agricultural engineering practitioner (see Appendix A, worksheet 5). The worksheet shows presumptive compliance with this section. Local approval is conditioned upon compliance in fact (see sub. (9) and s. ATCP 51.34 (4)). The presumption of compliance may be rebutted by clear and convincing evidence in the record (see ss. ATCP 51.34 and 51.36).

ATCP 51.20(9) (9) Deviation from design specifications. Local approval of a livestock facility does not authorize an operator to populate that approved livestock facility if the construction or alteration of an animal lot or feed storage structure deviates materially, and without express authorization from the political subdivision, from design specifications included in the application for local approval.

ATCP 51.20 Note Note: A political subdivision may inspect animal lots or feed storage structures to verify that they are constructed according to specifications included in the application for local approval. This section does not require or prohibit local inspection. A deviation under sub. (9) does not invalidate a local approval, but does prevent the livestock operator from populating the approved livestock facility until the deviation is rectified or approved.

ATCP 51.20(10) (10) Exemption. This section does not apply if all of the following apply:

ATCP 51.20(10)(a) (a) The operator holds a WPDES permit for the same proposed livestock facility, and that permit is based on housing for a number of animal units that is equal to or greater than the number for which the operator seeks local approval.

ATCP 51.20(10)(b) (b) The operator includes a copy of the WPDES permit with the operator’s application for local approval.

ATCP 51.20 History History: CR 05-014: cr. Register April 2006 No. 604, eff. 5-1-06.

subch. III of ch. ATCP 51 Subchapter III — Application and Approval

ATCP 51.30 ATCP 51.30 Application.

ATCP 51.30(1) (1) General. If local approval is required for a new or expanded livestock facility, a person seeking local approval shall complete and file with the political subdivision the application form shown in Appendix A. The application shall include all of the information required by Appendix A and attached worksheets, including any authorized modifications made by the political subdivision under sub. (2). The information contained in the application shall be credible and internally consistent.

ATCP 51.30(2) (2) Local modifications. A political subdivision may not alter the application form shown in Appendix A and attached worksheets, or require any additional information, except that a political subdivision may require information needed to determine compliance with local ordinance standards authorized under s. ATCP 51.10 (3) or 51.12 (1).

ATCP 51.30(3) (3) Additional copies. A political subdivision may require an applicant to submit up to 4 duplicate copies of the original application under sub. (1). Each duplicate copy shall include all of the worksheets, maps and other attachments included in the application, except that it is not required to include engineering design specifications.

ATCP 51.30 Note Note: A political subdivision must file one duplicate copy of the final application and attachments with the department, within 30 days after the political subdivision grants or denies that application. See s. ATCP 51.34 (5). If the political subdivision approves the application, the political subdivision must give the applicant a copy of the approved application, marked “approved.” See s. ATCP 51.34 (3) (b). The applicant may wish to record this documentation with the register of deeds, and convey the documentation to any subsequent purchaser of the livestock facility. Among other things, documentation establishes “odor score” reference points for future expansions. See s. ATCP 51.14 (6).

ATCP 51.30(4) (4) Local fees.

ATCP 51.30(4)(a) (a) A political subdivision may charge an application fee established by local ordinance, not to exceed $1,000, to offset the political subdivision’s costs to review and process an application under sub. (1).

ATCP 51.30 Note Note: Under s. 66.0628, Stats., any fee imposed by a political subdivision must bear a reasonable relationship to the service for which the fee is imposed.

ATCP 51.30(4)(b) (b) A political subdivision may not require an applicant to pay any fee, or post any bond or security with the political subdivision, except as provided in par. (a).

ATCP 51.30 Note Note: If a waste storage facility is abandoned or not properly closed, a political subdivision may seek redress under s. 66.0627 or 254.59, Stats., and other law as appropriate. However, a political subdivision may not require an applicant for local approval to post any bond or security with the application.

ATCP 51.30(5) (5) Complete application. Within 45 days after a political subdivision receives an application under sub. (1), the political subdivision shall notify the applicant whether the application contains everything required under subs. (1) to (4). If the application is not complete, the notice shall specifically describe what else is needed. Within 14 days after the applicant has provided everything required under subs. (1) to (4), the political subdivision shall notify the applicant that the application is complete. A notice of completeness does not constitute an approval of the proposed livestock facility.

ATCP 51.30 Note Note: See s. 93.90 (4) (a), Stats.

ATCP 51.30(6) (6) Notice to adjacent property owners. Within 14 days after a political subdivision issues a notice under sub. (5), the political subdivision shall mail a completed written copy of the notice in Appendix C to the recorded owner of each parcel of land that is adjacent to the proposed livestock facility. The political subdivision shall mail the notice by first class mail. A political subdivision may recover from the livestock facility operator, under sub. (4) (a), its reasonable cost to prepare and mail notices under this subsection. The sum of the costs charged to the livestock operator under this subsection and sub. (4) (a) may not exceed the maximum amount specified in sub. (4) (a). Failure to comply with the notice requirement under this subsection does not invalidate a political subdivision’s approval of a proposed livestock facility, or create a cause of action by a property owner against the political subdivision.

ATCP 51.30 History History: CR 05-014: cr. Register April 2006 No. 604, eff. 5-1-06.

ATCP 51.32 ATCP 51.32 Timely action on application.

ATCP 51.32(1) (1) General. Except as provided in sub. (2), a political subdivision shall grant or deny an application under s. ATCP 51.30 (1) within 90 days after the political subdivision gives notice under s. ATCP 51.30 (5) that the application is complete.

ATCP 51.32(2) (2) Time extension.

ATCP 51.32(2)(a) (a) A political subdivision may extend the time limit in sub. (1) for good cause, including any of the following:

ATCP 51.32(2)(a)1. 1. The political subdivision needs additional information to act on the application.

ATCP 51.32(2)(a)2. 2. The applicant materially modifies the application or agrees to an extension.

ATCP 51.32(2)(b) (b) A political subdivision shall give an applicant written notice of any extension under par. (a). The notice shall state the reason for the extension, and shall specify the extended deadline date by which the political subdivision will act on the application.

ATCP 51.32 Note Note: See s. 93.90(4) (d) and (e), Stats.

ATCP 51.32 History History: CR 05-014: cr. Register April 2006 No. 604, eff. 5-1-06.

ATCP 51.34 ATCP 51.34 Granting or denying an application.

ATCP 51.34(1) (1) Granting an application. Except as provided in sub. (2), a political subdivision shall grant an application under s. ATCP 51.30 (1) if all of the following apply:

ATCP 51.34(1)(a) (a) The application complies with s. ATCP 51.30.

ATCP 51.34(1)(b) (b) The application contains sufficient 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 in subch. II. To the extent that a standard under subch. II vests discretion in a political subdivision, the political subdivision may exercise that discretion.

ATCP 51.34 Note Note: See s. 93.90 (4) (d), Stats.

ATCP 51.34(2) (2) Denying an application. A political subdivision may deny an application under s. ATCP 51.30 if any of the following apply:

ATCP 51.34(2)(a) (a) The application fails to meet the standard for approval under sub. (1).

ATCP 51.34(2)(b) (b) The political subdivision finds, based on other clear and convincing information in the record under s. ATCP 51.36, that the proposed livestock facility fails to comply with an applicable standard under subch. II.

ATCP 51.34(3) (3) Written decision.

ATCP 51.34(3)(a) (a) A political subdivision shall issue its decision under sub. (1) or (2) in writing. The decision shall be based on written findings of fact included in the decision. The findings of fact shall be supported by evidence in the record under s. ATCP 51.36. Findings may be based on presumptions created by this chapter.

ATCP 51.34 Note Note: The Wisconsin Livestock Facility Siting Law, s. 93.90, Stats., provides a new option for “aggrieved persons” to appeal a local livestock facility siting decision. The law does not limit any existing right that any person may have to challenge a local decision in court.

ATCP 51.34 Note Under the Livestock Facility Siting Law, an “aggrieved person” may appeal a local decision to the state Livestock Facility Siting Review Board (“Board”). An “aggrieved person” means an applicant for local approval, or a person who resides or owns land within 2 miles of the proposed livestock facility.

ATCP 51.34 Note An “aggrieved person” may appeal a political subdivision’s decision within 30 days after the political subdivision issues the decision (or, if the “aggrieved person” pursues a local administrative appeal process, within 30 days after that process is complete). The “aggrieved person” may challenge the local decision on the grounds that it incorrectly applied livestock facility siting standards under this chapter, or violated the Livestock Facility Siting Law.

ATCP 51.34 Note When an appeal is filed, the Board must notify the political subdivision. Within 30 days after the political subdivision receives this notice, it must file a certified copy of its decision making record under s. ATCP 51.36 with the Board. The Board must review the local decision based on the evidence in the local record (the Board will not hold a new hearing or accept new evidence). The Board must make its decision within 60 days after it receives the certified local record (it may extend the deadline for good cause).

ATCP 51.34 Note If the Board determines that the challenge is valid, it must reverse the decision of the political subdivision. The Board’s decision is binding on the political subdivision (once any court appeal of the decision is completed, or the appeal time lapses). If the political subdivision fails to comply with the Board’s decision, an “aggrieved person” may bring a court action to enforce the Board’s decision.

ATCP 51.34 Note An “aggrieved person” or the political subdivision may appeal the Board’s decision to circuit court. The circuit court must review the Board’s decision based on the evidence in the local record.

ATCP 51.34(3)(b) (b) If a political subdivision grants an application for local approval, the political subdivision shall issue the local approval to the applicant in writing. The local approval shall include a duplicate copy of the approved application, marked “approved.” The duplicate copy shall include all of the worksheets, maps and other attachments included in the application, except that it is not required to include engineering design specifications.

ATCP 51.34 Note Note: A successful applicant may wish to record the approval documentation under par. (b) with the register of deeds, and convey the documentation to any subsequent purchaser of the livestock facility. Among other things, the documentation establishes “odor score” reference points for future expansions. See s. ATCP 51.14 (6).

ATCP 51.34(4) (4) Terms of approval. An approval under sub. (1) is conditioned on the operator’s compliance with subch. II and representations made in the application for approval. This chapter does not limit a political subdivision’s authority to do any of the following:

ATCP 51.34(4)(a) (a) Monitor compliance.

ATCP 51.34(4)(b) (b) Withdraw an approval, or seek other redress provided by law, if any of the following apply:

ATCP 51.34(4)(b)1. 1. The operator materially misrepresented relevant information in the application for local approval.

ATCP 51.34(4)(b)2. 2. The operator, without authorization from the political subdivision, fails to honor relevant commitments made in the application for local approval. A political subdivision may not withhold authorization, under this subdivision, for reasonable changes that maintain compliance with the standards in subch. II.

ATCP 51.34(4)(b)3. 3. The livestock facility fails to comply with applicable standards in subch. II.

ATCP 51.34 Note Note: A political subdivision should exercise sound judgment in deciding whether to take compliance action under sub. (4) (b). The political subdivision may consider extenuating circumstances, such as adverse weather conditions, that may affect an operator’s ability to comply. A political subdivision may also consider the nature and seriousness of the violation, whether the violation was intentional or accidental, the operator’s compliance history, consistency of enforcement, and whether the problem can be resolved without formal enforcement. Before taking compliance action, a political subdivision should give the operator notice and a reasonable opportunity to demonstrate compliance.

ATCP 51.34(5) (5) Notice to department.

ATCP 51.34(5)(a) (a) Within 30 days after a political subdivision grants or denies an application under this section, or withdraws an approval under sub. (4) (b) or s. ATCP 51.08 (2), the political subdivision shall do all of the following:

ATCP 51.34(5)(a)1. 1. Give the department written notice of its action.

ATCP 51.34(5)(a)2. 2. File with the department a copy of the final application granted or denied, if the political subdivision has granted or denied an application under this section. The copy shall include all of the worksheets, maps and other attachments included in the application, except that it is not required to include engineering design specifications.

ATCP 51.34(5)(a)3. 3. File with the department a copy of the political subdivision’s final notice or order withdrawing a local approval under sub. (4) (b) or s. ATCP 51.08 (2), if the political subdivision has withdrawn a local approval.

ATCP 51.34(5)(b) (b) A political subdivision shall submit the information required under pars. (a) and (b), by mail or e-mail, to the following address:

Wisconsin Department of Agriculture, Trade
and Consumer Protection
Agricultural Resource Management Division
Bureau of Land and Water Resources
P.O. Box 8911
Madison, WI 53708-8911
E-mail: [e-mail]

ATCP 51.34(5)(c) (c) Failure to comply with par. (a) or (b) does not invalidate a political subdivision’s decision to grant or deny an application for local approval, or to withdraw a local approval.

ATCP 51.34 History History: CR 05-014: cr. Register April 2006 No. 604, eff. 5-1-06; correction in (5) (b) made under ss. 13.92 (4) (b) 6. and 35.17, Stats., Register May 2020 No. 773.

ATCP 51.36 ATCP 51.36 Record of decision-making. A political subdivision shall keep a complete written record of its decision-making related to an application under s. ATCP 51.30. The political subdivision shall keep the record for at least 7 years following its decision. The record shall include all of the following:

ATCP 51.36(1) (1) The application under s. ATCP 51.30 (1), and all subsequent additions or amendments to the application.

ATCP 51.36(2) (2) A copy of any notice under s. ATCP 51.30 (5), and copies of any other notices or correspondence that the political subdivision issues in relation to the application.