The siting rule spells out procedures and timetables for local approval or disapproval of permit applications, consistent with the siting law. It also mandates the use of state-approved permit application forms, which are designed to elicit information needed to show compliance with applicable siting standards.
Under the siting law, the Department must review the standards in the siting rule at least once every 4 years. Since 2006 when the siting rule was adopted, the Department has conducted 2 of these reviews, with the most recent review initiated in 2014. As part of the 2014 review, the Department conducted listening sessions with environmental, farm and government stakeholder groups. The Department’s Secretary also appointed a committee of technical experts to advise the Department on possible changes to the siting standards. The expert committee provided its report to the Secretary in September, 2015.
Proposed policies. This proposed rule may modify the siting rule as follows:
• Ensure that the water quality standards, including related Natural Resources Conservation Service (“NRCS”) technical standards in the siting rule, are consistent with NR 151 and ATCP 50. The Department may incorporate the latest version of NRCS nutrient management technical standard 590 into ATCP 51, determining which aspects of the standard to include. The Department may consider whether its adoption of certain standards will require livestock facilities permitted under the siting rule to comply with greater requirements than those permitted under ch. NR 243, Wis. Adm. Code. • Modify siting standards (subch. II of ATCP 51) consistent with the requirements in s. 93.90(2), Stats. The Department will consider the technical recommendations of the 2014 expert committee in making any changes. If the Department changes any siting standards, it will include provisions to accommodate existing operations. • Modify the procedures (subchs. I and III of ATCP 51) that local governments must follow in issuing a siting permit under a zoning or licensing ordinance. The rule may address local procedures used to determinate siting application completeness, siting permit modifications to ensure compliance with the law, the use of checklists to monitor facility compliance, and the fees local governments charge for siting permit applications and permit modifications.
• Modify local permit application forms and worksheets to ensure that they are clear, complete, and elicit information which documents compliance with applicable siting standards
• Make other changes, clarifications and updates as necessary to improve implementation of the siting rule, consistent with the requirements in s. 93.90(2), Stats.
Policy Alternatives and Justification. If the Department takes no action on ATCP 51, current rules will remain in effect. By proceeding with rulemaking, the Department will address the following:
• Some current standards and rule requirements are not consistent with requirements in related administrative rules, NR 151 and ATCP 50.
• Some current rule provisions, including technical standards, are outdated and may not reflect the best available science.
• The current rule does not account for the technical recommendations of the expert committee.
• Some current siting standards or procedures need modification to address implementation challenges, to better meet the needs of environmental, farm and government stakeholders.
• Some current rule provisions do not adequately address changes in conditions facing livestock operators and local governments.
• Some current rule provisions may also hinder future coordination of federal, state and local conservation programs.
3. Statutory authority for the rule (including the statutory citation and language): Sections 93.07 (1) and 93.90(2) and (7), Stats., 93.07 Department duties. It shall be the duty of the department:
(1) REGULATIONS. To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of chs. 93 to 100, which regulations shall have the force of law. 93.90(2)(a)(a) For the purposes of this section, the department shall promulgate rules specifying standards for siting and expanding livestock facilities. In promulgating the rules, the department may incorporate by cross-reference provisions contained in rules promulgated under ss. 92.05 (3) (c) and (k), 92.14 (8), 92.16, and 281.16 (3) and ch. 283. The department may not promulgate rules under this paragraph that conflict with rules promulgated under s. 92.05 (3) (c) or (k), 92.14 (8), 92.16, or 281.16 (3) or ch. 283. 93.90(2)(b) (b) In promulgating rules under par. (a), the department shall consider whether the proposed standards, other than those incorporated by cross-reference, are all of the following: 93.90(2)(b)4. 4. Based on available scientific information that has been subjected to peer review. 93.90(2)(b)5. 5. Designed to promote the growth and viability of animal agriculture in this state. 93.90(2)(b)6. 6. Designed to balance the economic viability of farm operations with protecting natural resources and other community interests. 93.90(2)(c) (c) The department shall review rules promulgated under par. (a) at least once every 4 years. 93.90(2)(d) (d) The secretary shall appoint a committee of experts to advise the department on the promulgation of the rules under par. (a) and on the review of rules under par. (c). 93.90(2)(e) (e) In addition to the rules under par. (a), the department shall promulgate rules that do all of the following: 93.90(2)(e)1. 1. Specify the information and documentation that must be provided in an application for approval in order to demonstrate that a livestock facility siting or expansion complies with applicable state standards under sub. (2) (a). 93.90(2)(e)2. 2. Specify the information and documentation that must be included in a record of decision making under sub. (4) (b). 4. Estimate of the amount of time that state employees will spend to develop the rule and of other resources necessary to develop the rule:
The Department estimates that it will use approximately 1.0 FTE staff to develop this rule. This includes planning and preliminary activities, evaluation of recommendations of technical expert committee meetings, drafting rules and related documents, holding public hearings, analyzing and responding to hearing comments, presenting proposed rules to the ATCP Board and other government entities, and communication with stakeholders. The Department will use existing staff to develop this rule. The estimated staff time reflects the complex and sensitive subject matter of the rule, the intensity of interest among stakeholders, and the complex interaction with state and local regulatory programs.
5. Description of all entities that may be impacted by the rule:
This rule primarily affects the following entities:
• Counties, towns and municipalities that require local approval for the siting of livestock facilities. As of February 2014, the date of the last formal siting report to the ATCP Board, 24 counties, 61 towns, two cities (Berlin and Fitchburg), and two villages (Germantown and Richfield) have adopted siting ordinances.
• Livestock operators who propose to construct new or expanded livestock facilities that exceed applicable minimum size thresholds (typically 500 animal units) in counties, towns or municipalities that have adopted livestock facility siting ordinances. As of the February 2014 report, 113 livestock facilities received local permits. Nearly half of those facilities exceeded 1,000 animal units, and were therefore required to obtain a Wisconsin Pollution • Discharge Elimination System (“WPDES”) permit from the Wisconsin Department of Natural Resources (“DNR”), in addition to a local siting permit.
This rule may have lesser impact on providers of products and services to livestock facilities, such as agricultural engineers and practitioners, crop consultants, construction contractors, farm supply businesses and manure haulers. This rule may increase demand for some products and services, and may require product and service providers to adapt to potential rule changes.
6. Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule:
Nearly half of livestock operations affected by this rule are also subject to regulation under the federal Clean Water Act. Under delegated authority from U.S. Environmental Protection Agency (EPA), DNR adopted ch. NR 243, Wis. Adm. Code, to regulate water pollution discharges from livestock facilities. Under NR 243, livestock facilities with over 1,000 animal units must obtain a DNR WPDES permit. Permit holders must meet standards designed to ensure that the proposed livestock facility will not pollute surface water or groundwater. Livestock facilities that have a WPDES permit are deemed to comply with some of the Department’s 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 livestock structures, location on property, and odor management, which are not covered by WPDES permit. 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 (EPCRA). 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.
Federal programs 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. The following relevant programs are administered by the U.S. Department of Agriculture:
• Environmental Quality Incentives Program (EQIP)
• Conservation Reserve Program (CRP)
• Conservation Reserve Enhancement Program (CREP)
• Conservation Stewardship Program (CSP)
• Agricultural Conservation Easement Program (ACEP).
7. Anticipated economic impact
The Department expects the proposed rule to have minimal economic impact statewide and locally, with moderate impacts for some of the livestock facilities regulated under siting permits. Many farmers affected by this rule qualify as “small businesses.”
