DATCP Docket No. 15-R-12 Proposed Hearing Draft
Clearinghouse Rule No. May 26, 2017
PROPOSED ORDER
OF THE STATE OF WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
ADOPTING RULES
The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes the following permanent rule to repeal ATCP 51.01 (2) and (Note), ATCP 51.01 (13) (Note), ATCP 51.01 (16), ATCP 51.01 (26) (Note), ATCP 51.12 (6) (Note), ATCP 51.30 (3) (Note), and ATCP 51.34 (3) (a) (Note) to renumber ATCP 51.06 (2) (intro.), (a) and (b), to amend ch. ATCP 51 (intro.) (Note), ATCP 51.01 (3), ATCP 51.01 (5) (Note), ATCP 51.01 (7), ATCP 51.01 (19), ATCP 51.01 (21)(intro.), ATCP 51.01 (23), ATCP 51.01 (24), ATCP 51.01 (29), ATCP 51.01 (33), ATCP 51.01 (36) (b) and (c), ATCP 51.01 (42), ATCP 51.01 (43), ATCP 51.01 (44) (intro.), ATCP 50.02 (b) (Note), ATCP 51.04 (Note), ATCP 51.08 (1) (b) (Note), ATCP 51.10 (1) ATCP 51.10 (3) (d) (Note), ATCP 51.10 (4), ATCP 51.30 (5), ATCP 51.34 (3) (a), ATCP 51.34 (4) (intro.), ATCP 51.34 (4) (b) 2., and ATCP 51.34 (5) (a) 2. and 3.; to repeal and recreate ATCP 51.08 (2), ATCP 51.10 (2) and (Note), ATCP 51.12 (1) and (2), ATCP 51.14, ATCP 51.16, ATCP 51.18, ATCP 51.20, ATCP 51.30 (4) and (Note), ATCP 51.34 (4) (a), ATCP 51.34 (5) (b) and (c), Chapter ATCP 51, Appendix A, Application Form and Worksheets, Chapter ATCP 51, Appendix B, Request for Modification of a Local Approval, and Chapter ATCP 51, Appendix C, Notice To Adjacent Property Owners; and to create ATCP 51.01 (19m) and (Note), ATCP 51.01 (23m), ATCP 51.01 (33m), ATCP 51.01 (38m), ATCP 51.01 (44) (c), ATCP 51.01 (44m), ATCP 51.06 (b), ATCP 51.10 (4) (Note), ATCP 51.12 (2m) (a) and (b) and (Note), ATCP 51.30 (1) (Note), ATCP 51.30 (4m), ATCP 51.34 (4m), and ATCP 51.34 (5) (a) 3. (Note), relating to livestock facility siting and affecting small business. Analysis Prepared by the Department of
Agriculture, Trade and Consumer Protection
First adopted in May 2006, Wis. Admin. Code ch. ATCP 51 (“ATCP 51”) established the statewide framework of standards and procedures required to implement Wisconsin’s livestock facility siting law, Wis. Stat. § 93.90. The requirements only apply to livestock operators located in jurisdictions that have adopted ordinances requiring permits for new or expanding livestock facilities that exceed a certain size (commonly 500 animal units). The Department of Agriculture, Trade and Consumer Protection (“Department”) is required to review Wis. Admin. Code Ch. ATCP 51 every four years to ensure that the goals of the siting law are being achieved. To this end, the Department convened a Technical Expert Committee that provided recommendations regarding changes to the siting rule. This proposed rule revision is intended to ensure consistency among related rules (Wis. Admin. Code chs. NR 151 and ATCP 50, respectively referred to as “NR 151” and “ATCP 50”), which were revised to implement a new nutrient management technical standard and additional farm runoff standards designed to better control discharges of process wastewater, and meet phosphorus index targets for nutrient management. The ATCP 51 revision also addresses issues arising out of the mandatory four year review of this rule. The proposed revision retains the essential regulatory framework, including the core water quality standards. Improvements in standards are intended to advance the statutory goal of “providing uniform regulation of livestock facilities” and better balance the factors listed in Wis. Stat. § 93.90(2)(b), which the Department must use to establish state standards. Statutes Interpreted
Statutes interpreted: Wis. Stats. §§ 92.05(3)(c) and (k), 93.90 and 281.16(3)(b). Statutory Authority
Statutory authority: Wis. Stats. §§ 93.07(1), 92.05(3)(c) and (k), 92.14(8), 93.90(2) and 281.16(3)(b). Explanation of Agency Authority
The Department has general authority to adopt rules interpreting statutes under its jurisdiction (see Wis. Stat. § 93.07(1)). The Department is specifically authorized to adopt farm conservation standards (see Wis. Stats. §§ 92.05(3)(k) and 281.16(3)(b)). Under Wis. Stat. § 93.90, the Department must do all of the following by rule: • Develop and update water quality, odor, setback, and other standards for new or expanding livestock facilities that require a permit or other local approval. The standards may incorporate, and may not conflict with, current statutes and rules regulating livestock operations including the performance standards, conservation practices, and technical standards that apply under nonpoint source pollution programs.
• Review ATCP 51 standards and other requirements at least every 4 years, in consultation with a committee of experts.
• Evaluate whether existing or proposed standards are: (1) protective of public health or safety; (2) practical and workable; (3) cost-effective; (4) objective; (5) based on scientific information; (6) designed to promote the growth and viability of animal agriculture; (7) designed to balance the economic viability of farm operations with natural resource protection and other community interests; and (8) usable by local officials.
• Develop and update application materials and other submissions that livestock operators must provide when applying for local approval, to show that a new or expanding livestock facility will comply with the standards adopted by the Department.
• Specify the information that a local government must include in its decision making record. A local decision must include findings of fact, and must be based on information in the record. This record will be important if an aggrieved party appeals the local government’s decision.
Related Statutes and Rules
Plain Language Analysis
General Background
This rule:
• Updates the water quality standards, including related Natural Resources Conservation Service (“NRCS”) technical standards, to ensure consistency with provisions in NR 151 and ATCP 50, including incorporation of the 2015 NRCS standard for nutrient management, and the 2016 NRCS standards for waste treatment and vegetated treatment areas.
• Modifies standards (subch. II of ATCP 51) consistent with the requirements in Wis. Stat. § 93.90(2), based on the technical recommendations of the 2014 Technical Expert Committee and stakeholder input. Key changes include modifications to setback and odor standards. • Modifies 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 including those used to determine completeness of siting applications, modifications to siting permits, the use of checklists to monitor facility compliance, and the fees local governments charge for permit modifications.
• Modifies local permit application forms and worksheets to reflect changes in requirements and to ensure that they are clear, complete, and elicit information that documents compliance with applicable siting standards.
• Makes other changes, clarifications and updates as necessary to improve implementation of the siting rule, consistent with the requirements in Wis. Stat. § 93.90(2). Contents of this Rule
The following is an analysis of the rule by topics.
Livestock Facilities, Structures, and other Definitions
This rule clarifies that a livestock facility includes the livestock, livestock structures, and parcels on land upon which livestock facility is located, except for pastures and winter grazing areas. It excludes a concentration of 50 or fewer calf hutches from the definition of an animal lot.
Concentrations of 50 or more hutches must meet setback and runoff management standards. Storage structures designed exclusively for process wastewater are excluded from the design and setback requirements that apply to manure storage structures.
This rule eliminates definitions related to the prior odor standard, including affected neighbor, and high use building.
