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 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 manure storage facility standard 313 (January, 2014).
• NRCS technical guide composting facility standard 317 (January, 2017).
• NRCS technical guide waste facility closure standard 360 (March, 2013).
• NRCS technical guide anaerobic digester standard 366 (August, 2011).
• NRCS technical guide roofs and covers standard 367 (April, 2016).
• NRCS technical guide windbreak/shelterbelt establishment standard 380 (October, 2016).
• NRCS technical guide nutrient management standard 590 (December, 2015).
• NRCS technical guide feed management standard 592 (July, 2016).
• 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, 2016).
• NRCS Wisconsin Conservation Planning Technical Note WI-1, “Nutrient Management” (February, 2016).
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 livestock structures, location on property, and odor management, which are not covered by a WPDES permit. The siting standards, as well as related standards under nonpoint rules, incorporate the most current technical standards developed by NRCS. NRCS sets national standards, which are modified by each state for local use. Wisconsin NRCS coordinates its standard-setting process with the Department, DNR, and others. To promote consistency, federal, state and local governments incorporate the same technical standards in the cost-share and other programs. For example, in 2015, NRCS issued a revised technical standard for nutrient management planning, referred to as the NRCS 590. ATCP 50 has been revised to incorporate the most current 590 standard into cost-share and other program areas. The EPA and DNR incorporate NRCS 590 as a mandatory standard for CAFOs.
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.
The USDA 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 USDA:
• Environmental Quality Incentives Program (“EQIP”)
• Conservation Reserve Program (“CRP”)
• Conservation Reserve Enhancement Program (“CREP”)
• Conservation Stewardship Program (“CSP”)
• Agricultural Conservation Easement Program (“ACEP”)
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 pre-empt 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. The law, which has been 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 information 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 1000 AU’s.
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.
Michigan
In 1999, the Michigan provided “right to farm” protections for farmers who meet “generally accepted agricultural management practices” (“GAAMPS”). The Right to Farm Act (“RFTA”) prevents local governments from adopting ordinances that prohibit farming protected under state law, and protects farmers who comply with GAAMPS against nuisance actions. While other GAAMPs may apply to livestock operations, new and expanding livestock facilities must follow GAAMPs for site selection and odor control, and develop plans that comply with these standards. Most farms need to receive state verification of GAAMP compliance to maintain RFTA protections and avoid other state actions. Site planning includes meeting setback requirements and evaluation of odor management practices. Setbacks can range from 125 to 1,500 feet, depending on the facility size, type of construction (e.g. new or expansion) and type of neighbors, and may be reduced if odor management practices are employed. Odor management plans also may be required. Operations must have a plan to properly manage and utilize manure, and design storage facilities according to technical standards. Producers must also prepare emergency action and other plans. Michigan maintains a compliance system to verify and correct problems to ensure that farms remain in compliance with GAAMPs.
Minnesota
The Minnesota Pollution Control Agency administers rules regulating livestock feedlots, and may delegate authority to counties to administer this program. State feedlot standards cover liquid manure storage systems, water quality setbacks, expansion limitations, and air emissions. Operation and maintenance standards cover discharges from feedlots and feed storage, and land application of manure. The extent of a livestock facility’s obligations depends on its size, and other factors such as pollution risks.
In addition, Minnesota is among the states that still allow local permitting of livestock facilities using conditional use permits. Permits issued under local ordinances may impose requirements related to facility size including size caps, minimum acreage requirements, setbacks from neighboring land uses, and odor management. The Minnesota Dept. of Agriculture maintains websites that generally describe local permit requirements, http://www.mda.state.mn.us/animals/feedlots/feedlot-dmt/local-authority.aspx, and provides information about the extent of regulation in each county, http://www.mda.state.mn.us/animals/livestock/local-livestock-ordinances.aspx. According to the 2007 Summary of Animal-Related Ordinances, 32 county zoning ordinances used simple setback standards, while 22 used a sliding scale. The most common setback from single family residences was ¼ mile, while ½ mile was the common setback for more dense land uses such as schools. Twelve counties addressed odor using the Odor From Feedlots Setback Estimation Tool (“OFFSET”), which estimates odor impacts based on livestock type, facility size and type, separation distances, and odor control practices. These counties either incorporated OFFSET into their ordinances or use OFFSET as part of their planning process to predict odor to help determine separation distances. The survey showed that 20 counties limited the number of animals housed in a feedlot, setting caps between 1,500 to 5,000 AU’s. Minnesota has enacted legislation requiring reciprocal setbacks of non-farm land uses whenever a local jurisdiction requires livestock facility setbacks. Wisconsin has no comparable requirement. Reciprocal setbacks are designed to protect livestock facilities, once approved, against encroaching development. Summary of Factual Data and Analytical Methodologies
This rule incorporates and is consistent with performance and conservation practice standards developed as part of recent revisions to ATCP 50 and NR 151. In addition, this rule follows the practice of the nonpoint rules by referencing the most current technical standards developed by NRCS for installation of conservation practices including the incorporation of the 2015 standard for nutrient management planning. In developing technical and other standards, the responsible government agencies have followed similar methodologies to ensure the use of the best available science, address feasibility considerations, and secure input for stakeholders. For example, the most recent nutrient management standard incorporated into ATCP 50 underwent a rigorous process of development spearheaded by NRCS with technical assistance from agronomists, farmers, UW scientists, and agency staff. The NRCS technical standards for managing runoff from animal lots and feed storage, which are incorporated into this rule, underwent the same rigorous and balanced process as part of their development. As with the original 2006 version of ATCP 51, this rule revision relies on OFFSET in developing the framework for managing odors and establishing setbacks. As mandated under Wis. Stat. § 93.90(2)(d), the Department received advice from an expert committee for improvement of the standards in the siting rule, and its recommendations included updating technical standards. While the experts approached their assignment from a scientific perspective, their recommendations considered economic and other factors listed in Wis. Stat. § 93.90 (2) (b), relevant to the development of siting standards. Analysis and Supporting Documents Used to Determine Effect on Small Business or in Preparation of an Economic Impact Analysis
In preparing its analysis and supporting documentation, the Department consulted with stakeholders, considered the 2015 final report of the Technical Expert Committee, and estimated costs using a methodology similar to the one used when ATCP 51 was originally adopted in 2006.
Effects on Small Business
The proposed rule changes will have a very limited impact on farms statewide, affecting less than 1 percent of livestock operations in the state. Based on past trends in the livestock industry and local permitting activity, which may not be predictive of future activity, it is estimated that in the next ten years the revised rule will impact no more 150 new or expanding livestock facilities statewide that are issued local permits for the first time or are reissued permits [100 new permits (10 per year) plus 70 permit reissuances (7 per year) minus 20 that will seek more than one permit reissuance]. Since this rule change will have virtually no impacts on 85 new and expanding livestock facilities that are CAFOs, and are required by their DNR permits to meet the higher water quality standards in the revised siting rule, its impact will be most significant for 55 non-CAFOs. It is estimated that the affected livestock operations, nearly all of which are small businesses, will incur an additional $1.05 - $1.16 million in annual costs to comply with the changes in this rule revision over a 10 year period.
This rule will have a small, but positive impact on businesses other than livestock operators. Those businesses, many of which are small businesses, include nutrient management planners, soil testing laboratories, farm supply organizations, agricultural engineering practitioners, and contractors installing farm conservation practices.
The Initial Regulatory Flexibility Analysis, which accompanies this rule, provides a more complete analysis of the issue, including a detailed breakdown of increased costs for livestock operators.
Department Contact
Chris Clayton
Department of Agriculture, Trade and Consumer Protection
