Scope Statements
Agriculture, Trade and Consumer Protection
Subject
Revises Chapter
ATCP 51, relating to livestock facility siting.
Objective of the Rule
This rule may revise standards and procedures for local approval of new or expanded livestock facilities, within limits prescribed by Wisconsin's livestock facility siting law, s.
93.90, Stats.
Policy Analysis
State Law Governs Local Siting Decisions
Wisconsin's livestock facility siting law (“siting law"), s.
93.90, Stats., is designed to provide a clear, predictable, and relatively uniform framework for the siting of livestock facilities in this state. Under the siting law, local governments
may by ordinance require siting permits for livestock facilities that will have 500 or more “animal units." With limited exceptions, the law prohibits local governments from requiring siting permits for smaller livestock facilities.
If a siting permit is required by local ordinance, the local government must grant or deny the permit based on standards that DATCP adopts by rule. Local governments have some authority to adopt additional standards, but only if those standards are adopted by ordinance, are based on scientific evidence, and are necessary to protect public health or safety.
DATCP Rules Implement the Law
In 2006, DATCP adopted rules (ch.
ATCP 51, Wis. Adm. Code) to implement the siting law. The rules spell out detailed technical standards for local approval of livestock facilities, including standards related to:
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Livestock Structures.
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Location on Property.
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Odor and Air Emissions.
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Nutrient Management.
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Waste Storage Facilities.
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Runoff Management.
This rule may modify siting standards, as necessary, consistent with the siting law. DATCP will consider the recommendations of the technical expert committee before making any modifications to the standards.
DNR Permit Required for Some Facilities
Livestock facilities over 1,000 animal units must have a Wisconsin Pollution Discharge Elimination System (“WPDES") permit from the Wisconsin Department of Natural Resources (“DNR"). The WPDES permit requirement applies,
regardless of whether a local siting permit is required. Applicants for a WPDES permit must meet standards specified in ch.
NR 243, Wis. Adm. Code. WPDES permit standards are designed to ensure that the proposed livestock facility will not pollute surface water or groundwater. WPDES permits do not address other issues such as odor management.
Livestock facilities that have a WPDES permit are deemed to comply with some of DATCP's standards for the issuance of local siting permits, including standards for nutrient management, waste storage facilities and runoff management (the DATCP standards parallel WPDES permit standards, and have a similar purpose – although WPDES standards are stricter in some respects). But to qualify for a local permit, a WPDES permit holder must also demonstrate compliance with DATCP standards for livestock structures, location on property, and odor management.
Local Permit Application Forms and Procedures
Current DATCP rules include detailed local permit application forms, which are designed to elicit information needed to show compliance with applicable siting standards. The rules also spell out procedures and timetables for local approval or disapproval, consistent with the siting law. This rule may modify current forms and procedures, as necessary, consistent with the siting law.
DATCP Rule Review
Under the siting law, DATCP must review its rule standards at least once every 4 years. DATCP initiated a 4-year review in 2010. As part of the review, DATCP conducted statewide listening sessions and received over 860 comments (from varying perspectives). The DATCP Secretary also appointed a committee of technical experts to advise DATCP on possible changes to the siting standards.
DATCP will consider the recommendations of the technical advisory committee before proposing any possible rule changes. This rule may modify siting standards, as necessary, consistent with the siting law.
Rules Must Be Consistent with the Siting Law
DATCP may not, by rule, change or contradict the siting law itself. In proposing rules, DATCP must be mindful of the statutory goal of “providing uniform regulation of livestock facilities." Under the siting law, DATCP must also consider whether proposed standards are:
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Protective of public health or safety.
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Practical and workable.
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Cost-effective.
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Objective.
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Based on available scientific information that has been subjected to peer review.
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Designed to promote the growth and viability of animal agriculture in this state.
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Designed to balance the economic viability of farm operations with protecting natural resources and other community interests.
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Usable by officials of political subdivisions.
Pursuant to s.
227.114, Stats., DATCP must also consider “small business" impacts, and ways to minimize adverse impacts on “small business."
Policy Alternatives
Rule Changes
The siting law requires DATCP to review its rule standards every 4 years. In consultation with a technical advisory committee, DATCP may propose rule amendments to modify siting standards, within limits set by the siting law.
Local Ordinances
Under the siting law, the application of DATCP siting standards depends on the existence of a local livestock facility siting ordinance. According to the siting law, DATCP standards apply only in counties, towns and municipalities that have adopted a siting ordinance. The siting law allows, but does not require, local governments to adopt siting ordinances.
If a locality fails to adopt a livestock facility siting ordinance:
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No local siting permit is required. A state WPDES permit is required for facilities over 1,000 animal units, but that permit only addresses water quality issues (not other issues such as odor management).
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DATCP siting standards do not apply (WPDES permit standards apply to facilities over 1,000 animal units).
In a locality that has no siting ordinance, an operator is essentially free to site a livestock facility of any size, without having to get a local permit or meet DATCP standards. The lack of local ordinances in some localities may also create an uneven “patchwork" of regulation across the state. By adopting a siting ordinance, a local government may exercise more control over the siting of livestock facilities.
Legislative Issues
Some of the issues raised by participants at DATCP's public listening sessions are beyond the scope of DATCP's rulemaking authority. For example, some participants argued that local governments should have unfettered discretion to refuse siting permits for livestock facilities, even when those facilities meet applicable DATCP (and DNR) standards. Others argued that DATCP should mandate livestock facility siting standards in counties, towns and municipalities that have elected not to require siting permits for livestock facilities. DATCP lacks authority to make either of those changes by rule. Changes of that sort would require legislative changes to the siting law.
Statutory Authority
Comparison with Federal Regulations
Some of the livestock operations affected by this rule are also subject to regulation under the federal Clean Air Act and the federal Clean Water Act. In Wisconsin, DNR administers those federal laws under authority delegated by the U.S. Environmental Protection Agency, subject to EPA oversight.
Clean Air Act
DNR has adopted air pollution regulations under ch.
NR 445, Wis. Adm. Code. DNR proposes to incorporate, into NR 445, best management practices for mitigating air pollution from livestock facilities. DNR is currently consulting with an advisory council, and has not yet proposed specific rule changes. The DNR rules will address hazardous air pollutants (such as hydrogen sulfide), and will
not address
odor management as such.
DATCP's current livestock facility siting rule addresses odor management, but does not address air pollutants (such hydrogen sulfide) which DNR plans to address in its rules. DATCP and DNR have agreed to coordinate the development and implementation of best management practices to mitigate air pollution from livestock facilities.
Clean Water Act
