2019 - 2020 LEGISLATURE

2019 Senate BILL 808

February 11, 2020 - Introduced by Senators Marklein, Bernier, Feyen, LeMahieu and Olsen, cosponsored by Representatives Tranel, Tauchen, Kurtz, Novak, Ballweg, Summerfield and Tusler. Referred to Committee on Agriculture, Revenue and Financial Institutions.

SB808,2,2 An Act to repeal 93.90 (2) (c), 93.90 (3) (a) (intro.), 93.90 (3) (a) 5., 93.90 (3) (a) 6., 93.90 (3) (a) 8., 93.90 (3) (a) 9., 93.90 (3) (ae), 93.90 (3) (am), 93.90 (3) (ar) and 93.90 (4); to renumber 93.90 (3) (a) 1., 93.90 (3) (a) 3., 93.90 (3) (a) 4. and 93.90 (3) (f); to renumber and amend 93.90 (3) (a) 2., 93.90 (3) (b), 93.90 (3) (c), 93.90 (3) (d) and 93.90 (3) (e); to amend 93.90 (1m) (b), 93.90 (2) (a), 93.90 (2) (d), 93.90 (2) (e) 2., 93.90 (5) (title), 93.90 (5) (a), 93.90 (5) (b), 93.90 (5) (bm), 93.90 (5) (c), 93.90 (5) (d) and 93.90 (5) (f); to repeal and recreate 93.90 (3) (title); and to create 15.135 (2), 93.90 (1m) (bm), 93.90 (1m) (dr), 93.90 (1m) (eg), 93.90 (1m) (er), 93.90 (1m) (g), 93.90 (1m) (h), 93.90 (1m) (i), 93.90 (2) (am), 93.90 (2) (f), 93.90 (2m), 93.90 (3) (g), 93.90 (3) (h) (intro.), 93.90 (3) (h) 5., 93.90 (3) (i) 1., 93.90 (3) (i) 2. (intro.), 93.90 (3) (j), 93.90 (3) (L) and 93.90 (6) of the statutes; relating to: livestock facility siting and expansion and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill makes changes concerning the siting and expansion of livestock facilities, including the following:

1. The bill requires the Department of Agriculture, Trade and Consumer Protection to receive and review applications for siting or expanding a livestock facility if a city, village, town, or county (political subdivision) requires approval for siting or expanding a livestock facility in the political subdivision. Within two business days of receiving an application, DATCP must provide a copy of the application to the political subdivisions in which the property that is the subject of the application is located. Within 14 days of receiving an application, DATCP must notify the applicant whether the application is complete and, if not, what supplementary information is needed to complete the application. After DATCP determines that an application is complete, DATCP must provide 30 days for receiving public comments on the application and may hold a public hearing during this period.

Generally, DATCP is required to approve or disapprove the application within 10 days after the close of the public comment period. DATCP must approve the application if the applicant complies with DATCP's livestock facility siting rules, except that if a political subdivision enacts a more stringent requirement as allowed under the bill, DATCP must approve the application if the applicant complies with the political subdivision's more stringent requirements and DATCP's livestock facility siting rules that are consistent with the political subdivision's requirements. In approving or disapproving the application, DATCP must make written findings of fact and conclusions of law and a record of its decision making. DATCP also must provide notice of its decision to the political subdivision, the applicant, and any other party that submitted written comments during the public comment period.

Under current law, an application for siting or expanding a livestock facility is submitted to a political subdivision. Within 45 days, the political subdivision must notify the applicant whether the application is complete and, if not, what information is needed to complete the application. Current law also generally requires a political subdivision to approve or disapprove an application within 90 days of determining that an application is complete.

2. The bill requires a political subdivision to notify all landowners adjacent to the proposed livestock facility siting or expansion and to approve or deny an application within 60 days of receiving notice that DATCP approved an application. Under the bill, a political subdivision may disapprove or prohibit the siting or expansion of a livestock facility only for certain reasons, including any of the following: a) the facility would violate a setback requirement established under the bill; b) the site is in a location that is not an agricultural zoning district; and c) the proposed facility violates a building, electrical, or plumbing code consistent with the state building, electrical, or plumbing code.

3. The bill authorizes aggrieved persons to challenge DATCP's decision on a livestock facility siting or expansion application. The bill defines an “aggrieved person” as a political subdivision in which a proposed livestock facility would be located, an applicant, or a person who lives or owns land within two miles of a proposed livestock facility. Under the bill, the Livestock Facility Siting Review Board determines whether to reverse DATCP's decision on approving or disapproving an application. An aggrieved person may appeal the decision of the board to circuit court. The bill also specifies that a person may challenge the decision of a political subdivision on an application by bringing an action before the board of appeals or adjustment of the political subdivision or the appropriate circuit court.

Under current law, a challenge to a political subdivision's decision on an application is decided by the Livestock Facility Siting Review Board, and the board's decision may be appealed to circuit court.

4. The bill generally prohibits a political subdivision from enforcing or enacting a requirement for approving livestock facility siting or expansion applications that is more stringent than DATCP's rules. Under the bill, a political subdivision may enact a requirement that is more stringent than DATCP's rules if the requirement is based on reasonable and scientifically defensible findings of fact made by the political subdivision that satisfy certain requirements. Current law allows a political subdivision to enforce a standard that is more stringent than DATCP's rules if the political subdivision enacts an ordinance and bases the standard on reasonable and scientifically defensible findings of fact that satisfy certain requirements.

5. Under the bill, if a political subdivision establishes a setback requirement from public roads for livestock structures or waste storage structures, the setback requirement may not require that the structure be located more than 100 feet from public roads.

6. The bill also provides that a livestock structure or waste storage structure constructed after the bill takes effect may be located closer to a property line of another owner's property than a setback requirement established by DATCP's rules if the owner of the land on which the structure is located and the owner of land within the required setback distance enter into a written agreement and record the agreement with the county register of deeds.

7. The bill creates the Livestock Facility Technical Review Board attached to DATCP, consisting of the following members nominated by the secretary of agriculture, trade and consumer protection and confirmed by the senate for five-year terms: a) one member selected from names submitted by the Wisconsin Towns Association; b) one member selected from names submitted by the Wisconsin Counties Association; c) one member selected names submitted by the Land and Water Conservation Association; d) one member selected from names submitted by statewide, environmental-related organizations specified in the bill; and e) five members selected from names submitted by statewide, agriculture-related organizations specified in the bill. Under the bill, DATCP may promulgate rules specifying standards for siting and expanding livestock facilities only if at least two-thirds of the members of the Livestock Facility Technical Review Board recommends that DATCP promulgate the rules. This requirement does not apply to existing rules promulgated by DATCP that specify standards for siting and expanding livestock facilities. Current law requires DATCP to promulgate rules specifying standards for siting and expanding livestock facilities.

8. The bill specifies that rules promulgated by DATCP that establish setback requirements or odor and air emissions standards for waste storage structures do not apply to manure digesters or structures used to collect and store waste under a livestock housing facility.

9. The bill eliminates the requirement under current law that DATCP review every four years its rules specifying standards for siting and expanding livestock facilities.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB808,1 Section 1. 15.135 (2) of the statutes is created to read:

SB808,4,5 15.135 (2) Livestock facility technical review board. (a) There is created a livestock facility technical review board which is attached to the department of agriculture, trade and consumer protection under s. 15.03. The board consists of the following members: