DATCP Reported on Livestock Siting Law

Thursday, July 31, 2008 8:29 AM CDT

Joan Sanstadt, News Editor

When members of the Department of Agriculture, Trade and Consumer Protection board approved rule (ATCP 51 Wisconsin Admin. Code) implementing the Livestock Facility Siting Law it agreed to give the board an annual report on how the law was working.

In its second annual report, the DATCP included actions by DATCP staff, implementation challenges faced by local governments and activities of the Livestock Facility Siting Review board (LFSRB).

Here are some of the highlights included in the DATCP report to the board:

During its second year of implementation, the DATCP strengthened its capacity to support the siting law by hiring an engineer and establishing a service center. It also increased outreach efforts and one-on-one assistance to farmers, local governments, private industry and citizens.

The siting law has helped the state’s livestock industry modernize while also protecting our natural resources. More local governments realized the benefits of adopting a siting ordinance, and over the past year 14 permits were granted at the local level. The majority of permits were issued without controversy and within the timeframes required by the law (not exceeding four months).

Local governments face a range of issues in implementing the siting law. Some local officials do not fully understand the law, and this has contributed to inaction in adopting ordinances. Counties and towns vary in their ability to evaluate the technical components of permit applications, particularly in the case of complex expansion plans.

Different levels of administrative capacity exist in terms of conducting public hearings and effectively communicating the benefits of the siting standards to citizens unfamiliar with agriculture.

A livestock siting ordinance provides local governments a mechanism to make permit decisions based on defensible siting standards, and a process to manage conflict. The siting of new and expanding livestock facilities can still be controversial in instances where long-standing community conflicts exist, or when individuals are uncomfortable with the size and type of a proposed operation.

Conflict is not unique to animal agriculture; local decision making processes are often put under the microscope when the public takes interest in land use decisions (e.g. wind farms, mines, highway bypasses). In municipalities having siting ordinances, the process provides more predictability and a streamlined permitting process for all parties involved.

The LFSRB has had three appeals, issued two decisions, and based on these experiences, has improved its bylaws to streamline the appeals process.

Implementation

The DATCP’s education and outreach has focused on technical assistance to local government, producers and consultants plus educational assistance to citizens and other interested groups.

Besides appearing at numerous meetings throughout the state, staff has assisted a diverse mix of elected officials, regulators, engineering firms, crop consultants, attorneys, planners, industry groups, environmental organizations and private citizens.

Communications on a daily basis have been held with individual stakeholders. DATCP staff has attended local public meetings to explain the requirements for adopting a siting ordinance, ordinance administration responsibilities and answered specific questions related to reviewing an application.

A new livestock siting engineer was hired in June of 2007. He is charged with providing technical support for producers, their consultants and local government officials on issues related to odor, manure storage and runoff management standards.

The Livestock Siting Service Center, located at the DATCP office in Madison, provides more personal and complete assistance to farmers, consultants, local government and others.

The project manager and engineer met with 12 producers to review expansion plans, explain application requirements and provide helpful examples

Upon request, the department staff analyzes ordinances in advance of local adoption to help them avoid potential conflicts and better implement the siting law. Staff also reviews ordinances submitted by local governments after adoption.

Local government implementation

Siting ordinances (regulation) can be adopted at the town, village or county level at any time, but new ordinances cannot require permits for livestock facilities under 500 animal units.

To make the most informed decisions, local officials need to fully understand the application process and standards (including compliance with state standards relating to waste storage facilities, odor, runoff and nutrient management).

Before adopting a siting ordinance local officials must determine their capacity to administer the law and the technical expertise that is available to evaluate applications. They must also decide which best meets local needs: adopting siting through zoning with conditional use permits or adopting siting through licensing permits (which can apply in zoned and un-zoned areas).

Regulations applying to livestock farms are not always well understood by local officials or by many citizens. However, local governments and the state share responsibility for regulating livestock operations.

Understanding the available tools and how to use them allow local officials and community residents to plan more effectively and make informed decisions about local needs.

State regulations include making sure livestock facilities meet certain standards to protect water quality and that includes compliance with state runoff rules in ch. NR 151.

The DNR requires permits for all operations over 1,000 animal units under ch.NR 243. Other regulations such as pesticide storage may also affect livestock operations.

The power of local regulatory tools that can be used to manage land use conflicts and minimize farm impacts are often not fully appreciated. Examples include: options for zoning, vehicle weight limits, county manure storage ordinances and siting ordinances. Planning and zoning to reduce land use conflicts is a tool available to all local governments.

Siting ordinance adoption may use either a licensing or zoning approach. As of April 2008, a total of 49 governments had adopted siting and filed enacted ordinances with DATCP.

Local government must be committed to careful follow through if they choose to operate a permitting process consistent with the siting law. To administer the siting law, local government approaches vary considerably, for example how they choose to divide responsibilities between local departments and committees. Counties typically have the technical capabilities necessary for a successful program, while towns have been more likely to need technical assistance.

At the county level, some land conservation departments take on all the duties, while in others there is joint administration by the land conservation and zoning departments. Many counties decided not to regulate siting and defer the decision to town governments.

Particularly for town governments, local officials should explore options for outside help, and resolve issues of capacity and resources before adoption of a siting ordinance.

Lack of technical support for ordinance administration is a major reason local officials choose not to adopt siting regulations. For example the Town of Russell (Sheboygan County discontinued regulation of livestock operations because they decided they lacked the capacity to implement the siting law.

Some towns do not want to issue permits and are only concerned about knowing that producers meet all applicable county ordinances and state laws. This can be solved by improving communications between different levels of government.

The Towns of Marshfield (Fond du Lac County) and Portland (Dodge County) did not make arrangements for technical assistance to review worksheets until after permit applications were filed. Both towns were able to secure county land conservation department help. Conversely, the Town of Luxemburg (Kewaunee County) was refused assistance from the county and elected to hire a consulting firm. Some counties may not have adequate resources or staff. Crawford County chose to hire an independent nutrient management planner to resolve difficult technical questions.

Many counties and towns have not developed siting ordinances, despite taking actions in this direction. For example, towns actively adopted resolutions to preserve their right to regulate during the grace period yet failed to enact a siting ordinance believing that a resolution was sufficient. Without a siting ordinance there is a lapse of authority, resulting in the inability to require a permit of livestock operations. After learning of this misunderstanding, some, but not all, started developing ordinances. In another case, the Town of Cameron (Wood County) can no longer maintain a permit threshold of 200 animals in its zoning ordinance because it did not act to incorporate the siting law before the Nov. 1, 2006 deadline for grandfathering thresholds lower than 500 animal units. Some counties with extensive town zoning elected not to adopt siting, leaving the decision on individual towns.

Public interest in adopting siting regulation and other land use controls often does not exist until a large farm is proposed. Public interest in land use regulation was spotlighted in Vernon County (no local zoning) and the Town of Rosendale (Fond du Lac County) when large farm developments were proposed in jurisdictions without siting ordinances.

Proactively adopting land use controls can help avoid the type of conflict that arose in both of these instances.

A zoning exclusion or restriction based on livestock facility size is considered a more stringent siting standard unless the land is zoned non-agricultural. Reclassifying an area into a non-agricultural zone may avoid restrictions imposed by the siting law; however, the land then becomes subject to many other development pressures and restrictions such as depriving farmers the benefits of participation in the farmland preservation program. Approximately 10 towns are struggling with this issue as they develop comprehensive land use plans.

To be continued…

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