Second Year Siting Report Concludes

Thursday, August 7, 2008 9:13 AM CDT

Joan Sanstadt, News Editor

This is the final installment on the second year report on the Livestock Facility Siting Law which became effective on May 1, 2006, and received by the DATCP Board at its May 2008 meeting.

During its second year the siting law was challenged when some local officials, planners and interest groups wanted to enact standards more stringent than those in the law.

The siting law requires a local ordinance cite scientifically defensible findings of fact that justify more stringent standards necessary to protect public health and safety. Such justifications must be directly linked to research and that the research identifies a documented risk to public health and safety.

If a proposed local standard exceeds NR 151 performance standards or ATCP 50 conservation practices, state agency approval is required by the statutes. In view of these requirements, the DATCP is advising regulators to implement existing rules (notably nutrient management) before creating more stringent standards.

Calumet County adopted a resolution to protect groundwater that reflects a county policy of implementing requirements that are more restrictive than state agricultural performance standards.

To make these requirements part of a siting ordinance, the county must obtain state approval as required by statute 92.15 and demonstrate a pubic health and safety justification.

DATCP staff is continuing to work with county officials to discuss requirements for adopting more stringent standards to address manure management in areas containing Karst features. (Karst features are also found in Vernon and Crawford counties.)

Moratoriums

When a Vernon County resident proposed a 2,400 head swine (960 animal units) operation, a group of citizens opposed to large animal confinement operations asked local officials for a moratorium. There were few options to address the issue because the county had never pursued comprehensive land use planning or county zoning (only two towns in Vernon County have enacted zoning). Without planning and zoning controls there was no method to determine suitable land uses and avoid conflict.

While evaluating options for a moratorium, county board members also considered enacting a siting ordinance. The DATCP advised Vernon County about the siting law and the proposed moratorium, and answered questions from county residents, the media, and producer groups. Staff attended land conservation committee meetings to explain the requirements of ATCP 51. Lacking clear legal authority to issue the proposed moratorium, the Vernon County Board voted down the moratorium 23-6, and approved a licensing ordinance for livestock siting (without more stringent standards) by a vote of 15-14.

In the Town of Byron (Fond du Lac County) bacterial well contaminations prompted the town board to consider enacting a moratorium to halt the construction of livestock facilities. Department staff worked with town and county officials, consultants assisting dairy producers, and citizens to help them understand the impact of the siting law on the proposed moratorium. The town board tabled the moratorium and decided to form a citizen’s group to investigate all aspects of the groundwater pollution issue (e.g. evaluations of existing wells, biosolid applications, and nutrient management).

Attorney General

The Dairy Business Association, the Wisconsin Farm Bureau Federation, the Wisconsin Pork Producers Association and the Wisconsin Cattlemen’s Association requested the Attorney General issue an opinion to clarify questions regarding adoption of more stringent local siting standards, inconsistent local regulations and locally enforcing other state laws through a livestock siting permit.

Senator Dale Schultz (R-Richland Center) and Representative Nerison (R-Westby)) filed a similar request.In August 2007 DATCP requested a formal legal opinion on these questions. Because of involvement in the circuit court challenge of LFSRB decision in the Larson Acres case, the Attorney General had to put these requests on hold.

- Siting Permits issued

Over the past year, three towns and seven counties issued a combined 14 siting permits. Permits were issued within the timeframes required by the law (within four months) and mostly without controversy.

Since the law’s inception 17 permits have been granted (14 dairy, one swine and two poultry facilities), none have been denied. The department is aware that local governments are processing other permit applications.

- Permitting procedures

Crawford County effectively used the permitting procedures in the siting law to channel citizen conflict through an organized process. A well-managed public hearing served as a forum for opponents of a proposed expansion to communicate their concerns to the land conservation committee, and as a means of conveying environmental performance benchmarks required by the siting law.

In the end, the state standards adopted in the county ordinance were the benchmark for the permit decision. A permit was granted based on the technical merits of the producer’s application, rather than the volume of the opposition.

- Incomplete applications

To ensure a complete siting application, producers and those assisting them still need help understanding what information must be filed. When incomplete applications are submitted, there is unnecessary delay in the permitting process. DATCP staff has worked with individual producers to ensure that applications contain all the required information. This effort also includes helping producers resist the temptation of applying for a permit prior to settling on the final management plans and layout of the proposed expansion. In addition to individual contacts, DATCP is working with the industry to increase producer awareness of these issues.

- Variances

Local governments have taken advantage of the provision in the siting law to reduce setback through variance procedures. Jefferson County granted a variance allowing a producer to build closer to a property line because no residential dwellings were impacted. The Town of Marshfield (Fond du Lac County) ordinance includes a more stringent setback distance (1,000 feet). The town granted a 900-foot variance for the Pickart expansion because there was no public opposition.

When a similar request from the Rieden operation was proposed, the town also granted variance despite opposition from neighbors.

- Enforcement

Local governments are responsible for ensuring compliance with local permit conditions. A new role for many, this may involve ensuring that facilities are constructed to meet standards and ongoing monitoring of operations to verify compliance permit conditions. Design review, construction inspection and quality assurance may present challenges, notably when changes are proposed during construction. Producers sometime wish to begin construction prior to being issued a permit. The department is advising producers not to begin until final approval is granted. Some farmers have started construction with the blessing of a town or county before a permit was issued.

- Vested rights

Some communities are struggling with the right of producers who receive permission to start building before the community formally adopts a siting ordinance. Landowners in Vernon County and the Town of Rosendale received building permits for new structures and were allowed to proceed with construction even though the community was acting to adopt a siting ordinance. Because the local government had not yet adopted a siting ordinance, the producers did not have to meet the siting standards which were eventually adopted.

- Organized advocacy

Local citizens groups as well as the Midwest Environmental Advocates have supported neighbors and outsiders who oppose particular siting proposals. This support has taken the form of expert assistance to review application worksheets and representation before the LFSRB.

Concerns have focused on standards related to land application of manure and nutrient management planning. A summit was held in April 2008 to discuss issues concerning overall complexity of the rule for local governments to administer, perceived imbalance of the siting law in favor of agriculture, and the need for regional standards to protect groundwater and other resources.

Evaluation

The state siting standards are meeting the benchmarks set in s.93.90(2) including requirements that the standards be protective of public health and safety, practical and workable, promote the growth and viability of livestock industry, and usable by local officials.

Generally, this can be attributed to the fact that the environmental performance criteria contained in the siting standards parallel requirements of many existing laws and programs. Specific concerns related to the standards are limited to the follow areas:

- Animal units n The DNR promulgated the revised NR 243 Wis. Admin. Code. To meet EPA requirements, the revised code contains two methods to calculate animal units, resulting in a few inconsistencies between some of the new conversions to calculate AU in NR 243 and ATCP 51. DATCP did not change its rule to incorporate these DNR modifications. There are no known negative consequences as a result of this decision.

- Odor management n Department staff continues to assist stakeholders understand how to comply with this new standard, and use the approved odor calculation spreadsheet. The siting law only regulates odors, not emissions of specific compounds.

- Nutrient management n Nutrient management remains the most controversial standard. Manure spreading issues related to well contaminations and over application of nutrients, and tile line discharge are being raised at the local level. The judgment of planners can be questioned in part because nutrient management plans are dynamic and are intended to evolve over time.

- For more information, including a segment on Future Trends, visit the DATCP website http://www.datcp.state.wi.us and click on Environmental Protection.

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