May 6, 2010Client Alert

Livestock Facility Siting Report Submitted to Board of Agriculture, Trade and Consumer Protection

Pursuant to the Livestock Facility Siting Law (§ 93.90(2)(c), Wis. Stats.), the Department of Agriculture, Trade and Consumer Protection (DATCP) is required, every four years, to review the uniform statewide livestock facility siting standards promulgated at ATCP 51, Wis. Adm. Code. DATCP is required to evaluate the setbacks, odor, nutrient management, waste storage and runoff management standards based on specific criteria identified in ATCP 51, including whether the standards are: protective of public health and safety; practical and workable; cost-effective; objective; based on available scientific evidence that has been subject to peer review; designed to promote the growth and viability of animal agriculture in Wisconsin; designed to balance the economic viability of farm operations with protecting natural resources and other community interests; and usable by political subdivision officials. As part of its review, DATCP held four listening sessions in February and March 2010 and collected oral and written public comments through March 10, 2010.

On April 28, 2010, DATCP Secretary Rod Nilsestuen submitted his report (the DATCP Report) to the DATCP Board. The DATCP Report summarizes DATCP’s review of the statewide standards and the agency’s implementation of the Livestock Facility Siting Law to date; identifies major issues that DATCP may consider further; provides a summary of public comments received during the listening sessions; and attempts to provide a roadmap for the agency’s next steps in the evaluation process.

The DATCP Report identifies nine major issues that agency staff recommend be considered further; Appendix B of the report identifies all 29 issues considered and DATCP staff’s assessment of those issues. The nine major issues include the following:

  • Consider revising the application process and worksheets
  • Evaluate the need to upgrade siting standards based on developing technology
  • Reconsider current setbacks and whether to require farm owners to mitigate potential impacts based on the size of their farm and proximity to neighbors
  • Consider adjusting the odor score model based on new and emerging research
  • Consider whether a full nutrient management plan should be included in a livestock siting application and whether the current standard adequately reflects the “complexity of the issue”
  • Consider whether DATCP should provide guidance on how a political subdivision may develop more stringent standards based on public health and safety and validated by scientific findings of fact
  • Consider how siting standards impact public health and safety considerations
  • Consider whether the current application fee is adequate to allow political subdivisions to administer a local siting program
  • Consider whether DATCP needs to clarify a political subdivision’s authority to monitor and enforce livestock facility siting permit requirements

The DATCP Report also identified a number of concerns raised in public comments that were beyond the scope of DATCP’s required evaluation of siting standards. Overall, DATCP received 432 public comments in support of the Livestock Facility Siting Law and 431 comments opposing or otherwise criticizing its implementation. Although, pursuant to § 93.90, Wis. Stats., the agency is limited to reviewing the “rules promulgated” at ATCP 51, the DATCP Report appears to identify a range of issues beyond the scope of the intended statutory review. The DATCP Report notes that, due to the broad range of regulatory, legislative, technical and public policy issues raised during the agency’s evaluation and public listening sessions, the agency may need to take multiple “next steps” to best address the issues and to “properly evaluate [DATCP’s] future direction.” The DATCP Report recommends to the DATCP Board that a panel of experts be convened, similar to how the rule was initially developed, to review those technical issues that have been identified as part of the rule review process. The Report will be presented to the DATCP Board on May 12, 2010 for further action.

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