Statement of Scope
Department of
Agriculture, Trade and Consumer Protection (DATCP)
Rule No.:
|
Chapter ATCP 51, Wis. Adm. Code (existing).
|
Relating to:
|
Livestock
Facility Siting
|
1. Description of the objective of the rule:
This
proposed
rule
would
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
.
2. Description of existing policies relevant to the rule and of new policies proposed to be included in the rule and an analysis of policy alternatives; the history, background and justification for the proposed rule:
History and background
.
Wisconsin’s
Livestock Facility Siting Law
(“siting law”), s.
93.90
, Stats.,
was enacted to
provide a
clear, predictable, and
more
uniform framework for the local permitting of livestock facilities in this state. Under the siting law, local governments
may
by ordinance require
a
zoning or licensing
permit
(“siting permit”)
for
new or expanded
livestock facilities
with 5
00 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, a
local government must grant or deny the permit based on standards and procedures adopted by
the Department
through rulemaking. Local governments have some authority to adopt additional standards
but only if those standards
,
adopted by ordinance, are based on scientific evidence and are necessary to protect public health or safety.
In 2006,
the Department
adopted rules
in
ch.
ATCP 51
, Wis. Adm. Code
(“siting rule”)
to implement the siting law. The ru
les spell out detailed
requirements
for
permitting l
ivestock facilities
related to:
•
Livestock Struc
tures
•
Setbacks and
Property
Location Requirements
•
Odor and Air Emissions
•
Nutrient Management
•
Waste Storage Facilities
•
Runoff Management.
The siting rule spells out procedures and timetables for local approval or disapproval
of permit applications
, consistent with the siting law. It also
mandates the use of
state-approved p
ermit application forms, which are designed to elicit information needed to show compliance with applicable siting standards.
Under the siting
law,
the Department
must review the
standards
in the siting rule
at least once every 4 years.
Since 2006 when the siting rule was adopted,
the Department
has conducted 2 of these review
s
, with the most recent
review in
itiated in
2014
. A
s
part of th
e 2014
review,
the Department
conducted listening sessions with
environmental, farm and government
stakeholder groups. The
Department’s
Secretary also appointed a committee of technical experts to advise
the Department
on possible changes to the siting standards.
The
expert
committee provided its report to the Sec
re
tary in September, 2015.
Proposed policies
.
T
his proposed
rule may modify the siting rule as follows:
•
Ensure that the
water quality standards
,
including related N
atural
R
esources
C
onservation
S
ervice (“NRCS”)
technical standards in
the
siting rule
,
are consistent with NR 151 and ATCP 50.
The Department
may
incorporate the latest version of NRCS nutrient management technical standard 590
into ATCP 51,
determining which aspects of the
standard to
include
.
The Department
may consider whether
its
adopti
on of
certain standards
will require
livestock
facilities permitted under the siting rule to comply with
greater requirements
than those permitted
under
ch.
NR 243
, Wis. Adm. Code.
•
Modify siting standards
(
subch
. II of ATCP 51)
consi
stent with the requirements in
s.
93.90(2)
, Stats.
The
D
epartment
will consider the
technical
recommendations of
the 2014
expert committee
in making any
changes.
If
the
D
epartment
changes
any siting
standards, it will include provisions to accommodate existing operations.
•
Modify the procedures
(
subchs
. I and III of ATCP 51) that
local
governments must follow
in issuing a siting permit
under
a
zoning or licensing ordinance
.
The rule may address local
procedures used
to
determinat
e
siting application complete
ness
,
siting permit
modifications
to ensure compliance with the law
,
the
use of checklists to monitor facility compliance
, and th
e fees local governments
charge for siting permit
application
s and
permit modifications
.
•
Modify local permit application forms and worksheets to ensure that they are clear, complete
,
and elicit information
which
document
s
compliance with applicable siting standards
•
Make other changes, clarifications and updates as necessary to
improve implementation of the siting rule,
consi
stent with the requirements in
s.
93.90(2)
, Stats
.
Policy Alternatives
and Justification
.
If
the Department
takes no action
on ATCP 51
, current rules will remain in effect.
By proceeding with rulemaking,
the Department
will address the following:
•
Some
current
standards and rule requirements are not consistent with requirements
in related administrative rules,
NR 151 and ATCP 50.
•
Some
current
rule provisions
,
including technical standards
,
are outdated
and may not reflect the best available science.
•
The current rule does not account for the technical recommendations of the expert committee.
•
Some
current
siting standards or procedures need
modification
to address implementation challenges
,
to
better meet the needs of
environmental, farm and government
stakeholders.
•
Some
current
rule
provisions
do not
adequately
a
ddress changes in
conditions
facing livestock operators and local governments
.
•
Some
current
rule
provisions may also hinder future coordination of federal, state and local conservation programs.
3. Statutory authority for the rule (including the statutory citation and language):
Sections
93.07 (1)
and
9
3.90(2)
and
(7)
, Stats.
,
93.07 Department duties.
It shall be the duty of the department:
(1)
REGULATIONS. To make and enforce such regulations, not inconsistent with law, as it may deem necessary for the exercise and discharge of all the powers and duties of the department, and to adopt such measures and make such regulations as are necessary and proper for the enforcement by the state of chs.
93
to
100
, which regulations shall have the force of law.
93.90
(2)
Department duties.
93.90(2)(a)
(a)
For the purposes of this section, the department shall promulgate rules specifying standards for siting and expanding livestock facilities. In promulgating the rules, the department may incorporate by cross-reference provisions contained in rules promulgated under ss.
92.05 (3) (c)
and
(k)
,
92.14 (8)
,
92.16
, and
281.16 (3)
and ch.
283
. The department may not promulgate rules under this paragraph that conflict with rules promulgated under s.
92.05 (3) (c)
or
(k)
,
92.14 (8)
,
92.16
, or
281.16 (3)
or ch.
283
.
93.90(2)(b)
(b)
In promulgating rules under par.
(a)
, the department shall consider whether the proposed
s
tandards, other than those incorporated by cross-reference, are all of the following:
93.90(2)(b)1.
1.
Protective of public health or safety.
93.90(2)(b)1m.
1m.
Practical and workable.
93.90(2)(b)2.
2.
Cost-effective.
93.90(2)(b)3.
3.
Objective.
93.90(2)(b)4.
4.
Based on available scientific information that has been subjected to peer review.
93.90(2)(b)5.
5.
Designed to promote the growth and viability of animal agriculture in this state.
93.90(2)(b)6.
6.
Designed to balance the economic viability of farm operations with protecting natural resources and other community interests.
93.90(2)(b)7.
7.
Usable by officials of political subdivisions.
93.90(2)(c)
(c)
The department shall review rules promulgated under par.
(a)
at least once every 4 years.
93.90(2)(d)
(d)
The secretary shall appoint a committee of experts to advise the department on the promulgation of the rules under par.
(a)
and on the review of rules under par.
(c)
.
93.90(2)(e)
(e)
In addition to the rules under par.
(a)
, the department shall promulgate rules that do all of the following:
93.90(2)(e)1.
1.
Specify the information and documentation that must be provided in an application for approval in order to demonstrate that a livestock facility siting or expansion complies with applicable state standards under sub.
(2) (a)
.
93.90(2)(e)2.
2.
Specify the information and documentation that must be included in a record of decision making under sub.
(4) (b)
.
4. Estimate of the amount of time that state employees will spend to develop the rule and of other resources necessary to develop the rule:
The Department
estimates
that it will use approximately 1
.0 FTE staff to develop this rule. This includes planning and preliminary activities,
evaluation of recommendations of technical expert committee
meetings, drafting rules and related documents, holding public hearings, analyzing and responding to hearing comments, presenting proposed rules to the ATCP Board
and other government entities, and communication with stakeholders.
The
D
epartment
will use existing staff to develop this rule. The estimated staff time reflects the complex and sensitive subject matter of the rule, the intensity of interest among stakeholders, and the complex interaction with state and local regulatory programs.
5. Description of all entities that may be impacted by the rule:
This rule
primarily
affects
the following
entities:
•
C
ounties, towns and municipalities that require local approval for the siting of livestock facilities. As
of February 2014, the date of the last formal siting report to the ATCP
B
oard, 24 counties, 61 towns, two cities (Berlin and Fitchburg), and two villages (Germantown and Richfield) have adopted siting ordinances.
•
L
ivestock operators who propose to construct new or expanded livestock facilities that exceed applicable minimum size thresholds (typically 500 animal units) in counties, towns or municipalities that have adopted livestock facil
ity siting ordinances. As of the February 2014 report, 113
livestock facilities received local permits
.
Nearly half of those facilities exceeded 1,000 animal units, and were therefore required to obtain a
Wisconsin Pollution
•
Discharge Elimination System (“WPDES”) permit from the Wisconsin Department of Natural Resources (“DNR”), in addition to
a local siting permit.
This rule may have lesser impact on
providers of products and services to livestock facilities
, such as agricultural engineers and practitioners, crop consultants, construction contractors, farm supply businesses and manure haulers
.
This rule may increase demand for some products and services, and may require product and s
ervice providers to adapt to potential
rule changes
.
6. Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule:
Nearly half of
livestock operations affected by this rule are also subject to regulation under the federal Clean Water Act. Under delegated authority from U.S. Environmental Protection Agency
(EPA)
,
DNR
adopted
ch.
NR 243
, Wis. Adm. Code, to regulate water pollution discharges from livestock facilities. Under NR 243, livestock facilities with over 1,000 animal units must obtain a
DNR
WPDES permit
.
Permit holders must meet standards
designed to ensure that the proposed livestock facility will not pollute surface water or groundwater. Livestock facilities that have a WPDES permit are deemed to comply with some of
the
D
epartment
’s standards for the issuance of local siting permits, including standards for nutrient management, waste storage facilities and runoff management (the standards parallel WPDES permit standard
s, and have a similar purpose,
although WPDES standards are stricter in some respects).
To qualify for a siting
permit, a WPDES permit holder must also demonstrate compliance with
Department
standards for livestock structures, location on property, and odor management, which are not covered by WPDES permit.
Federal law establishes reporting and other requirements for livestock facilities related to air emissions. For example, large operations must report certain types of releases to local and state agencies, as directed by the Emergency Planning and Community Right-to-Know Act (EPCRA). EPA also has authority to respond to citizen complaints or requests for assistance from state or local government agencies to investigate releases of hazardous substances from farms
. Federal law does not directly
cover odor management
on livestock facilities.
Federal programs may provide
incentive payments t
o help livestock producers implement conservation practices, including practices that may help livestock producers meet livestock facility siting standards under this rule. The following relevant programs are administered by the U.S. Department of Agriculture:
•
Environmental Qu
ality Incentives Program (EQIP)
•
Conservation Reserve Program (CRP)
•
Conservation Reserve Enhancement Program (CREP)
•
Conservation Stewardship Program (CSP)
•
Agricultural Conservation Easement Program (ACEP)
.
7. Anticipated economic impact
The
D
epartment
expects the proposed rule to have minimal econom
ic impact statewide and locally, with moderate impacts
for some of the
livestock facilities
regulated under siting permits. Many farmers affected by this rule
qualify as “small businesses.”
