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Livestock Facility Siting Law

— The livestock siting law took away local power to regulate CAFOs. Without effective state regulation of industrial farms, the burden of litigating for law enforcement is passed on to citizens.

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The Livestock Facility Siting Law and rule is currently up for its second, statutorily required, four-year review. The Department of Agriculture, Trade and Consumer Protection initiated its first four-year review of the siting law in 2010. But since other rules that had the potential to conflict with the Siting Law were not final at the time the 2010 Tech Committee completed its review, DATCP took no action on the committee’s report and recommendations. At that time, DATCP conducted statewide listening sessions giving the public an opportunity to comment on the law. The results of these sessions were summarized in DATCP’s first four-year report (DATCAP posted a 2014 report).

This year, citizens gave public comments at DATCP’s board meeting on February 19 and heard a livestock siting report from the Division of Agricultural Resource Management. Comments from the public were intended to share their concerns about the siting law and give recommendations for the next four-year review.

Midwest Environmental Advocates also submitted comments to DATCP in May with a list of 12 suggestions for DATCP and the technical review commitee to consider to better protect the health of people, their water, land, air and their local democracy. The law requires DATCP to appoint a technical committee to conduct review of the Livestock Facility Siting Rule and we are waiting for the announcement of those appointments. The first law and rule review process took almost an entire year. The first review's technical committee’s final report was issued on December 21, 2010.

At the November 18, 2015 meeting of the livestock siting review committee, MEA submitted a letter to DATCP Secretary Ben Brancel urging the agency to revise the state’s livestock siting laws and incorporate the technical review committee’s findings. In the letter, we stated that a revised siting law should clarify and restore the ability of local governments to protect public health and safety. Revisions to the law are necessary to formally adopt the latest technical and nutrient management standards, include improved setback requirements, and address odor implications resulting from current industrial livestock practices. In short, MEA supports the Technical Committee’s recommendations that encourage more robust local monitoring of compliance with the Siting Law.

Case Summary

What is the Livestock Facility Siting Law?

Wisconsin state legislators passed a law in 2004 that affects the ability of elected officials in local governments to regulate livestock farming, particularly the largest concentrated animal feeding operations. Promoted as a way to streamline local approvals and standards for farm permits, the Livestock Facility Siting Law (Wis. Stat. § 93.90) and the siting rules developed by the Wisconsin Department of Agriculture, Trade and Consumer Protection in 2006 (ATCP 51) in effect took power away from local governments to use zoning or protective ordinances that keep local land use consistent with a community’s quality of life.

What does the law do?

Simply, the livestock facility siting law says that if local political divisions (municipalities like cities, townships or villages) choose to require livestock farms to apply for a license or conditional use permit, those local communities must have a common application and approval process. The application has basic and limited standards to apply to livestock farms.

State standards in the siting rules regulate:

  • the location of livestock facilities,
  • odor and air emissions,
  • nutrient management (of substances like phosphorus and nitrates that pollute surface and groundwater),
  • manure waste storage facilities, and
  • runoff management (of liquefied manure waste applied to land).

The rules include limits on how far livestock structures are required to be located from other people’s property lines or streets (no more than 100 feet – or just over the length of a basketball court – from a property line or road for smaller farms; no more than 200 feet from a property line or 150 feet from a road for CAFOs). There are also limits on how far waste storage structures, including manure lagoons, can be set back from a property line or public road (350 feet, or just over the length of a football field).

The rules also include limits on when a CAFO would be subject to odor management. Only facilities that are located within 2,500 feet (just less than a half mile) from a neighbor and which achieve an “odor score” need to comply with the law.

Facilities have to follow USDA technical guidelines for nutrient management; although livestock farms with fewer than 1000 animal units aren’t required to have a nutrient management plan at all. Runoff management requirements cannot be stricter than state law.

Why the law doesn’t protect local communities’ health or quality of life

The limitations this law puts on the power of local communities to protect local land use and quality of life makes the reality of the law heavily biased in favor of CAFOs. Though the law was intended to provide consistency in livestock siting rules, local communities essentially have to rubber-stamp applications and approve plans that may not be protective enough of local needs.

Department of Natural Resources staffing and environmental law enforcement is on the decline. State standards regulating the location of livestock facilities, odor and air emissions, nutrient management, waste storage facilities and runoff management are important. But without a strong DNR, the real work of monitoring, responding to citizen complaints and holding polluters accountable is less effective.

Language in the law limits restrictions to health and safety. If local governments want to require stronger siting standards than the state, it must show that those stricter standards are based on “reasonable and scientifically defensible findings of fact” that “clearly show that the standards are needed to protect the public health or safety.” Public health and safety do need protection, but this language eliminates the ability for local communities to address other needs for planning land use or protecting their quality of life. 

While there is a process for applicants or local residents to appeal livestock siting decisions to the Livestock Facility Siting Review Board, objections are limited to those who live or own land within two miles of a proposed facility and are limited to whether or not the applicants can follow the statewide siting standards, excluding a wide range of land use and quality of life concerns.

Why the law needs to be revised

A one-size-fits-all approach to licensing livestock facilities isn’t working for rural communities, especially those facing real health threats of decreasing air quality, contamination of drinking wells, degraded streams from manure runoff, and increased truck traffic hauling manure to fields The siting law’s application process takes away the traditional local authority to govern land use for unique, local conditions and to set local rules where state law is silent.

DATCP’s first four-year review considered revisions such as increases in setbacks, better regulations for manure storage, and addressing feed storage leachate (dissolved nutrients from grain stored in silos that can contaminate the groundwater). The review didn’t address the fees local governments can charge facility applicants (to pay for experts to review siting and waste management plans), or bonding from facilities to insure against potential damage caused by agricultural waste pollution.

Short of repealing the law, local communities need to have more flexibility in regulating CAFOs and citizens should have the right to vote, veto or otherwise reject the siting of a factory farm in order to better protect their water, air and land.