SB808: Bill Text

LRB-5529/1

KP:wlj&kjf

2019 - 2020 LEGISLATURE

2019 Senate BILL 808

February 11, 2020 - Introduced by Senators Marklein, Bernier, Feyen, LeMahieu and Olsen, cosponsored by Representatives Tranel, Tauchen, Kurtz, Novak, Ballweg, Summerfield and Tusler. Referred to Committee on Agriculture, Revenue and Financial Institutions.

SB808,2,2 An Act to repeal 93.90 (2) (c), 93.90 (3) (a) (intro.), 93.90 (3) (a) 5., 93.90 (3) (a) 6., 93.90 (3) (a) 8., 93.90 (3) (a) 9., 93.90 (3) (ae), 93.90 (3) (am), 93.90 (3) (ar) and 93.90 (4); to renumber 93.90 (3) (a) 1., 93.90 (3) (a) 3., 93.90 (3) (a) 4. and 93.90 (3) (f); to renumber and amend 93.90 (3) (a) 2., 93.90 (3) (b), 93.90 (3) (c), 93.90 (3) (d) and 93.90 (3) (e); to amend 93.90 (1m) (b), 93.90 (2) (a), 93.90 (2) (d), 93.90 (2) (e) 2., 93.90 (5) (title), 93.90 (5) (a), 93.90 (5) (b), 93.90 (5) (bm), 93.90 (5) (c), 93.90 (5) (d) and 93.90 (5) (f); to repeal and recreate 93.90 (3) (title); and to create 15.135 (2), 93.90 (1m) (bm), 93.90 (1m) (dr), 93.90 (1m) (eg), 93.90 (1m) (er), 93.90 (1m) (g), 93.90 (1m) (h), 93.90 (1m) (i), 93.90 (2) (am), 93.90 (2) (f), 93.90 (2m), 93.90 (3) (g), 93.90 (3) (h) (intro.), 93.90 (3) (h) 5., 93.90 (3) (i) 1., 93.90 (3) (i) 2. (intro.), 93.90 (3) (j), 93.90 (3) (L) and 93.90 (6) of the statutes; relating to: livestock facility siting and expansion and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill makes changes concerning the siting and expansion of livestock facilities, including the following:

1. The bill requires the Department of Agriculture, Trade and Consumer Protection to receive and review applications for siting or expanding a livestock facility if a city, village, town, or county (political subdivision) requires approval for siting or expanding a livestock facility in the political subdivision. Within two business days of receiving an application, DATCP must provide a copy of the application to the political subdivisions in which the property that is the subject of the application is located. Within 14 days of receiving an application, DATCP must notify the applicant whether the application is complete and, if not, what supplementary information is needed to complete the application. After DATCP determines that an application is complete, DATCP must provide 30 days for receiving public comments on the application and may hold a public hearing during this period.

Generally, DATCP is required to approve or disapprove the application within 10 days after the close of the public comment period. DATCP must approve the application if the applicant complies with DATCP's livestock facility siting rules, except that if a political subdivision enacts a more stringent requirement as allowed under the bill, DATCP must approve the application if the applicant complies with the political subdivision's more stringent requirements and DATCP's livestock facility siting rules that are consistent with the political subdivision's requirements. In approving or disapproving the application, DATCP must make written findings of fact and conclusions of law and a record of its decision making. DATCP also must provide notice of its decision to the political subdivision, the applicant, and any other party that submitted written comments during the public comment period.

Under current law, an application for siting or expanding a livestock facility is submitted to a political subdivision. Within 45 days, the political subdivision must notify the applicant whether the application is complete and, if not, what information is needed to complete the application. Current law also generally requires a political subdivision to approve or disapprove an application within 90 days of determining that an application is complete.

2. The bill requires a political subdivision to notify all landowners adjacent to the proposed livestock facility siting or expansion and to approve or deny an application within 60 days of receiving notice that DATCP approved an application. Under the bill, a political subdivision may disapprove or prohibit the siting or expansion of a livestock facility only for certain reasons, including any of the following: a) the facility would violate a setback requirement established under the bill; b) the site is in a location that is not an agricultural zoning district; and c) the proposed facility violates a building, electrical, or plumbing code consistent with the state building, electrical, or plumbing code.

3. The bill authorizes aggrieved persons to challenge DATCP's decision on a livestock facility siting or expansion application. The bill defines an “aggrieved person” as a political subdivision in which a proposed livestock facility would be located, an applicant, or a person who lives or owns land within two miles of a proposed livestock facility. Under the bill, the Livestock Facility Siting Review Board determines whether to reverse DATCP's decision on approving or disapproving an application. An aggrieved person may appeal the decision of the board to circuit court. The bill also specifies that a person may challenge the decision of a political subdivision on an application by bringing an action before the board of appeals or adjustment of the political subdivision or the appropriate circuit court.

Under current law, a challenge to a political subdivision's decision on an application is decided by the Livestock Facility Siting Review Board, and the board's decision may be appealed to circuit court.

4. The bill generally prohibits a political subdivision from enforcing or enacting a requirement for approving livestock facility siting or expansion applications that is more stringent than DATCP's rules. Under the bill, a political subdivision may enact a requirement that is more stringent than DATCP's rules if the requirement is based on reasonable and scientifically defensible findings of fact made by the political subdivision that satisfy certain requirements. Current law allows a political subdivision to enforce a standard that is more stringent than DATCP's rules if the political subdivision enacts an ordinance and bases the standard on reasonable and scientifically defensible findings of fact that satisfy certain requirements.

5. Under the bill, if a political subdivision establishes a setback requirement from public roads for livestock structures or waste storage structures, the setback requirement may not require that the structure be located more than 100 feet from public roads.

6. The bill also provides that a livestock structure or waste storage structure constructed after the bill takes effect may be located closer to a property line of another owner's property than a setback requirement established by DATCP's rules if the owner of the land on which the structure is located and the owner of land within the required setback distance enter into a written agreement and record the agreement with the county register of deeds.

7. The bill creates the Livestock Facility Technical Review Board attached to DATCP, consisting of the following members nominated by the secretary of agriculture, trade and consumer protection and confirmed by the senate for five-year terms: a) one member selected from names submitted by the Wisconsin Towns Association; b) one member selected from names submitted by the Wisconsin Counties Association; c) one member selected names submitted by the Land and Water Conservation Association; d) one member selected from names submitted by statewide, environmental-related organizations specified in the bill; and e) five members selected from names submitted by statewide, agriculture-related organizations specified in the bill. Under the bill, DATCP may promulgate rules specifying standards for siting and expanding livestock facilities only if at least two-thirds of the members of the Livestock Facility Technical Review Board recommends that DATCP promulgate the rules. This requirement does not apply to existing rules promulgated by DATCP that specify standards for siting and expanding livestock facilities. Current law requires DATCP to promulgate rules specifying standards for siting and expanding livestock facilities.

8. The bill specifies that rules promulgated by DATCP that establish setback requirements or odor and air emissions standards for waste storage structures do not apply to manure digesters or structures used to collect and store waste under a livestock housing facility.

9. The bill eliminates the requirement under current law that DATCP review every four years its rules specifying standards for siting and expanding livestock facilities.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB808,1 Section 1. 15.135 (2) of the statutes is created to read:

SB808,4,5 15.135 (2) Livestock facility technical review board. (a) There is created a livestock facility technical review board which is attached to the department of agriculture, trade and consumer protection under s. 15.03. The board consists of the following members:

SB808,4,7 1. A member selected from names submitted by the Wisconsin Towns Association.

SB808,4,9 2. A member selected from names submitted by the Wisconsin Counties Association.

SB808,4,11 3. A member selected from names submitted by the Land and Water Conservation Association.

SB808,4,14 4. A member selected from names submitted by Clean Wisconsin, Inc., Midwest Environmental Advocates, the Sierra Club, the Nature Conservancy, Wisconsin Environment, Inc., and other statewide, environmental-related organizations.

SB808,5,6 5. Five members selected from names submitted by the Wisconsin Farm Bureau Federation, the Wisconsin Farmer's Union, the Dairy Business Association, the Wisconsin Dairy Alliance, the Wisconsin Pork Producers, the Wisconsin Cattlemen's Association, and other statewide, agriculture-related organizations. At least 3 of these members must hold a permit under s. 283.31 from the department of natural resources or be a permittee's designee.

SB808,5,9 (b) The members under par. (a) shall be nominated by the secretary of agriculture, trade and consumer protection, and with the advice and consent of the senate appointed, for 5-year terms.

SB808,2 Section 2 . 93.90 (1m) (b) of the statutes is amended to read:

SB808,5,15 93.90 (1m) (b) “Application for approval" means an application submitted to the department for approval of a livestock facility siting or expansion based on compliance with standards promulgated by rule under sub. (2) (a), and, if applicable, more stringent standards enacted by a political subdivision under sub. (3) (i) 1. An “application for approval” includes an application for permit modification.

SB808,3 Section 3 . 93.90 (1m) (bm) of the statutes is created to read:

SB808,5,20 93.90 (1m) (bm) “Application for permit modification” means an application concerning a livestock facility siting or expansion that was previously approved under sub. (2) (f) 5. or approved before the effective date of this paragraph .... [LRB inserts date], if any of the following applies:

SB808,5,24 1. The proposed livestock facility involves the construction or alteration of one or more livestock structures without increasing the maximum number of animal units authorized in the most recent approval granted under sub. (2) (f) 5. or granted before the effective date of this subdivision .... [LRB inserts date].

SB808,6,3 2. The proposed livestock facility involves increasing the maximum number of animal units held at the livestock facility without the construction or alteration of any livestock structures and all of the following apply:

SB808,6,7 a. The applicant has not previously increased the number of animal units above the maximum number of animal units authorized in the most recent local approval granted under sub. (2) (f) 5. or granted before the effective date of this subd. 2. a. .... [LRB inserts date].

SB808,6,11 b. The proposed increase in animal units does not exceed 20 percent of the maximum number of animal units authorized in the most recent local approval granted under sub. (2) (f) 5. or granted before the effective date of this subd. 2. b. .... [LRB inserts date].

SB808,4 Section 4. 93.90 (1m) (dr) of the statutes is created to read:

SB808,6,13 93.90 (1m) (dr) “Highway” has the meaning given in s. 340.01 (22).

SB808,5 Section 5. 93.90 (1m) (eg) of the statutes is created to read:

SB808,6,23 93.90 (1m) (eg) “Livestock structure" means a building or other structure used to house or feed livestock, to confine livestock for milking, to confine livestock for feeding other than grazing, to store livestock feed, or to collect or store waste generated at a livestock facility. “Livestock structure" includes a barn, milking parlor, feed storage facility, feeding facility, animal lot, or waste storage structure. “Livestock structure" does not include a pasture or winter grazing area, a fence surrounding a pasture or winter grazing area, a livestock watering or feeding facility in a pasture or winter grazing area, or a machine shed or like facility that is not used for livestock.

SB808,6 Section 6 . 93.90 (1m) (er) of the statutes is created to read:

SB808,6,25 93.90 (1m) (er) “Local approval” has the meaning given in s. ATCP 51.01 (21).

SB808,7 Section 7. 93.90 (1m) (g) of the statutes is created to read:

SB808,7,4 93.90 (1m) (g) “Property line” means the boundary of a property that is owned by someone other than the owner of the livestock structure for which a setback requirement is being measured.

SB808,8 Section 8 . 93.90 (1m) (h) of the statutes is created to read:

SB808,7,7 93.90 (1m) (h) “Waste” means manure, milking center waste, and other organic waste generated by a livestock facility.

SB808,9 Section 9 . 93.90 (1m) (i) of the statutes is created to read:

SB808,7,12 93.90 (1m) (i) “Waste storage structure” means a waste storage impoundment made by constructing embankments, excavating a pit or dugout, or fabricating a structure. “Waste storage structure” does not include equipment used to apply waste to land.

SB808,10 Section 10 . 93.90 (2) (a) of the statutes is amended to read:

SB808,7,22 93.90 (2) (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. The department may not promulgate rules under this paragraph unless at least two-thirds of the members of the livestock facility technical review board first approves the rules.

SB808,11 Section 11 . 93.90 (2) (am) of the statutes is created to read:

SB808,8,3 93.90 (2) (am) Any rules promulgated by the department under par. (a) that establish setback requirements or odor and air emissions standards for waste storage structures do not apply to any of the following:

SB808,8,4 1. A structure used to collect and store waste under a livestock housing facility.

SB808,8,6 2. A manure digester consisting of a sealed structure in which manure is subjected to managed biological decomposition.

SB808,12 Section 12 . 93.90 (2) (c) of the statutes is repealed.

SB808,13 Section 13 . 93.90 (2) (d) of the statutes is amended to read:

SB808,8,11 93.90 (2) (d) The secretary shall appoint a committee of experts to livestock facility technical review board shall advise the department on the promulgation of the rules under par. (a) and on the review of rules under par. (c).

SB808,14 Section 14 . 93.90 (2) (e) 2. of the statutes is amended to read:

SB808,8,15 93.90 (2) (e) 2. Specify the information and documentation that must be included in a record of decision making, written findings, and conclusions under sub. (4) (b). par. (f) 7.

SB808,15 Section 15. 93.90 (2) (f) of the statutes is created to read:

SB808,8,20 93.90 (2) (f) 1. If a local approval under sub. (3) (g) is required for a new or expanded livestock facility, the operator of the facility shall submit an application for approval to the department. The department may establish a fee not exceeding $750 for reviewing applications under this paragraph.

SB808,8,24 2. No later than 2 business days after the department receives an application for approval, the department shall provide notification and a copy of the application for approval to the political subdivisions in which the property that is the subject of the application for approval is located.

SB808,9,11 3. No later than 14 days after the department receives an application for approval, the department shall notify the applicant whether the application for approval is complete and, if it is not complete, what supplementary information is needed to complete the application for approval. Upon receipt of any supplementary information from the applicant, the department shall have 7 days to review the information and notify the applicant whether the application for approval is complete and, if it is not complete, what additional supplementary information is needed to complete the application for approval. As soon as the department deems the application for approval complete, the department shall notify the applicant and the political subdivisions in which the property that is the subject of the application is located.

SB808,9,15 4. Beginning on the first day after the department deems an application for approval complete, the department shall provide 30 days for receiving public comments on the application for approval. The department may hold a public hearing during the public comment period.

SB808,9,17 5. a. The department shall approve or disapprove an application for approval no more than 10 days after the close of the public comment period under subd. 4.

SB808,9,20 b. Except as provided in subd. 5. c., the department shall approve an application for approval if the proposed livestock facility siting or expansion satisfies the standards promulgated by rule under sub. (2) (a).

SB808,9,24 c. If an application for approval involves a proposed livestock facility siting or expansion located in a political subdivision that enacts a requirement under sub. (3) (i) 1., the department shall approve the facility's application for approval if the facility satisfies the requirements enacted under sub. (3) (i) 1. and standards promulgated by rule under sub. (2) (a) that are consistent with the requirements enacted under sub. (3) (i) 1.

SB808,11,8 6. Notwithstanding subd. 5. a., if the department of natural resources notifies the department of agriculture, trade and consumer protection that the facility that is proposed for expansion by the applicant has been the subject of 2 or more notices of violation within the preceding 18 months that allege violations concerning actual discharges of manure or process wastewaters from the facility in violation of ch. 283, any rule promulgated under ch. 283, or any permit issued under ch. 283, the department of agriculture, trade and consumer protection is not required to approve or disapprove the application for approval within 10 days of the close of the public comment period under subd. 4., unless the department of agriculture, trade and consumer protection concludes that the application is consistent with resolving the notices of violation. The department of agriculture, trade and consumer protection shall consult with the department of natural resources after receiving notification under this subdivision. The department of natural resources shall make a written determination of whether the facility remains in significant noncompliance as alleged in the notices of violation and shall provide a copy of the written determination to the department of agriculture, trade and consumer protection and the applicant within 30 days of the close of the public comment period under subd. 4. If the written determination of the department of natural resources is that the facility remains in significant noncompliance, not later than every 30 days thereafter the department of natural resources shall make and submit to the department of agriculture, trade and consumer protection an additional written determination of whether the facility remains in significant noncompliance until the department of natural resources makes and submits a written determination that the facility is no longer in significant noncompliance. Notwithstanding subd. 5. a., if this subdivision applies, the department of agriculture, trade and consumer protection shall approve or disapprove an application for approval no more than 10 days after the department of natural resources provides the department of agriculture, trade and consumer protection with its written determination that the facility does not remain in significant noncompliance as alleged in the notices of violation. This subdivision does not apply to an application for approval if the department of natural resources determines that the applicant will address all actual or alleged violations.