ATCP 51.10 Note
Note: The livestock facility siting law, s.
93.90, Stats., limits the reasons for which a political subdivision may deny local approval. For the first 6 months after the effective date of this chapter, from May 1, 2006 to November 1, 2006, a political subdivision may deny local approval based on standards in this chapter without incorporating those standards by local ordinance.
See sub. (1). Sub. (2) applies beginning on November 1, 2006.
ATCP 51.10(3)
(3) More stringent local standards. A political subdivision may not apply local standards that are more stringent than the standards in this subchapter unless all of the following apply:
ATCP 51.10(3)(a)
(a) The political subdivision is authorized to adopt the local standards under other applicable law.
ATCP 51.10(3)(b)
(b) The political subdivision enacted the standards by local ordinance, before the livestock facility operator filed the application for local approval.
ATCP 51.10(3)(c)
(c) The political subdivision enacted the standards based on reasonable and scientifically defensible findings of fact adopted by the political subdivision's governing authority.
ATCP 51.10(3)(d)
(d) The findings of fact under
par. (c) clearly show that the standards are needed to protect public health or safety.
ATCP 51.10(4)
(4) Ordinance provisions filed with department. Within 30 days after a political subdivision enacts an ordinance provision under
sub. (2) or
(3), the political subdivision shall file a copy of the ordinance provision with the department. Failure to file the ordinance provision with the department does not invalidate the ordinance provision. The political subdivision shall file the ordinance provision, by mail or e-mail, at the following applicable address:
Wisconsin Department of Agriculture,
Trade and Consumer Protection
Agricultural Resource Management Division
Bureau of Land and Water Resources
P.O. Box 8911
Madison, WI 53708-8911
E-mail:
livestocksiting@wisconsin.govATCP 51.10 History
History: CR 05-014: cr.
Register April 2006 No. 604, eff. 5-1-06;
correction in (4) made under ss. 13.92 (4) (b) 6. and s. 35.17, Stats., Register May 2020 No. 773. ATCP 51.12
ATCP 51.12 Livestock structures; location on property. ATCP 51.12(1)(1)
Property line and road setbacks; general. Livestock structures shall comply with local ordinance requirements related to setbacks from property lines and public roads, except that no local setback requirement may do any of the following:
ATCP 51.12(1)(a)
(a) Require a livestock structure to be set back more than 100 feet from any property line or public road right-of-way, except as provided in
sub. (2), if the livestock facility will have fewer than 1,000 animal units.
ATCP 51.12(1)(b)
(b) Require a livestock structure to be set back more than 200 feet from any property line, or more than 150 feet from any public road right-of-way, except as provided in
sub. (2), if the livestock facility will have 1,000 animal units or more.
ATCP 51.12(1)(c)
(c) Prevent the use of a livestock structure that was located within the setback area prior to the effective date of the setback requirement.
ATCP 51.12(1)(d)
(d) Prevent the expansion of a livestock structure that was located within the setback area prior to the effective date of the setback requirement, other than an expansion toward the property line or public road to which the local setback applies.
ATCP 51.12 Note
Note: Many local jurisdictions have established basic property line and road setback requirements by ordinance. Setbacks vary depending on local circumstances, and often reflect years of local experience. Subsection (1) honors local setback requirements, provided that the setbacks do not exceed the limits specified in sub. (1).
ATCP 51.12(2)
(2) Manure storage structure; setback. A waste storage structure may not be located within 350 feet of any property line, or within 350 feet of the nearest point of any public road right-of-way, unless one of the following applies:
ATCP 51.12(2)(a)
(a) The location of the waste storage structure complies with a local ordinance that specifies a shorter setback that is specific to waste storage facilities or waste storage structures.
ATCP 51.12(2)(b)
(b) The waste storage structure existed prior to May 1, 2006. This paragraph does not authorize an expansion, toward a property line or public road right-of-way, of a waste storage structure that is located within 350 feet of that property line or public road right-of-way.
ATCP 51.12(2)(c)
(c) The waste storage structure is a single new waste storage structure constructed no closer to the relevant property line or public road than a waste storage structure that existed on the same tax parcel prior to May 1, 2006, provided that the new structure is no larger than the existing structure and is located within 50 feet of the existing structure.
ATCP 51.12 Note
Note: See definition of “waste storage structure" in s.
ATCP 51.01 (44).
ATCP 51.12(3)
(3) Navigable waters and wetlands. A livestock facility shall comply with an applicable shoreland or wetland zoning ordinance that is enacted within the scope of authority granted under s.
59.692,
61.351 or
62.231, Stats.
ATCP 51.12 Note
Note: Essentially all navigable waters are now protected by ordinances that require building setbacks of 75 feet or more (depending on the ordinance). Zoning restrictions, if any, typically apply to
new or enlarged structures. A zoning ordinance applies for purposes of sub. (3) if it is enacted within the scope of statutory authority under s.
59.692,
61.351 or
62.231, Stats., even if it is also enacted under other authority.
ATCP 51.12(4)
(4) Floodplain. A livestock facility shall comply with an applicable floodplain zoning ordinance that is enacted within the scope of statutory authority under s.
87.30, Stats.
ATCP 51.12 Note
Note: County or local zoning ordinances currently apply to many, but not all, waterways (not all waterways have mapped floodplains). Zoning restrictions, if any, typically apply to
new or enlarged structures. A zoning ordinance applies for purposes of sub. (4) if it is enacted within the scope of statutory authority under s.
87.30, Stats., even if it is also enacted under other authority.
ATCP 51.12(5)(b)
(b) Except as provided in
par. (c), new or substantially altered livestock structures shall be separated from existing wells by the distances required in
chs. NR 811 and
812, regardless of whether the livestock facility operator owns the land on which the wells are located.
ATCP 51.12(5)(c)
(c) Paragraph (b) does not prohibit the alteration of a livestock structure that existed on May 1, 2006, unless that alteration reduces the distance between the livestock structure and an existing well.
ATCP 51.12 Note
Note: DNR rules under chs.
NR 811 and
812 spell out well construction and well location standards to protect water supplies. Violation of well setback requirements in ch.
NR 811 or
812 may prevent use of a well. DNR may grant appropriate variances, as provided in chs.
NR 811 and
812.
ATCP 51.12(6)
(6) Presumption. For purposes of local approval, a livestock facility is presumed to comply with this section if the application for local approval complies with
s. ATCP 51.30.
ATCP 51.12 Note
Note: Under s.
ATCP 51.30, an application must be complete, credible and internally consistent. The application must include an area map, a site map, and a certification that the livestock facility complies with this section (
see Appendix A). A local approval is conditioned upon compliance in fact (
see s.
ATCP 51.34 (4)). The presumption in sub. (6) may be rebutted by clear and convincing evidence in the record (
see s.
ATCP 51.34 and
51.36).
ATCP 51.12 History
History: CR 05-014: cr.
Register April 2006 No. 604, eff. 5-1-06.
ATCP 51.14(1)
(1)
Odor standard. Except as provided in
subs. (2) to
(4), a livestock facility shall have an odor score of at least 500. The operator shall calculate the odor score according to
Appendix A, worksheet 2, or by using the equivalent spreadsheet provided on the department's website. An application for local approval shall include
worksheet 2 or the spreadsheet output.
ATCP 51.14 Note
Note: The spreadsheet equivalent of
Appendix A, worksheet 2 is available on the department's website at
http://livestocksiting.wi.gov/ .
ATCP 51.14 Note
Odor score is based on predicted odor generation (based on size and type of livestock facility), odor practices, and the proximity and density of “affected neighbors." See Appendix A, worksheet 2.
ATCP 51.14 Note
An odor score is a predictive estimate. The standard in sub. (1) applies only for purposes of local livestock facility siting decisions under this chapter. Failure to comply with the standard in sub. (1) does not constitute evidence of a public or private nuisance, negligence, or a taking of property.
ATCP 51.14 Note
Odor control practices may also control air pollution emissions. The department will work to coordinate odor and air emissions field research with DNR, the Wisconsin agricultural stewardship initiative (WASI), and the University of Wisconsin. The department will consider research results when it reviews this chapter at least once every 4 years (see s.
93.90 (2) (c), Stats.). As part of its review, the department will consult with an advisory committee that includes representatives of livestock producers, local government and environmental interests. The department will consider amendments to this rule, as appropriate, based on research findings.
ATCP 51.14(2)
(2) Exemptions. The odor standard in
sub. (1) does not apply to any of the following livestock facilities unless the facility operator voluntarily completes and submits
worksheet 2 or the equivalent spreadsheet output with the operator's application for local approval:
ATCP 51.14(2)(b)
(b) An expanded livestock facility with fewer than 1,000 animal units.
ATCP 51.14(2)(c)
(c) A livestock facility in which all livestock structures will be located at least 2,500 ft. from the nearest affected neighbor.
ATCP 51.14 Note
Note: “Affected neighbors" (ATCP 51.01 (2)) are residences or “high-use buildings" (ATCP 51.01 (16)) other than those owned by the livestock operator or by persons who agree to be excluded from odor score calculations under sub. (1).
ATCP 51.14(3)
(3) Clusters. If all of the livestock structures in a livestock facility are divided among 2 or more clusters, such that no cluster is located closer than 750 feet to any other cluster, an operator may choose to calculate an odor score under
sub. (1) for each cluster rather than for the entire livestock facility. Each cluster shall comply with the odor standards in
sub. (1).
ATCP 51.14 Note
Note: For example, a dairy operator can take advantage of sub. (3) if a proposed dairy facility includes a milking operation (cluster 1) and a heifer facility (cluster 2) located 800 feet from each other.
ATCP 51.14(4)(a)(a) Notwithstanding
sub. (1), a political subdivision may in its discretion approve a livestock facility with an odor score of less than 500, provided that the odor score is not less than 470.
ATCP 51.14(4)(b)
(b) If a political subdivision exercises its discretionary authority under
par. (a), its written decision under
s. ATCP 51.34 (3) shall state the reason or reasons for that exercise of discretionary authority.
ATCP 51.14(4)(c)
(c) The livestock facility siting review board may not review any of the following under s.
93.90 (5), Stats.:
ATCP 51.14(4)(c)1.
1. A political subdivision's exercise, or refusal to exercise, discretionary authority under
par. (a).
ATCP 51.14(4)(c)2.
2. The adequacy of the political subdivision's stated reasons under
par. (b) for exercising discretionary authority under
par. (a).
ATCP 51.14 Note
Note: A political subdivision must approve a livestock facility that meets the odor standard under sub. (1), assuming that the facility meets other livestock facility siting standards under this chapter (see ATCP 51.34 (1)).
ATCP 51.14 Note
A political subdivision may not approve a livestock facility that fails to meet the odor standard under sub. (1), except that the political subdivision may exercise its discretionary authority under sub. (4) (a) in favor of an applicant if it chooses to do so. For example, a political subdivision may exercise its discretionary authority under sub. (4) (a) based on factors such as community tolerance, the applicant's near attainment of a standard, innovative odor control practices, local land use plans, or the applicant's past reputation for good management and community relations.
ATCP 51.14(5)
(5) Credits for odor control practices. In the calculation of predicted odor under
sub. (1), an operator may claim credit for all of the following:
ATCP 51.14(5)(a)
(a) Odor control practices, identified in
Appendix A, worksheet 2, which the operator agrees to implement. For each odor control practice, the operator may claim a credit specified in
Appendix A, worksheet 2.
ATCP 51.14(5)(b)
(b) An odor control practice not identified in
Appendix A, worksheet 2 if the department pre-approves a credit for that practice. The operator shall claim the pre-approved credit according to the procedure specified in
Appendix A, worksheet 2.
ATCP 51.14(5)(c)
(c) An operator seeking department approval under
par. (b) shall submit all of the following to the department in writing:
ATCP 51.14(5)(c)1.
1. A clear description of the odor control practice for which the operator seeks an approved credit.
ATCP 51.14(5)(c)2.
2. Scientific evidence to substantiate the efficacy of the odor control practice under relevant conditions.
ATCP 51.14(5)(d)
(d) The department may approve a credit for an odor control practice under
par. (b) if, in the department's opinion, there is adequate scientific evidence to show that under relevant conditions the practice will result in odor reduction commensurate with the approved credit. The department shall grant or deny the request within 90 days after the department receives the request.
ATCP 51.14 Note
Note: An odor control practice credit under sub. (5) is expressed, in the odor score calculation in Appendix A, worksheet 2, as a multiplier value (the lower the multiplier, the greater the benefit to the livestock operator).
ATCP 51.14(6)(a)(a) Whenever an operator seeks local approval for the expansion of a livestock facility previously approved under this chapter, the operator may calculate an odor score under
sub. (1) by reference to the same affected neighbors referenced in the odor score calculation for the prior local approval. The operator is not required to include, in the new odor score calculation, an affected neighbor that was not referenced in the odor score calculation for the prior local approval.
ATCP 51.14(6)(b)
(b) Paragraph (a) applies regardless of any change in ownership of the livestock facility since the prior local approval, and regardless of the amount of time that has passed since the prior local approval, provided that the prior local approval has not been lawfully withdrawn for good cause under
s. ATCP 51.08 (2) or
51.34 (4) (b).
ATCP 51.14 Note
Note: The odor score calculation in Appendix A, worksheet 2 is partly based on the proximity and density of “affected neighbors" (see ATCP 51.01 (2)). An application for local approval documents those “affected neighbor" reference points. Subsection (6) protects an operator against the effects of encroaching development, without regulating that development directly.
ATCP 51.14 Note
A local government must keep a complete record of each local approval for at least 7 years, and must file with DATCP a copy of each approval (including the application on which it was based). The local government must also provide the livestock operator with documentation of the local approval, including the maps on which the approval was based (
see s.
ATCP 51.34 (3) (b)). The approved maps document the “odor score" reference points for purposes of sub. (6).
ATCP 51.14 Note
The livestock operator can record the local approval (including mapped “odor score" reference points) with the local register of deeds, and can convey the documentation to subsequent purchasers. In those ways, an operator can document previously-approved “odor score" reference points for purposes of a subsequent expansion.
ATCP 51.14(7)
(7) Presumption. For purposes of local approval, a livestock facility is presumed to comply with this section if the application for local approval complies with
s. ATCP 51.30.
ATCP 51.14 Note
Note: Under s.
ATCP 51.30, an application must be complete, credible and internally consistent. The application must include, among other things, a worksheet (or equivalent spreadsheet output) that shows compliance with this section.
See Appendix A, worksheet 2. Local approval is conditioned upon compliance in fact (
see s.
ATCP 51.34 (4)). The presumption in sub. (7) may be rebutted by clear and convincing evidence in the record (
see s.
ATCP 51.34 and
51.36).
ATCP 51.14 History
History: CR 05-014: cr.
Register April 2006 No. 604, eff. 5-1-06.
ATCP 51.16(1)(a)1.
1. Land applications of waste from a livestock facility approved under this chapter shall comply with NRCS nutrient management technical standard 590 (September, 2005), except for sections V.A.2.b(2), V.D, V.E and VI.
ATCP 51.16 Note
Note: NRCS nutrient management technical standard 590 (September, 2005) is reprinted in Appendix B. The following sections of the reprinted standard do not apply for purposes of this chapter:
ATCP 51.16 Note
V.A.2.b(2), related to additional requirements imposed by local conservation plans.
ATCP 51.16 Note
V.D, related to additional criteria to minimize N and particulate air emissions.
ATCP 51.16 Note
V.E, related to additional criteria to protect the physical, chemical and biological condition of the soil.
ATCP 51.16 Note
VI, related to discretionary considerations.
ATCP 51.16(1)(a)2.
2. A nutrient management checklist, shown in
Appendix A, worksheet 3, part C, shall accompany an application for local approval. A qualified nutrient management planner, other than the livestock operator, shall answer each checklist question. The planner shall have reasonable documentation to substantiate each answer, but neither the planner nor the operator is required to submit that documentation with the checklist.
ATCP 51.16 Note
Note: A livestock operator is not required to submit a complete nutrient management plan with an application for local approval. Both the operator and the qualified nutrient management planner must sign the nutrient management checklist. See Appendix A, worksheet 3, part C.
ATCP 51.16(1)(b)
(b) A political subdivision may ask a nutrient management planner to submit the documentation that the planner relied upon to substantiate the planner's answer to one or more questions on the nutrient management checklist under
par. (a) 2. The political subdivision may deny local approval if the planner's documentation does not reasonably substantiate the answer.
ATCP 51.16(1)(c)
(c) Paragraph (a) does not apply to a livestock facility with fewer than 500 animal units unless the operator's ratio of acres to animal units, calculated according to
Appendix A, worksheet 3, part B, is less than 1.5 for dairy and beef cattle, 1.0 for swine, 2.0 for sheep and goats, 2.5 for chickens and ducks, and 5.5 for turkeys.
ATCP 51.16 Note
Note: A waste and nutrient management worksheet (Appendix A, worksheet 3) must accompany every application for local approval. Among other things, the worksheet shows the operator's ratio of acres to animal units under par. (c).
ATCP 51.16 Note
Paragraph (c) is an exemption, not a requirement, for livestock facilities. If a livestock facility qualifies for exemption under par. (c), the operator is not required to submit a nutrient management checklist under par. (a). The ratios stated in par. (c) are based on the phosphorus content of manure from the respective livestock species.
ATCP 51.16(2)
(2) Presumption. For purposes of local approval, an operator is presumed to comply with
sub. (1) if the application for local approval complies with
s. ATCP 51.30.
ATCP 51.16 Note
Note: Under s.
ATCP 51.30, an application must be complete, credible and internally consistent. The application must include, among other things, a
waste and nutrient management worksheet (Appendix A, worksheet 3). The completed
worksheet must include all of the following:
