DATCP Docket No. 15-R-12 Proposed Hearing Draft
Clearinghouse Rule No. July 10, 2019
OF THE STATE OF WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes the following permanent rule to repeal ATCP 51.01 (2) and (Note), ATCP 51.01 (11) (Note), ATCP 51.01 (13) (Note), ATCP 51.01 (16), ATCP 51.01 (26) (Note), ATCP 51.12 (6) (Note), ATCP 51.30 (3) (Note), and ATCP 51.34 (3) (a) (Note) to renumber ATCP 51.06 (2) (intro.), (a) and (b), to amend ch. ATCP 51 (intro.) (Note), ATCP 51.01 (5) (Note), ATCP 51.01 (7), ATCP 51.01 (19), ATCP 51.01 (21)(intro.), ATCP 51.01 (23), ATCP 51.01 (24), ATCP 51.01 (29), ATCP 51.01 (33), ATCP 51.01 (36) (b) and (c), ATCP 51.01 (42), ATCP 51.01 (43), ATCP 51.01 (44), ATCP 50.02 (b) (Note), ATCP 51.04 (Note), ATCP 51.08 (1) (b) (Note), ATCP 51.10 (1) ATCP 51.10 (3) (d) (Note), ATCP 51.10 (4), ATCP 51.30 (5), ATCP 51.34 (3) (a), ATCP 51.34 (4) (intro.), ATCP 51.34 (4) (b) 2., and ATCP 51.34 (5) (a) 2. and 3.; to repeal and recreate ATCP 51.01 (39), ATCP 51.08 (2), ATCP 51.10 (2) and (Note), ATCP 51.12 (1) and (2), ATCP 51.14, ATCP 51.16, ATCP 51.18, ATCP 51.20, ATCP 51.30 (4) and (Note), ATCP 51.34 (4) (a), ATCP 51.34 (5) (b) and (c), Chapter ATCP 51, Appendix A, Application Form and Worksheets, Chapter ATCP 51, Appendix B, Request for Modification of a Local Approval, and Chapter ATCP 51, Appendix C, Notice To Adjacent Property Owners; and to create ATCP 51.01 (19m) and (Note), ATCP 51.01 (23m), ATCP 51.01 (33m), ATCP 51.01 (38m), ATCP 51.01 (44m), ATCP 51.06 (b), ATCP 51.10 (4) (Note), ATCP 51.12 (2m) (a) and (b) and (Note), ATCP 51.30 (1) (Note), ATCP 51.30 (4m), ATCP 51.34 (4m), and ATCP 51.34 (5) (a) 3. (Note), relating to livestock facility siting and affecting small business.
Analysis Prepared by the Department of
Agriculture, Trade and Consumer Protection
First adopted in May 2006, Wis. Admin. Code ch. ATCP 51 (“ATCP 51”) established the statewide framework of standards and procedures required to implement Wisconsin’s livestock facility siting law, Wis. Stat. § 93.90. The requirements only apply to livestock operators located in jurisdictions that have adopted ordinances requiring permits for new or expanding livestock facilities that exceed a certain size (commonly 500 animal units). The Department of Agriculture, Trade and Consumer Protection (“Department”) is required to review Wis. Admin. Code Ch. ATCP 51 every four years in accordance with Wis. Stat. § 93.90(2)(c). To this end, the Department convened a Technical Expert Committee (“TEC”) that provided recommendations regarding changes to ATCP 51. The proposed rule is intended to ensure consistency among related rules (Wis. Admin. Code chs. NR 151 and ATCP 50, respectively referred to as “NR 151” and “ATCP 50”), which were revised to implement a new nutrient management technical standard and additional farm runoff standards designed to better control discharges of process wastewater, and meet phosphorus index targets for nutrient management. The ATCP 51 revision also addresses issues arising out of the mandatory four year review of this rule. The proposed revision retains the essential regulatory framework, including the core water quality standards. Improvements in standards are intended to advance the statutory goal of “providing uniform regulation of livestock facilities” and better balance the factors listed in Wis. Stat. § 93.90(2)(b), which the Department must use to establish state standards. The rule revisions reflect the recommendations of the TEC, which originally conducted its review in 2014 and then was reconvened in 2018 to provide input regarding the draft rule.
Statutes interpreted: Wis. Stats. §§ 92.05(3)(c) and (k), 93.90 and 281.16(3)(b).
Statutory authority: Wis. Stats. §§ 93.07(1), 92.05(3)(c) and (k), 92.14(8), 93.90(2) and 281.16(3)(b).
Explanation of Agency Authority
The Department has general authority to adopt rules interpreting statutes under its jurisdiction (see Wis. Stat. § 93.07(1)). The Department is specifically authorized to adopt farm conservation standards (see Wis. Stats. §§ 92.05(3)(k) and 281.16(3)(b)). Under Wis. Stat. § 93.90, the Department must do all of the following by rule:
Develop and update water quality, odor, setback, and other standards for new or expanding livestock facilities that require a permit or other local approval. The standards may incorporate, and may not conflict with, current statutes and rules regulating livestock operations including the performance standards, conservation practices, and technical standards that apply under nonpoint source pollution programs.
Review ATCP 51 standards and other requirements at least every four years, in consultation with a committee of experts.
Evaluate whether existing or proposed standards are: (1) protective of public health or safety; (2) practical and workable; (3) cost-effective; (4) objective; (5) based on scientific information; (6) designed to promote the growth and viability of animal agriculture; (7) designed to balance the economic viability of farm operations with natural resource protection and other community interests; and (8) usable by local officials.
Develop and update application materials and other submissions that livestock operators must provide when applying for local approval, to show that a new or expanding livestock facility will comply with the standards adopted by the Department.
Specify the information that a local government must include in its decision making record. A local decision must include findings of fact, and must be based on information in the record. This record will be important if an aggrieved party appeals the local government’s decision.
Related Statutes and Rules
This rule is related to Wis. Stats. §§ 92.05 (3) (c) and (k), 92.14 (8), 92.15, 92.16, 281.16 (3), and ch. 283, and rules promulgated under these statutes including the nonpoint source pollution control rules, ATCP 50 and NR 151 (collectively referred to as the “nonpoint rules”).
Plain Language Analysis
Updates the water quality standards, including related Natural Resources Conservation Service (“NRCS”) technical standards, to ensure consistency with provisions in NR 151 and ATCP 50, including incorporation of the 2017 NRCS standard for waste storage structures, 2015 NRCS standard for nutrient management, the 2017 NRCS standard for waste treatment, and the 2016 NRCS standard for vegetated treatment areas.
Modifies standards (subch. II of ATCP 51) consistent with the requirements in Wis. Stat. § 93.90(2), based on the technical recommendations of the 2014 and 2018 Technical Expert Committees and stakeholder input. Key changes include modifications to setback and odor standards.
Modifies 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 including those used to determine completeness of siting applications, modifications to siting permits, the use of checklists to monitor facility compliance, and the fees local governments charge for permit modifications.
Modifies local permit application forms and worksheets to reflect changes in requirements and to ensure that they are clear, complete, and elicit information that documents compliance with applicable siting standards.
Makes other changes, clarifications and updates as necessary to improve implementation of the siting rule, consistent with the requirements in Wis. Stat. § 93.90(2).
Contents of this Rule
The following is an analysis of the rule by topics.
Livestock Facilities, Structures, and other Definitions
This rule clarifies that a livestock facility includes the livestock, livestock structures, and parcels on land upon which livestock facility is located, except for pastures and winter grazing areas. Storage structures designed exclusively for process wastewater are excluded from the setback requirements that apply to manure storage structures.
This rule makes changes to definitions related to the prior odor standard, including elimination of the definition for affected neighbor and high use building, and modifications to the definition for waste storage structure to exclude solid manure from setback and odor requirements.
The definition of related facilities is expanded to cover process wastewater storage and transfer using or sharing the same structures, or same field for land application.