ATCP 51.04 HistoryHistory: CR 05-014: cr. Register April 2006 No. 604, eff. 5-1-06. ATCP 51.06ATCP 51.06 Local approval of existing livestock facilities. ATCP 51.06(1)(1) General. Except as provided in sub. (2), a local ordinance may not require local approval under this chapter for any of the following: ATCP 51.06(1)(a)(a) A livestock facility that existed before May 1, 2006 or before the effective date of the local approval requirement. ATCP 51.06(1)(b)(b) A livestock facility that the political subdivision has already approved. A prior approval for the construction of a livestock facility implies approval for the maximum number of animal units that the approved livestock facility was reasonably designed to house, except as otherwise clearly provided in the approval. Prior approval of a single livestock structure, such as a waste storage structure, does not constitute prior approval of an entire livestock facility. ATCP 51.06 NoteNote: For example, if a political subdivision has already approved construction of a livestock facility that was reasonably designed to house up to 800 “animal units,” that approval authorizes the operator to keep up to 800 “animal units” at that facility (even if the scope of approval is not explicitly stated in terms of “animal units”).
ATCP 51.06(2)(2) Expansions. A local ordinance may require local approval under this chapter for the expansion of a pre-existing or previously approved livestock facility under sub. (1) if the number of animal units kept at the expanded livestock facility will exceed all of the following: ATCP 51.06(2)(b)(b) The maximum number previously approved or, if no maximum number was previously approved, a number that is 20% higher than the number kept on May 1, 2006 or on the effective date of the approval requirement, whichever date is later. ATCP 51.06 NoteNote: Consider the following examples:
ATCP 51.06 NoteExample 1: Suppose that a local ordinance enacted after May 1, 2006 requires local approval for livestock facilities with 500 or more “animal units.” “Local approval is not required” for a livestock facility that already has 600 “animal units” on the local ordinance effective date, unless the facility expands to more than 720 “animal units.” The number of “animal units” kept on the ordinance effective date means the largest number kept on at least 90 days in the 12 months prior to the ordinance effective date (see s. 93.90 (3) (e), Stats.). ATCP 51.06 NoteExample 2: Suppose that a local ordinance enacted prior to July 19, 2003 requires local approval of livestock facilities with 400 or more “animal units.” An expansion from 200 “animal units” (existing facility) to 450 “animal units” (expanded facility) will require local approval, unless the political subdivision has already given its approval. If the political subdivision has already approved construction of a livestock facility that is designed to house up to 450 “animal units,” the operator does not need further local approval unless the operator proposes to exceed 450 “animal units.”
ATCP 51.06 HistoryHistory: CR 05-014: cr. Register April 2006 No. 604, eff. 5-1-06. ATCP 51.08(1)(a)(a) Runs with the land and remains in effect despite a change in ownership of the livestock facility or the land on which it is located. ATCP 51.08 NoteNote: Some local ordinances may require a pro forma permit transfer with each transfer of ownership, but that transfer may not limit the scope of the prior approval.
ATCP 51.08(1)(b)(b) Remains in effect regardless of the amount of time that elapses before the livestock operator exercises the authority granted by the approval, and regardless of whether the livestock operator exercises the full authority granted by the approval. ATCP 51.08 NoteNote: For example, if a livestock operator gets local approval under this chapter to expand from 400 “animal units” (existing) to 900 “animal units”, the livestock operator may implement the approved expansion over a period of time chosen by the livestock operator. The operator does not lose the approval merely because the operator implements the expansion in gradual stages, or fails to expand by the full amount authorized. However, the operator must at least begin the expansion within 2 years, or face possible loss of approval. See sub. (2).
ATCP 51.08(2)(2) A political subdivision may withdraw a local approval granted under this chapter unless the livestock operator does all of the following within 2 years after a local approval is granted: ATCP 51.08(2)(b)(b) Begins construction on every new or expanded livestock housing structure, and every new or expanded waste storage structure, proposed in the application for local approval. ATCP 51.08(3)(3) If a local approval is appealed, the local approval is deemed to be granted for purposes of sub. (2) when the appeal is concluded. Withdrawal of a local approval under sub. (2) does not prevent a livestock operator from obtaining a new local approval under this chapter. ATCP 51.08 NoteNote: A political subdivision should exercise sound judgment in deciding whether to withdraw a local approval under sub. (2). The political subdivision may consider extenuating circumstances, such as adverse weather conditions, that may affect an operator’s ability to comply. A political subdivision should give the operator prior notice, and a reasonable opportunity to demonstrate compliance, before withdrawing a local approval.
ATCP 51.08 HistoryHistory: CR 05-014: cr. Register April 2006 No. 604, eff. 5-1-06. ATCP 51.10ATCP 51.10 Livestock facility siting standards; general. ATCP 51.10(1)(1) State standards apply. Except as provided in sub. (2) or (3), a political subdivision shall grant or deny local approvals covered by this chapter based on the standards in this subchapter. ATCP 51.10(2)(2) State standards incorporated in local ordinance. Beginning on November 1, 2006, a political subdivision may not deny a local approval covered by this chapter unless the political subdivision incorporates by local ordinance the standards in this subchapter and the application requirements in subch. III. A local ordinance may incorporate the standards and application requirements by reference, without reproducing them in full. ATCP 51.10 NoteNote: 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.gov ATCP 51.10 HistoryHistory: 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 51.12ATCP 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 NoteNote: 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 NoteNote: 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 NoteNote: 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 NoteNote: 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 NoteNote: 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 NoteNote: 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 HistoryHistory: 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 NoteNote: The spreadsheet equivalent of Appendix A, worksheet 2 is available on the department’s website at http://livestocksiting.wi.gov/ . ATCP 51.14 NoteOdor 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 NoteAn 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 NoteOdor 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 NoteNote: “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 NoteNote: 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 NoteNote: 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 NoteA 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.
