Livestock bill ‘streamlines’ permitting process

By: - February 14, 2020 10:41 am
Wisconsin dairy cows in large animal feeding operation

Wisconsin dairy CAFO (Photo courtesy of Wisconsin DNR)

Legislation that would make a sweeping change to the process for municipalities to weigh in on large livestock operations ran into resistance Thursday as lawmakers conducted a public hearing on the measure.

Advocates for AB-894 in the Assembly and SB-808 in the Senate — the result of collaboration between some farm lobbying groups and the Wisconsin Towns Association — said the bill would streamline and speed up the process dictated by a 14-year-old rule from the Department of Agriculture, Trade and Consumer Protection (DATCP).

The bill would also give farm groups effective veto power over a rewrite of the siting rules. 

But representatives of Wisconsin Farmers Union and Midwest Environmental Advocates, as well as Democratic lawmakers, expressed frustration Thursday about having been cut out of the development of the bill, which was already being given a hearing even though it was just introduced on Monday, Feb. 10.

And DATCP itself, which would gain extensive new responsibilities if the measure is enacted, wasn’t briefed on the bill’s specifics until the day before the hearing, two days after the bill was introduced, one of the authors acknowledged.

Thursday’s hearing on the bill was a joint effort of the Assembly Agriculture Committee and the Senate Committee on Agriculture, Revenue and Financial Institutions.

Fourteen-year-old rule

At the center of the legislation is ATCP Rule 51, which took effect in 2006 and created a statewide standard for local governments to  regulate large livestock farms, including concentrated animal feeding operations, or CAFOs. 

The Department of Natural Resources (DNR) regulations address runoff management for all farms, and CAFOs with 1,000 or more animals must obtain water quality permits from the DNR.

The agriculture department rule is in addition to those requirements, and was instituted in response to conflicts over local municipalities as they attempted to require permits of their own alongside the DNR regulations.

Under the law that authorized the DATCP rule, local municipalities and counties have a choice about whether they want to impose permits for large livestock operations. If they opt to require a permit, however, they must adopt the standards set in Rule 51.

About one-third of the state’s 72 counties and 8% of Wisconsin towns have implemented the rule and established livestock site permitting, according to the Wisconsin Towns Association’s executive director, Mike Koles.

The law authorizing the DATCP rule calls for the department to conduct a technical review every four years, using the review’s conclusions to revise the rule. 

To date the department has three times commissioned a review board to recommend updates, but none of those situations  led to a final revision. DATCP put out a stricter revised rule for public comment in the summer of 2019, but Brad Pfaff — Gov. Tony Evers’ DATCP secretary-designee at the time — withdrew it in the face of criticism from farm groups whose members included large livestock operations. The state Senate subsequently fired Pfaff on a party-line vote.

Towns association, industry collaborate

Lobbyists for the Wisconsin Towns Association and for the livestock industry testified Thursday that the new bill arose in the aftermath of the controversy over the proposed revision, when the farm groups and the towns association began discussing ways to modify the siting law to suit their needs.

The bill’s biggest change is creating a new role for DATCP in evaluating permit applications where they are required.

Counties, villages, towns and cities would still have the option of deciding whether or not to require permits for opening or expanding a livestock operation. If a municipality decides to require a permit, however, DATCP would receive and review the application rather than the local municipality. The department would forward a copy of the application to the municipality where the prospective site is to be located, but it would be DATCP’s responsibility to ensure the application is complete.

Once it is complete, the department would be required to provide a 30-day waiting period for public comments on the application, and would have to approve or reject the application within 10 days after the comment period closes.

If the applicant complies with the DATCP livestock facility siting rules, it would be mandatory that DATCP approve the application. If the local municipality has a more stringent standard — which the bill says it could only enact if based on “reasonable and scientifically defensible findings of fact” — DATCP would evaluate the application against the local standard.

Once DATCP approves an application, the municipality or county would be required to notify landowners adjacent to the site and approve or deny the application within 60 days. A local government could block a siting that had DATCP’s approval only if the site was in violation of setback requirements in the bill; the location wasn’t zoned properly; or for building, electrical or plumbing code violations.

Making processes more certain

Under the current law, the application is submitted directly to the local government requiring the permit, which then takes responsibility for evaluating the application.

State Rep. Travis Tranel

“The way it currently works now, we are asking our town boards a lot of times to make decisions that they’re just not necessarily comfortable or equipped to make,” said state Rep. Travis Tranel (R-Cuba City), one of the bill’s co-authors. Also listed as co-authors are Sen. Howard Marklein (R-Spring Green) and Rep. Gary Tauchen (R-Bonduel).

“One of the goals of the farm groups was to have a process that was more certain,” Marklein said.

“Right now what we’re asking local government to do is to process a bunch of state rules,” said Koles, the Wisconsin Towns Association executive director. The rule is complex, and evaluating an application under it requires local governments to incur the expense of hiring outside experts such as scientists and lawyers, he continued, which has discouraged many towns from adopting the rule.

The bill authorizes a limit on the town permit fee of up to $1,000, and also sets a fee of up to $750 that DATCP can charge for its part in the application review process.

Koles said local communities are still able to use zoning restrictions to limit where CAFOs can be located, although he noted that by law a municipality that has agriculture zoning would be forced to allow operations without a size limit somewhere within its borders.

Farmer input on rules changes

The current law established a Livestock Facility Siting Review Board to hear challenges to a local municipality’s decision on a livestock siting application. The new bill would also allow the local government to appeal DATCP’s decision on the application to the review board.

The current law also provides for a technical advisory committee to examine the DATCP rule every four years but doesn’t specify its makeup. The bill would replace that with a new technical review board nominated by the agriculture secretary and confirmed by the Senate.

The proposed nine-member board would include one member from each of five different agricultural organizations; the other four would consist of one member each from the Wisconsin Towns Association, the Wisconsin Counties Association and the Land and Water Conservation Association, and one collectively representing several environmental groups. 

To change livestock siting rules would require a two-thirds majority, or six votes, from the technical review board. Four farm groups opposed to a rule change would be enough to block it. 

“We need to have farmers on the committee,” said Cindy Leitner, president of the Wisconsin Dairy Alliance, blaming the absence of farmers on the existing technical review committee for the opposition that farm groups mounted to the 2019 proposed rule revision. The Dairy Alliance represents CAFOs.

The bill would abolish the four-year-review cycle; Leitner said that was because DATCP has the authority to review the rule at any time.

Left out of the discussion

The bill’s advocates presented it as the result of compromise and collaboration. “We spent a lot of time going through this with a lot of input from ag groups, counties and towns,” Marklein said.

Sen. Janis Ringhand casual photo
Sen. Janis Ringhand

But Democratic lawmakers and some hearing witnesses said the collaboration had excluded others with a stake in the issue.

Noting the new responsibilities the bill assigned to the agriculture department, Sen. Janis Ringhand (D-Evansville) asked Marklein, “Did you consult with DATCP during that [bill-writing] process and see what their thoughts were?”

Marklein said that “around Christmastime” he had spoken to DATCP’s deputy secretary and acting head, Randy Romanski, but “at that time we didn’t have a whole lot” in the way of specifics. “We did meet yesterday for a long time with him and the staff,” Marklein added.

State Rep. Mark Spreitzer (D-Beloit) questioned several of those involved in drafting the legislation about its timing in light of its complexity and with the Legislature expected to adjourn for the rest of the year by early March.

“How do you see the process playing out here, and how do you justify rushing through rather than making sure to get it right?” Spreitzer asked Koles of the towns association and the association’s lobbyist, attorney Larry Konopacki.

Konopacki replied that those involved in drafting the bill had been working on it for three months. “We’ve gone so painstakingly through every detail of this, it’s very refined,” he said. Spreitzer retorted that no Democrats in the Legislature had been enlisted on the project. “You know where to find me,” he said.

DATCP could face challenges

Offering testimony from DATCP for information — neither favoring nor opposing the bill — Angela James, assistant deputy secretary, outlined the complicated process for producing and getting approval for administrative rules to implement the legislation, along with the challenges of providing necessary staffing to carry out its intent. (Marklein and Tranel had earlier said the legislation was to take effect just two days after being enacted.)

Other witnesses also criticized the short timeline for the bill.

“The speed with which this legislation is moving means that important voices are being overlooked and ignored,” said Adam Voskuil, an attorney with Midwest Environmental Advocates. “Though promoted as a means to streamline local approvals, in effect, this law could limit what little local authority governments have to regulate Wisconsin’s largest industrial agricultural facilities.”

Backers of the bill disputed Sen. Jeff Smith (D-Eau Claire), who contended that the bill mainly serves the interests of CAFOs in the state, a little more than 300 of the 8,000 dairy farms currently operating, while doing nothing for the vast majority of smaller farms.

“The siting law doesn’t just help large farms,” said Jordan Lamb, a lawyer for the Wisconsin Pork Association. “This is about anybody who is looking at expanding livestock agriculture in an area that has adopted livestock siting.”

In the same vein, Tranel said that more and more farmers, whatever the current size of their herd, would probably have to go through the bill’s permitting process “as farmers are continually having to get bigger and consolidate, not because they want to, but because they have to to compete.”

Several speakers favoring the bill argued that letting farms grow as large as their owners wanted was necessary to save the rural economy. But Kara O’Connor, lobbyist for the Wisconsin Farmers Union, said research has shown that rural communities thrive more when farms are smaller, supporting a more diverse local economy, than when they are dominated by a few large players. The Farmers Union opposes the bill and has called for stricter regulation of large livestock operations.

“We see greater economic activity and vitality in communities with more farms rather than fewer,” O’Connor said.

The issue, said another witness, Peg Sheaffer, is not one of farmers on one side pitted against others who are critics of CAFOs.

Sheaffer, who identified herself as having farmed with her husband for nearly two decades, said that in the 24 hours leading up to Thursday’s hearing she’d been in touch with more than two dozen friends and neighbors in Green and Rock counties who were upset with the bill, including farmers.

One couple, she testified, operate a small farm in Green County that is bordered by a CAFO with a herd of 6,000 cows that opened in 2016, “and they have paid the price over and over again for a livestock siting process that pays little heed to the concerns of local communities.”

The operation is in a low-lying area, and this past fall the family was forced out of their home for an evening as the couple and their children all felt ill from the fumes of manure being spread around the neighboring farm.

“I strongly disagree with the attempt to frame this as a conversation that puts farmers on one side and everybody else on the other,” Sheaffer said. “The organizations that were given the opportunity to weigh in — the Dairy Business Association, the Dairy Alliance and others — represent only a small subset of farmers: those with enough money and power to have full-time lobbyists at the Capitol.”

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Erik Gunn
Erik Gunn

Deputy Editor Erik Gunn reports and writes on work and the economy, health policy and related subjects, for the Wisconsin Examiner. He spent 24 years as a freelance writer for Milwaukee Magazine, Isthmus, The Progressive, BNA Inc., and other publications, winning awards for investigative reporting, feature writing, beat coverage, business writing, and commentary.