How a fast-tracked bill got stopped in its tracks

A fast-tracked bill that would have given farm groups a virtual veto power over changes to a Wisconsin rule governing large livestock farms has run aground over a one-word change.

The bill, AB-894 in the Assembly and SB-808 in the Senate, was introduced on Feb. 10 and the subject of a joint Assembly-Senate public hearing on Feb. 13. It appeared destined for swift Senate passage after making it out of  the Senate Committee on Agriculture, Revenue and Financial Institutions on a party-line 5-4 vote. 

Instead, it was referred back to the Senate Committee on Organization the same day.

On Monday, the Wisconsin Dairy Alliance, one of the organizations involved in drafting the bill, disclosed that it had moved to kill the legislation after  hearing testimony on a seemingly incidental element.

The result left the Dairy Alliance — the lobbying organization for concentrated animal feeding operations, or CAFOs — and its erstwhile collaborator, the Wisconsin Towns Association, at odds over the legislation.

“In the eleventh hour, with full information, the Wisconsin Dairy Alliance changed our minds and helped stop a proposed livestock siting bill,” a Dairy Alliance statement issued Monday morning said. “We are thankful we did.”

But Mike Koles, executive director of the Wisconsin Towns Association, told the Wisconsin Examiner on Monday that credit for the outcome belongs to the bill’s authors, in particular Sen. Howard Marklein (R-Spring Green). The lawmakers, Koles said, refused to accept a last-minute change to the bill sought by the Dairy Alliance and Wisconsin Manufacturers & Commerce that Koles said would have taken away local control over the livestock siting bill.

CAFO controversies

The bill sought by the towns association and Wisconsin Dairy Alliance, along with other farm and livestock industry groups, would have changed the process for implementing the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) rule on the regulation of large livestock farms, including CAFOs.

While the Department of Natural Resources (DNR) requires water quality permits for CAFOs with 1,000 or more animals and regulates runoff for all farms, the DATCP rule addresses how counties, towns, and other local units of government can impose additional livestock farm regulations.

The law authorizing the DATCP to institute ATCP Rule 51 took effect in 2006. It was passed to set uniform standards for local livestock farm permits after conflicts over local permits around the state. Local municipalities can choose whether or not to impose their own permits, but if they choose to, they must adopt the state’s standards.

About one-third of the state’s 72 counties and 8% of Wisconsin towns have implemented the rule to establish their own livestock site permit programs.

The law that authorized the rule calls for DATCP to conduct a technical review every four years and recommend revisions to the rule. In  2019 under Gov. Tony Evers’ administration, DATCP proposed a revised rule with new restrictions for the first time.

Farm groups representing large livestock operations, including the Wisconsin Farm Bureau Federation and the Wisconsin Dairy Alliance, protested the revisions and mounted a campaign of opposition. The criticism led DATCP to withdraw the rule, but the state Senate voted along party lines to fire Gov. Tony Evers’ DATCP secretary-designee at the time, Brad Pfaff.

After the rule was withdrawn, farm organizations opposed to the rule revision, along with the Wisconsin Towns Association and the Wisconsin Counties Association, collaborated to draw up the new livestock siting bill.

Permit evaluations, fees, and technical review

The bill:

Would have transferred to DATCP the task of evaluating permit applications for those local governments that implemented the rule, along with instituting a series of short-term deadlines for completing the process. The task of evaluating permit applications currently falls to local governments.

Would have written into law that local permit fees would be limited to $1,000 and DATCP fees for permit evaluation to $750. 

The existing Rule 51 also has a $1,000 limit on permit fees, but DATCP’s board learned late in 2019 that the limit lacked legal authority and would need to be deleted from the rule. 

Towns association lobbyists supporting the bill as well as critics of the bill on environmental grounds agreed that local governments can spend much more than that to employ technical experts to help assess a permit application. 

Would have eliminated the mandatory review of the rule every four years, on the grounds that DATCP can review a rule any time.

Would have replaced the technical review committee — the membership of which is not specified in the current law — with a new technical review board. 

Membership in the board was prescribed in the bill to include representatives of each of five farm groups, along with one member each representing the Wisconsin Towns Association, the Wisconsin Counties Association and the Land and Water Conservation Association, and one collectively representing several environmental groups. 

Farm groups who had criticized the 2019 revision complained that it was based on the work of technical review panels in 2014 and 2018 that didn’t include any farmers. 

The bill would have required six votes on the nine-member technical review board to recommend a change in the livestock siting rule. As a result, if four of the farm groups represented united to oppose a change, they could effectively block it even if the change was favored by a majority of the panel. 

Would have made a one-word revision to language about zoning restrictions for large livestock farms that was in the original law authorizing Rule 51.

Zoning language change

Critics of the bill, including environmentalists and the Wisconsin Farmers Union, raised questions about its introduction so close to the end of the current legislative session. The Assembly has already wrapped up work for 2020, and the Senate expects to conclude its final regular floor session before the end of March. 

The speed with which it was introduced, put before a public hearing, voted on in committee and sent to the Senate floor left Democratic legislators as well as citizens, environmental organizations, and the Wisconsin Farmers Union — all critical of CAFOs and concerned about the environmental impact of large livestock operations — upset about the process.

“I’m glad the Senate and Assembly leadership decided not to bring this bill to a vote,” State Rep. Mark Spreitzer (D-Beloit), a member of the Assembly Agriculture Committee, said Monday. “I think this bill was not ready for prime time.”

Another target for criticism were the new responsibilities the bill would have handed over to DATCP, without allowing for time to write regulations or prepare personnel for those new duties. 

But what led the Dairy Alliance to reverse course and call on lawmakers to stop the bill was the  zoning language revision, the group’s president, Cindy Leitner, told the Wisconsin Examiner.

The existing siting law allows towns and counties to use zoning to control livestock farming. Koles, the towns association executive director, explained that local zoning codes can include several agricultural classifications depending on the intensity of the operation. 

In a county or town with multiple classifications, a large livestock farm such as a CAFO would be zoned in the most intensive-agriculture classification, while smaller farms might be zoned in a less-intensive classification.

The sticking point in the bill involved a paragraph in the current law that says the local government can deny the permit in an agricultural zone “subject to” the first “and” the second of two conditions: 

• A government that limits the number of animals allowed on a farm in a particular agricultural zoning district must also have an agricultural zoning district and classification with no limit on the number of animals. 
• A government that includes an agricultural district prohibiting livestock facilities must use “reasonable and scientifically defensible findings of fact, adopted by the political subdivision, that clearly show that the prohibition is necessary to protect public health or safety.”

The revised bill changes “and” in the referring paragraph to “or.” And that’s where testimony at the public hearing from a Wisconsin Manufacturers & Commerce lobbyist peeled away the Dairy Alliance’s support for the bill.

WMC Senior Vice President of Government Relations Scott Manley testified that the business organization, whose members include farmers, cheese processors and related businesses, considered the bill “both an important step forward for the dairy industry, and a reasonable compromise between agricultural employers and local governments” — with the exception of that one-word change.

Using “or” instead of “and,” Manley told lawmakers “allows local governments to effectively zone-out larger dairy farms like Concentrated Animal Feeding Operations (CAFOs), leaving them no practical place to locate.” The existing law, he argued, requires local governments to meet both conditions.

“Simply preferring to zone-out CAFOs or prevent them from expanding is not enough under current law — local governments must use credible science to prove an actual public health concern that justifies excluding larger farms from their community,” Manley argued in his testimony.

Leitner told the Wisconsin Examiner that the WMC testimony, along with pushback from Dairy Alliance members, led the organization to renounce its support.

“We did agree to the bill,” she acknowledged. “We did agree to it. But as we learned more in the week after we agreed to this bill and talked to more farmers … we realized we were wrong.”

Towns association reacts

Koles of the Wisconsin Towns Association emphatically disagrees with the WMC analysis about the meaning of the original language. 

In its original context, “the intent of the law was not to conjoin” the two conditions, he said in a telephone interview Monday. Changing the word linking the two from “and” to “or” in the new bill was intended to make clear what he said was the legislation’s original intent.

Different levels of agriculture zoning, he said, would allow communities to take into account the surrounding area. 

“Around a subdivision, around a lake, around really high-end real estate, around a sensitive environmental area, you might want farming but not as high in intensity,” Koles said. “So you could zone for medium or small agriculture. The idea about intensities is to separate incompatible uses.”

The condition referring to needing scientific evidence for prohibiting a facility was always meant to be a separate option, he continued: “In an agricultural zone, to say you can’t have a large farm here [when] normally you would be able to, but we have found a reason [against it]. That reason has to be based on science.”

Koles also took issue with assertions from critics of the bill who said that that local governments would have surrendered their control over large livestock siting.

“Absolutely not,” he said. “In fact, that clarity that would have been provided would have given more safe options for local government.”

The bills’ authors — Marklein, along with State Rep. Travis Tranel (R-Cuba City) and State Rep. Gary Tauchen (R-Bonduel) — were “dedicated…to preserving local control,” Koles added, and  rejected a last-minute attempt from the Dairy Alliance and WMC to delete the controversial word change from the bill. (The Wisconsin Examiner sought comment from Tranel and Marklein, but did not hear from them by late Monday evening.)

What’s next?

With the bill’s death, “and” remains in the existing law. Koles said some communities may shy away from trying to implement separate agriculture zoning categories based on intensity, because they will fear they’ll have to prove the need based on scientific evidence rather than the standard zoning principle of neighborhood compatibility.

As a result, he warned that some might take what he called “the nuclear option” — ending all agricultural zoning within their boundaries. “There is a significant anti-large-livestock influence that is developing in the state of Wisconsin,” Koles said, “and those groups that are anti-large-livestock operation, I presume, will be the ones that put pressure on communities to use that nuclear option.”

Leitner of the Dairy Alliance disagreed. “I don’t believe towns would use what they call the nuclear option to zone out all the ag,” she said. “That’s their economic income.”

She expects the issue to return. “I think we just needed to go back and work on this some more,” Leitner said. “It just wasn’t ready yet.”

Agreed Koles: “I can’t imagine this will not be a topic the next legislative session.”