MADISON — Members of the Wisconsin Department of Agriculture, Trade and Consumer Protection board had the opportunity to preview proposed changes to ATCP 51, the livestock siting rule, on Oct. 21, almost three weeks before they are slated to vote on the changes at their regularly scheduled meeting. Board members also received official documentation of the final draft rule later that week, containing over 100 pages for them to review before voting on the rule in early November.

Chris Clayton, DATCP program manager of livestock facility siting, and Lacey Cochart, director of DATCP’s Bureau of Land and Water Resources, spoke to the board via teleconference, as requested by the board at their September meeting. They provided a spreadsheet that outlined the changes incorporated into the final draft rule, walking board members through about 10 changes made after receiving a large volume of public comment on the issue.

Sparking the most concern from the board were changes made regarding local implementation, specifically a $1,000 cap proposed in the hearing draft rule for local fees and a $500 cap for permit modifications, along with a restriction for local governments to require financial assurance in case of a manure spill or in the case the operation closes and clean up of the facility needs to be completed at the local level.

In the final draft rule, it was determined that DATCP has no legal authority to place a cap on local fees and permit modifications, nor does it have legal authority to restrict whether or not a municipality can require financial assurance. Jane Landretti, DATCP chief legal counsel, provided further clarification — in the previous version of the rule, DATCP did not have to comply with Act 21, created in 2011 and requires the department to review their rules and make sure they have explicit statutory authority to enact aspects of rules.

“In a previous version of this rule, we didn’t have that directive,” Landretti said. “That’s the reason we switched course on that.”

She added that local governments will instead have the authority to set up their own fees and/or requirement of financial assurance, but several board members were unsure about the revision.

“When there’s no cap and when the language is fairly vague, I can see local units of government trying to create a cost so high that it would discourage anybody from even thinking of adding on,” said Greg Zwald, board member and berry farmer near River Falls. “I worry about the wide open, top end of this no cap. Those words scared me when I saw this originally.”

Other changes highlighted by Clayton and Cochart in the final draft rule relate to setbacks and odor management standards. The odor score remains eliminated from the final draft rule, but setbacks were adjusted based on feedback collected from the public hearings. For manure storage and high odor housing at expanded livestock facilities, setbacks were reduced from the proposed 600 to 2,500 feet to 350 to 1,450 feet. For new livestock facilities, the maximum property line setbacks applied are 1,450 feet for Category 1 livestock housing and manure storage (6,000 or more animal units) and 1,050 feet for Category 2 livestock housing.

“The reductions to setbacks were in response to a lot of comments we received around the limitations and challenges for expansion on farms that are located on 40-acre parcels, which is sort of the typical way that most facilities began many years ago,” said Clayton.

There will still be opportunity for operators to reduce those setbacks through the implantation of odor control practices, as outlined in the final draft rule. However, added into the final rule is language that allows operators to demonstrate common ownership or control of adjacent parcels to meet property line setbacks from manure storage and high odor housing.

After hearing from agriculture engineers at the public hearings, changes were also reflected in the final draft rule in regards to runoff management standards and waste storage facilities standards.

In the final draft rule, runoff controls are required at new or substantially altered feed storage structures that store or handle feed with 40% or more moisture, excluding low moisture feed, while a provision that states new and substantially altered feed storage structures that are one acre in size and located in areas at low risk for significant discharge into waters of the state are exempt from having to meet the latest vegetated treatment area standard remain unchanged from the hearing draft rule.

The final draft rule also clarifies that waste storage facilities are to be emptied to the “extent possible” for inspection and if emptying or entering an under-barn pit or slurry store is problematic or unsafe, alternative methods can be used to check that the pit is not significantly leaking.

Other changes that made it into the final draft rule include an expanded definition of “livestock structures” to include buildings used to incinerate or compost dead livestock; that construction of the runoff control be completed within 1 year instead of 6 months as indicated in the hearing draft rule; and that permit modifications be submitted either for new or altered livestock structures, or when the facility plans for a one-time addition of 20% or more animal units, but no more than 800 animal units (changed from 1,000 animal units in the hearing draft rule).

Clayton and Cochart indicated that they have been in contact with most of the state’s agricultural organizations and have shared the final draft rule changes with them.

“I think it’s fair to say we made a lot of changes throughout — only a very few things stayed as they were,” Cochart said. “The setbacks were obviously the largest one where everything was reduced from hearing draft.”

“I don’t think we made everyone perfectly happy but I’m cautiously optimistic about the number of supportive comments I’ve heard of late,” she continued. “We’ve certainly been trying really hard; Chris and I and many others have spent a lot of time working on this, listening to the comments, going back to the public comments and we’re certainly happy to explain in more detail to other groups.”

Cochart and Clayton will officially present the final draft rule to the DATCP board on Nov. 7. If the final draft rule is approved by the board, it will move to the Wisconsin Legislature in early 2020.

The final draft rule is available for public reading on the DATCP website ahead of the board’s November meeting.