By Ruder Ware Alumni
June 13, 2006
Livestock operations are poised to expand now that Wis. Admin. Code ATCP 51 will take effect after a long and highly visible rule-making process. Livestock operators have faced contentious and expensive local zoning and judicial review proceedings with unpredictable results that varied from locality to locality. Rep. David Ward, R-Jefferson, whose own family farm encountered opposition to expansion, introduced the bill that has led to the new rules.
On April 13, 2004, Governor Doyle signed 2003 Wisconsin Act 235, which is codified at Wisconsin Statute 93.90. The statute directs the Department of Agriculture, Trade and Consumer Protection (“DATCP”) to promulgate rules specifying standards for siting and expanding livestock operations taking into account the following factors:
Protective of public health or safety;
Practical and workable;
Based upon peer-reviewed science;
Designed to promote the growth and viability of Wisconsin animal agriculture;
Designed to balance the economic viability of farm operations with protecting natural resources and other community interests; and
Usable by officials of political subdivisions.
DATCP commissioned both an advisory committee, chaired by former DATCP secretary, Gary Rohde, and a technical committee to develop the draft rules, which first appeared in January 2005. Stakeholders (livestock operators and associations, cooperatives, lenders, environmental and public interest groups, and municipalities) participated in record numbers at public hearings held across the state in March 2005. DATCP incorporated changes to the January draft as a result of comments received at the public hearings and in written submittals.
In September 2005, the DATCP board approved the revised draft and sent it back to the Assembly and Senate agriculture committees, where the rules package met with stiff opposition. Both committees directed DATCP to modify the proposed rules so as to be more favorable to the livestock industry. DATCP did so and the DATCP board approved the additional revised rules package on February 8, 2006, and returned them once again to the legislature, which approved the rules on February 23. The new rules take effect for all but “small businesses” on May 1, 2006. “Small business” means a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000. The effective date for small businesses in July 1, 2006.
1. Who Is Covered ATCP 51 applies to traditional livestock operations: dairy and beef cattle, swine, poultry, sheep, and goats. The rules do not apply to horses, bison, llama, ostrich, emu, deer, or mink farms.  In order for ATCP 51 to apply, a new or expanded livestock facility must have 500 or more “animal units.”  A lower animal unit threshold applies only where such figure was properly adopted under a local zoning code prior to July 19, 2003. 
Animal units are counted based upon the maximum number of animals that may be kept on 90 or more consecutive days during any 12-month period.  Manure from the various species is equalized into “animal units.” For example, manure from a 400-800# heifer equates to 0.6 animal units (“a.u.”), whereas that of a dairy cow equates to 1.4 a.u.
Under ATCP 51 the calculation of animal units is the sum of the different species and types of animals under WDNR rules (NR 243) that require WPDES permitting for concentrated animal feeding operations (“CAFOs”). For example, a livestock operation that houses 300 heifers and 600 dairy cows would have 1,020 a.u. (300 x 0.6 + 600 x 1.4 = 1,020). ATCP 51 adopts the WDNR’s calculational method, which is more inclusive than that employed by the EPA, which does not add animal units for different species or types. Under the EPA “CAFO Rule,” the above example would yield fewer than 1,000 a.u. (and therefore a WPDES permit would not be required) because the heifers and the dairy cows would not be added.
ATCP 51 adopts the WDNR’s more stringent counting method as that method existed on the day the livestock siting bill was published, April 27, 2004. The rule recognizes that the WDNR calculational method is subject to change as NR 243 is currently under revision in light of the EPA’s more recent CAFO Rule. DATCP is likely to adopt any calculational change that the WDNR might make.
2. The Reach of ATCP 51 An important limitation on the reach of ATCP 51 is that it applies only in those counties and townships that regulate livestock operations through their zoning codes. Conversely, where agricultural land is not regulated by county or township ordinance, ATCP 51 simply does not apply. A prominent example is that of Clark County, which is said to be Wisconsin’s largest dairy producing county. Clark County does not, at this time, regulate livestock siting.
Accordingly, ATCP 51 would be inapplicable to Clark County. Said another way, ATCP 51 does not require Clark County to adopt a zoning ordinance so as to regulate livestock siting. 
ATCP 51 preempts, however, local zoning ordinances that regulate livestock siting or expansion. For those jurisdictions, ATCP 51 now imposes livestock siting and expansion standards that apply on a statewide basis so as to supersede conflicting local ordinances, subject to an exception.
3. The Significance of ATCP 51 A livestock operation that seeks to be sited or to expand under ATCP 51 does so by completing a standardized application form and accompanying worksheets. If the application form and worksheets are truthfully, fully, and accurately completed and show that the proposed siting or expansion will meet the standards set forth in ATCP 51, then ATCP 51 requires local approval. Approval at the local level is subject, however, to shore land or wetland zoning, flood plain zoning, well construction codes, site erosion control, and post-construction storm water management, as well as state building, electrical, and plumbing codes. 
Local approval is transferable; it “runs with the land.” So long as an operator merely begins siting or expansion within two years of having received local approval, he or she may proceed according to his or her own timetable. Neither a gradually implemented installation or expansion nor a less than fully approved implementation operates to waive or reduce the scope of the local approval. An operator must merely begin populating the approved facility or constructing or expanding it within two years of approval. 
Local approval triggers strong “right to farm” protection against encroaching development. A new or expanding livestock operation must calculate an “odor score” based upon odor control practices and the proximity and density of “affected neighbors” at the time of application. A subsequent application for an additional expansion under ATCP 51 would be premised not upon the proximity and density of “affected neighbors” at the time of a subsequent application, but rather by reference to those affected neighbors as mapped in the original application.  Those neighbors who “come to the nuisance” during the interval between the original and subsequent applications will be ignored for purposes of calculating the “odor score.”
While municipalities that grant local approvals must retain their records for merely a period of seven years, an operator may record the approval, including the maps of affected neighbors and “odor score” calculations, with the Register of Deeds. There is no limit to the passage of time or changes in ownership between the original and any subsequent approvals. 
4. To What Size Operations Does ATCP 51 Apply The threshold for application of ATCP 51 to new or expanded livestock facilities is 500 animal units unless, as noted above, a lower threshold was properly adopted by the local municipality prior to July 19, 2003. 
“Livestock facilities” are those feedlots, dairy farms, or other operations at which livestock are fed, confined, maintained, or stabled for a total of 45 days during any 12-month period.  “Related livestock facilities” are treated as a single “livestock facility” where they are owned or operated by the same person and are related in at least one of the following ways:
Located on the same or adjacent tax parcels;
Use in common at least one manure collection or storage structure; or
At least a portion of their manure is applied to the same tax parcel. 
“New livestock facilities” are those that will be used as livestock facilities for the first time or for the first time in 5 years. 
“Expanded livestock facilities” are those entire livestock facilities created by an “expansion” of the largest number of animal units kept at a livestock facility on at least 90 days in any 12-month period. Merely acquiring an additional existing facility does not constitute an “expansion.” Rather, the operator must increase the number of animal units kept at the combined livestock facilities during the requisite 90?day period in order for ATCP 51 to apply. 
5. Existing Livestock Facilities Are “Grandfathered” Livestock facilities that either exist or were locally approved prior to the effective date of ATCP 51 do not fall under this rule.  ATCP 51 allows for some degree of expansion of existing facilities without requiring local approval. An existing facility may expand without local approval to the maximum number previously approved or, if no specific maximum number was previously approved, then a number that is 20% higher than the number actually kept on the later of the effective date of ATCP 51 or the effective date of the approval requirement.  This liberalization feature that applies to preexisting or pre-approved facilities allows expansion to exceed 500 a.u. without having to obtain local approval.
For example, a preexisting or pre-approved livestock facility may house 600 a.u., which is 100 a.u. higher than the ATCP 51 threshold. If no maximum number was stated in a preexisting approval, the livestock operator could expand to as much as 720 a.u. without triggering the requirement for local approval under ATCP 51. For additional “grandfathering,” see Section 7 titled Setbacks.
6. Statewide Standards in Local Approvals Within six months of the effective date of ATCP 51, political subdivisions may not deny an application submitted under that chapter unless the political subdivision has adopted an ordinance that incorporates the ATCP 51 standards. 
Political subdivisions might be able to adopt more stringent standards than those contained in ATCP 51, but only if:
Other applicable law authorizes such an ordinance;
Adoption occurs before any given owner or operator files a completed application and worksheets pursuant to ATCP 51; and
More stringent standards are needed to protect public health or safety based upon reasonable and scientifically defensible findings of fact. 
Political subdivisions must file copies of their ordinances (whether modeled on the ATCP 51 standards or on more stringent standards) with DATCP. Political subdivisions may adopt the ATCP 51 standards by incorporation by reference into their zoning codes.
7. Setbacks Political subdivisions may establish setbacks that are subject to maximum distances:
If the facility will have < 1,000 a.u., then the maximum setback for livestock structure is 100 feet from any property line or public road right-of-way (except as related to manure storage structures); If it will have 3 1,000 a.u., then a maximum setback of 200 feet from any property line or 150 feet from any public road right-of-way (except as related to manure storage structures); Preexisting facilities are grandfathered and may be expanded so long as expansion is away from a property line or public road right-of-way to which the expansion applies; The statewide maximum setback for manure storage structure is 350 feet unless their locations comply with previously established lesser setbacks adopted specifically with respect to manure storage structures or they existed prior to the effective date of ATCP 51; Previously existing waste storage structures that lie within the 350 feet state maximum setback may be expanded in the absence of approval under ATCP 51 away from the relevant property line or public road right-of-way; and A single new waste storage structure may be installed in the absence of ATCP 51 local approval where it will be no closer to the relevant property line or public road than an existing waste storage structure on the same tax parcel so long as the new structure will be no larger than the existing structure and located within 50 feet of the existing structure.  8. Odor and Air Emissions Applicants must complete worksheets that arrive at an "odor score," which is a prediction of odor generation. DATCP intends that odor scores are to be used exclusively for livestock siting and expansion purposes, but not for other purposes, such as evidence of the existence of a nuisance under common law.  There are three significant exceptions, however, from the odor scoring exercise. New facilities with fewer than 500 a.u., expanded facilities with fewer than 1,000 a.u., and any facility at which all of its livestock structures are located at least 2,500 feet from the nearest "affected neighbor are not required to submit the odor score worksheet as part of their applications."  If a livestock facility is separated by at least 750 feet between or among clusters of livestock structures, the applicant has the option of scoring the operation as a single unit or as two or more individual units.  Well studied odor control practices are listed on worksheet 2. Applicants may apply to DATCP for pre-approval of innovative odor control technology or practices based upon documented scientific substantiation of efficacy. Applicants must use worksheets that are supplied by DATCP and available at http://www.datcp.state.wi.us/index. The logic of the worksheet is an odor prediction for the type of housing, manure management practices, and type of waste storage structures as modified by technologies or management practices to control odor. In addition, a separation score is calculated based upon the proximity and density of the nearest "affected neighbor." Neighbors may agree voluntarily not to be counted as an "affected neighbor." The separation score is subtracted from the initial odor score to arrive at a total odor score.  Political subdivisions must approve complete applications that yield a total score of 500. They must deny applications with scores that are under 470. They have discretion to grant or deny those with scores that range from 470 to 500. While political subdivisions are required to make a record of their reasons, the exercise of their discretion is not reviewable.  9. Nutrient Management Nutrient management plans in accordance with NRCS 590 (September 2005) are required where: The new or expanded facility will have 500 a.u., or The facility will have fewer than 500 a.u., but falls below a certain threshold of crop acreage to animal units. For example, a new dairy facility that will house 400 a.u. would be required to comply with NRCS 590 (September 2005) if the ratio of its crop land to its animal units is less than 1.5. Ratios for the various livestock species are set forth in Table 1 for worksheet 3. NRCS 590 (September 2005) departs significantly from previous revisions because it includes management for phosphorus. Phosphorus is expected to be the limiting factor so as to require the availability of additional acreage for land spreading as compared to the acreage required under previous editions of NRCS 590. A qualified nutrient management planner, other than the operator of the livestock facility, must answer each question on the nutrient management checklist (Part C of worksheet 3) and must supply and explain the calculations that support those answers if requested to do so by the local governing municipality. Updated nutrient management plans need not be supplied to the local governing municipality, but the operator must maintain compliance with any applicable nutrient management plan. A separate nutrient management plan need not be created if the operator possesses a WPDES permit in effect for an equal or greater number of animal units for which livestock siting approval is sought.  10. Waste Storage Facilities A registered professional engineer or certified agricultural engineering practitioner must certify the structural integrity of all existing waste storage facilities. Certification must be made as to one of the following conditions: Concrete and/or steel construction within the last 10 years according to then existing NRCS standards and absence of apparent signs of structural failure or significant leakage; Construction within the last 3 years according to then existing NRCS standards and absence of apparent signs of structural failure or significant leakage; Construction in accordance with then applicable NRCS standards and in good condition and repair without apparent signs of structural failure or significant leakage; The facility is in good condition and repair, shows no apparent signs of structural failure or significant leakage, and is located on a site at which soils and separation distances to groundwater comply with NRCS technical guide manure storage facility standard 313, table 1 (November 2004); and The facility is in good condition and repair, shows no apparent signs of structure failure or significant leakage, is located entirely above ground, and is located on a site at which soils comply with NRCS technical guide manure storage facility standard 313, table 5 (November 2004).  New or substantially altered facilities are presumed to possess structural integrity if all of the following apply: The application for local approval includes design specifications; A registered professional engineer or certified agricultural engineering practitioner certifies that the design specifications comply with all of the following: - NRCS technical guide manure storage facility standard 313 (November 2004), and - NRCS technical guide manure transfer standard 634 (November 2004).  A livestock operation seeking approval under ATCP 51 that intends to close any waste storage facility must submit a closure plan that comports with NRCS technical guide closure of waste impoundments standard 360 (June 2001).  Most storage capacity must be "adequate for reasonably foreseeable storage needs based on the operator's waste and nutrient management strategy." Additionally, a storage margin of safety must be maintained ("free board") which is the greater of one foot multiplied by the top area of the storage facility or the volume of rain that would accumulate in the manure storage facility from a 25-year 24-hour storm.  Local approval of a livestock facility does not authorize an operator to populate that approved facility if the construction, alteration, or closure deviates materially and without express authorization from the design specifications or closure plan that are included in the application.  Those operations holding WPDES permits for the same facility based upon a number of animal units equal to or greater than the number for which the operator seeks approval need merely supply a copy of the WPDES permit in support of the structural integrity of waste management structures. 11. Runoff Management New or substantially altered animal lots must comply with NRCS technical guide waste water treatment strip standard 635 (January 2002).  Existing animal lots must utilize a specified computer model ("BARNY") to predict the average annual phosphorus runoff from each existing animal lot. If no part of the animal lot lies within either 1,000 feet of a navigable lake or 300 feet of a navigable stream, up to 15 pounds of phosphorus may be discharged. If any portion of an animal lot lies within either 1,000 feet of a navigable lake or 300 feet of a navigable stream, however, only 5 pounds of phosphorus may be discharged. Discharge of runoff from an animal lot to any direct conduit to groundwater is prohibited.  Where an existing paved feed storage area is used to store or handle feed with a 70% or higher moisture content, surface water runoff must be diverted from entering the paved area, and leachate from the paved feed area must be collected if the paved area covers more than one acre. The collected leachate may be land spread, and in any event must not be discharged to the waters of the state.  New or substantially altered feed storage areas that store or handle feed with a 70% or higher moisture content must also divert incoming surface water runoff, collect, and properly dispose of leachate (regardless of the acreage of the paved area). In addition, new or substantially altered feed storage areas must have floors at least three vertical feet above groundwater and bedrock. If feed storage areas cover more than 10,000 square feet, they are required to contain effective subsurface systems to collect leachate that might leak through the floor. The system must consist of drain fill material, a tile drainage network, and an effective sub-liner as specified in worksheet 5, Section II.C.  Surface runoff must be diverted from contact with animal lots, waste storage facilities, paved feed storage areas, and manure piles located within 100 feet of a navigable lake or 300 feet of a navigable stream.  New or substantially altered livestock facilities must be designed, constructed, and maintained to prevent overflow.  Unconfined manure piles may not be stored within 1,000 feet of a navigable lake or 300 feet of a navigable stream.  Livestock may not have unrestricted access to surface waters unless by so doing vegetative cover on the adjoining banks can be maintained.  Operators may install properly designed and maintained livestock or machinery crossings. Worksheet 5, the runoff management worksheet, must be signed both by the applicant and a registered professional engineer or certified agricultural engineering practitioner. Operators are prohibited from populating approved livestock facilities if the construction material deviates from the design specifications, unless expressly authorized by the political subdivision.  An applicant who possesses a WPDES permit based on housing a number of animal units equal to or greater than the number for which the operator seeks local approval may provide a copy of that permit to satisfy this section. 12. Application and Approval Process An applicant must submit an application, which appears in Appendix A to the rules along with the attached worksheets as required.  Governing political subdivisions are prohibited from altering the application form or requiring information not requested by the form except to the extent needed to determine compliance with local ordinance standards adopted under ATCP 51. Political subdivisions may require the applicant to submit up to four complete duplicate copies of the original application. Political subdivisions may charge an application fee established by ordinance not to exceed $1,000 for cost of review and processing. Political subdivisions are prohibited from requiring the applicant to pay any other fee or post any bond or security except for the above-referenced administrative fee.  Political subdivisions have 45 days from receipt of applications in which to notify applicants if the applications are complete. In the case of incomplete applications, political subdivisions must specify what additional information is needed. Thereafter upon receipt of the completed applications, political subdivisions have 14 days in which to notify applicants that the applications are complete. Notifications of completeness do not constitute approvals. Political subdivisions must, within 14 days of having issued notices of completeness, mail copies of the notices to adjacent landowners. Failure on the part of the political subdivisions to comply with the notice requirement, however, neither invalidates an approval or creates a cause of action by property owners who were not so notified.  Political subdivisions have 90 days from issuance of the notice of completeness to either grant or deny the application.  The time may be extended for good cause.  Political subdivisions are required to approve the applications where they are complete and contain credible information to show, in the absence of clear and convincing information to the contrary, that the proposed livestock facility meets or is exempt from the standards put forth in subchapter II of ATCP 51.  Political subdivisions may deny applications where the application is not supported by credible information or where the political subdivision finds that the proposed livestock facility fails to comply with an applicable standard under subchapter II based upon other clear and convincing information in the record.  Political subdivisions are required to issue their decisions based upon written findings of fact included in their decisions. The findings of fact must be supported by evidence in the record. Findings may be based upon presumptions created in favor of the applicant throughout the chapter.  A duplicate copy of the approval must be marked "approved" and provided, along with all of the accompanying worksheets, maps, and other attachments (with the exception of engineering design specifications) to the applicant. As noted above, the applicant may wish to record the approval with the Register of Deeds and convey the approval to any subsequent purchaser. Political subdivisions possess regulatory powers, including monitoring compliance and withdrawing approval (or seeking other redress provided by law) where the applicant materially represented relevant information in the application, failed to honor relevant commitments made in the application process, or failed to apply with the applicable standards under subchapter II of ATCP 51.  Political subdivisions must notify DATCP within 30 days of granting, denying, or withdrawing an approval. All of the worksheets, maps, and other attachments (except for engineering design specifications) must accompany the copy of the application.  As noted above, political subdivisions must maintain their records for at least 7 years. Records encompass the application and all documentation accompanying it, copies of all notices or correspondence, and a record of any public hearing related to the application. Evidentiary material must be maintained as well as minutes of any board or committee meeting held to consider or act on the application. Of course, the written decision, itself, must be maintained as well.  13. Review of Local Decisions Wisconsin Statute 93.90(5) establishes the procedure by which an "aggrieved person" may challenge the granting or denial of a permit under that statute. An "aggrieved person" is a person who applied for the permit or a person who resides or owns property within two miles of the proposed facility. Local decisions are reviewed by the livestock siting facility review board ("Board"), the members of which are to be appointed by DATCP so as to provide broad representation of Wisconsin's agricultural municipal and environmental communities. Requests for review must be made within 30 days of the local approval or disapproval. The person seeking review need not exhaust any other administrative relief that might be available. The Board reviews the local decisions strictly upon the facts as set forth in the written record without deference to the political subdivision. The only issue is whether the political subdivision correctly applied the state wide standards to the facts as set forth in the application. If so, the application must be granted.  The Board must make its decision within 60 days of receipt of the record. Circuit courts are authorized by Wis. Stat. 93.90(5)(e) to review Board decisions. Such judicial reviews are strictly limited to a review of the facts contained in the written record.  14. Checks and Balances Political subdivisions retain some degree of control over new or expanded livestock operations. They are authorized to monitor compliance by the operation.  If the political subdivision determines that material misrepresentations were made in the application or that relevant commitments in the application have not been kept, it may withdraw its approval or seek other available redress.  Moreover, Wis. Stat. 93.90(2)(c) and (d) obligates DATCP to review ATCP 51 at least once every four years with the assistance of a standing technical committee for that purpose. As the WDNR conducts odor management and air emissions studies at livestock facilities pursuant to a recently received major grant, DATCP will modify ATCP 51 as appropriate based upon the research findings.  Conclusion Livestock operations have deferred new construction and expansion plans during the legislative and rule-making process. That process has been highly visible and participatory. Demand for new construction and expansion has been pent up during that time. We expect to see a surge of new construction and expansion of existing facilities in light of the predictability afforded by Wis. Stat. 93.90 and ATCP 51. If you have questions regarding the above, please contact Russ Wilson, the author of this article, or any of the attorneys in the Business Transactions Practice Group of Ruder Ware.  Wis. Stat. 93.90(2).  ATCP 51.01(18).  ATCP 51.02(1)(a).  ATCP 51.02(1)(b).  ATCP 51.04.  ATCP 51.02.  ATCP 51.02(2); ATCP 51.12(3)-(5).  ATCP 51.08(2).  Id.  ATCP 51.14(6).  Id.  ATCP 51.02(1)(b).  ATCP 51.01(19).  ATCP 51.01(36).  ATCP 51.01(26).  ATCP 51.01(13) & (14).  ATCP 51.06(a) and (b).  ATCP 51.06(2).  ATCP 51.10(2).  ATCP 51.10(3).  ATCP 51.12(2).  ATCP 51.14(1) - Note  ATCP 51.14(2).  ATCP 51.14(3).  Worksheet 1.  ATCP 51.14(4).  ATCP 51.16.  ATCP 51.18(2).  ATCP 51.18(3).  ATCP 51.18(4).  ATCP 51.18(5).  ATCP 51.18(6).  ATCP 51.20(1).  ATCP 51.20(2).  ATCP 51.20(3).  Id.  ATCP 51.20(4).  ATCP 51.20(5).  ATCP 51.20(6).  ATCP 51.20(7).  ATCP 51.20(9).  ATCP 51.30(1).  ATCP 51.30(4).  ATCP 51.30(6).  ATCP 51.32(1).  ATCP 51.30(2).  ATCP 51.34(1).  ATCP 51.34(2).  ATCP 51.34(3).  ATCP 51.34(4).  ATCP 51.34(5).  ATCP 51.36.  Wis. Stat. 93.90(5)(b).  Wis. Stat. 93.90(5)(f).  ATCP 51.34(4)(a).  ATCP 51.34(4)(b).  ATCP 51.14(1) - Note
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