Livestock siting rule revisions will not go through

Jan Shepel
The livestock siting rules revision package – a polarizing topic in the farm community – will be dropped as time runs out on the process that must be followed in the rulemaking process at the Department of Agriculture, Trade and Consumer Protection.

MADISON – The livestock siting rules revision package – a polarizing topic in the farm community – will be dropped as time runs out on the process that must be followed in the rulemaking process at the Department of Agriculture, Trade and Consumer Protection.

Prior to his ouster from DATCP on Nov. 5 by virtue of a Senate vote, Secretary-designee Brad Pfaff had pulled consideration of a final livestock siting rule from the agenda of the department’s policy board, which had a regularly scheduled meeting on Nov. 7.  

When the board met, Pfaff was out and Randy Romanski, the agency’s deputy secretary, had been named as interim secretary of DATCP. There were still several people who asked to address the board on the subject of livestock siting, even though it was clear the board would have no ability to act on the final draft rule that had been prepared by staff.

Kara O’Connor, with Wisconsin Farmers Union, still asked that the board bring the revised rule to a vote. “We couldn’t have asked for any more from DATCP staff and I ask that you honor that work and the democratic process,” she said, during the board’s public comment period, which is part of each meeting.

Kara O'Connor

“The current odor score is difficult to enforce and is not protecting the quality of life for nearby residents,” she said. “There are real problems that need to be addressed, including incineration of dead stock on which the current rule is silent.”

In response to public comments, O’Connor noted, the DATCP staff working on the rule had reduced setback requirements. “But the problem won’t get easier if we kick the can down the road.” She commented that these rules are “not designed to handle larger and larger farms” but had been written for the past.

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“If you let these rules die in this way,” O’Connor added, “what am I supposed to tell people the next time there’s a public hearing?”

Draft rules had been approved for public hearings when the board met in July and 12 hearings were well-attended throughout the state after that. There were 160 people who spoke at the hearings and the agency got 460 written comments on the rule.

The rule, which is intended as a model ordinance for municipalities that want to have control over new or expanding livestock farms over a certain size, became controversial over issues of setbacks and odor scoring, among others.

Several state groups and officials had filed letters, asking that DATCP not hold public hearings.

Two people who addressed board members at their meeting were just as happy that the rules appeared not to be moving ahead. Cindy Leitner, president of the Wisconsin Dairy Alliance commented that “we need all sizes of dairy farms” and that the state needs viable siting rules that will allow dairy farms to grow.

The agency, Leitner said, should go back and put stakeholders together to come up with something that is more workable for state farmers. “I encourage you to send it back and maybe that means rejecting it.”

Joe Ruth, an attorney for the Wisconsin Towns Association in Shawano, commented that “even though the rule isn’t in front of you today, I encourage you to bring this back before the scope statement expires.”

The scope statement is the first step in any state rulemaking process and must be approved before any sort of rule can be drafted or sent out for public hearings. Scope statements have a limited lifespan – meaning that they can expire if the rulemaking process takes too long.

One of the key points at hearings on this proposed rule regarded fees that are charged to farmers by local municipalities under the siting rule. Many testified that the licensing fee cap of $1,000 is not sufficient to cover the cost incurred by local governments as they review siting applications. Ruth also commented that his reading of the law doesn’t give DATCP the authority to cap those fees.

“What we’re really asking is that taxpayers aren’t subsidizing these applications,” he said.

When the board took up the livestock siting as a “discussion” topic, they heard from Sarah Walling, the administrator of DATCP’s Division of Agricultural Resource Management, the division that is in charge of the siting rule revision, and from interim secretary Romanski.

Randy Romanski

Romanski said that the law was passed in 2006 with rulemaking authority given to DATCP. What he called the “long, arduous” process has “been made even longer in recent years,” he said, noting that the rule hadn’t been before the public for years. He praised the board’s decision to allow hearings to “let people know what the rule is and what the rule isn’t.”

Walling said since the public hadn’t had the chance to weigh in on the rule in many years, the administration decided it would be good to give it a public forum.  She said she was very proud of the work done by her staff, who had to try to balance public health and safety with practicality as well as viability for farms.

The comments on both sides of the rule process gave her staff “a lot to work with,” Walling said, especially in nuances to the rule in areas like engineering and setbacks that could prevent some smaller farms from expanding.

She commended groups, especially the Dairy Business Association, for stepping forward to work closely with her staff on certain aspects of the rule and “improved our relationship with that organization.” Several engineers from outside the agency offered their expertise to help the agency make improvements to the rule.

However, she said that in some areas they couldn’t “arrive at enough middle ground.”

Even if the rule revision ends right now, the work of the staff and the communications with outside groups means that their efforts were “not for naught,” Walling told the board. Angela James, who worked with Walling’s staff on the rule, said that the hearing process also fleshed out where the agency has authority and where it doesn’t. “These are complicated statutes and even without moving the rule forward, we learned a lot,” she said.

Walling told the board that the hearing process gave her staff the ability to look at this rule with fresh eyes and that review of siting is an “ongoing charge” at DATCP. Still after the hearing process, she indicated that those who weighed in on the rule are still far apart.

Asked by several board members what the next steps could be for the rule, Walling explained that under the existing scope statement, the rule must be brought to the Legislature by Feb. 4, 2020 and that “an extraordinary amount of administrative work would need to be done” by that date. Before the rule could go to the Legislature, it would also need to go to the governor’s office for approval.

The scope statement under which the department held public hearings and worked on this rule expires on Feb. 4. If that deadline couldn’t be met and the agency decided to continue forward with rule revisions, it would need to start all over with a new scope statement, Walling explained.

Sara Walling

“We have to walk a pretty narrow path,” Walling said. “We can’t do anything without a scope statement.”

Work on the rule has taken two full-time workers’ time since July, she said.

Some board members commented that the rule had clearly become a more political issue than it should have.

Romanski praised the work of DATCP staff. “They really did a good job of finding common ground where they could. We learned a lot from reviewing this rule, which is our ongoing charge,” he said.

Board member Patty Edelberg said she felt that the agency needed to “consider livestock siting one way or another. The entire ag industry has been watching this,” she added.

Board chair Miranda Leis commented that the public hadn’t had the chance to weigh in on this for “a very long time” and that there would be “a path forward at some point. We’re not where we need to be to move the rule forward.”

After the board discussion Romanski told reporters that the “department has no plans to moved forward (with the siting rule) at this time.

“There’s still a lot that needs to be done to reach compromise,” he added, noting that the board’s action to allow the public to weigh in on livestock siting was a good one. “It’s not all for nothing. We learned a lot. We have a better understanding of the authorities we have and these were all really important discussions to have.

“Now is not the time to move forward with the rule but that doesn’t mean that we do nothing on this rule,” Romanski added.