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Polk Co. backs down on CAFO moratorium after threat of legal action

Grace Connatser Laura Schulte
Wisconsin State Farmer
Like other livestock, pigs produce a cocktail of odorous gases and organic compounds, though in often higher concentrations.

When members of the Polk County Board of Supervisors decided to take up measures regulating large-scale hog farms and extending a moratorium on them, it didn't take long for the part-time elected officials to hear from industry big guns. 

One day before the board was set to vote on the measures, representatives from the Venture Dairy Cooperative, Wisconsin Dairy Alliance and the Wisconsin Manufacturers & Commerce sent supervisors a letter warning the supervisors they could be committing a felony if they moved forward with regulating concentrated animal feeding operations. 

The letter called an extension of the moratorium unlawful and urged the board not to pass an ordinance that regulated only swine CAFOs, which is against state regulations, the organizations argued. 

If the ordinance passed and the moratorium was extended, the letter said, the supervisors would be overstepping their abilities and creating unenforceable and unlawful regulations, in excess of the board's authority to act, which can be charged as a felony in Wisconsin. 

"When you were sworn in to serve, you took an oath to uphold the laws of the State of Wisconsin and the Wisconsin Constitution," the letter says. "We ask that you honor that oath, and reject these proposals that are clearly at odds with state law." 

The board ended up turning down the moratorium but did pass the ordinance on Sept. 15. 

All began with an application

It all began with an application in 2019 to permit a farm in nearby Burnett County by Cumberland LLC and Iowa-based Suidae Health and Production, a veterinary clinic that consults on production. The company applied for a water quality protection permit, according to the Wisconsin Department of Natural Resources website, which ensures the proper handling and storage of manure from large-scale livestock operations.

when Wisconsin's Polk County is being threatened with litigation over recent ordinances passed that strictly regulate local swine concentrated animal feeding operations.

The proposed farm would cost more than $20 million and would house more than 26,000 hogs, according to a report from Wisconsin Public Radio. 

CAFOs are a growing section of the Wisconsin agriculture, housing thousands of animals on one farm. But the large-scale operations have also drawn criticism over their odors and the potential impact of manure polluting groundwater and streams.

At this point, only a preliminary application has been submitted to the DNR, and no approvals have been granted. 

Venture Dairy Cooperative, Wisconsin Dairy Alliance and Wisconsin Manufacturers & Commerce co-signed a letter addressed to The Polk County Board of Supervisors received a letter on Sept. 14 from the trio of industry groups claiming the two ordinances, Resolutions 36-20 and 37-20, unlawfully single out hog farmers for increased environmental regulations. The three organizations instead ask for the ordinances to be rescinded or amended with the guidance of local farmers.

"Farmers comprise a vital and necessary part of Wisconsin’s economy, including in Polk County. The County’s unlawful actions will harm local farmers and likely lead to costly and reputation-damaging litigation, for which your taxpayers (the very farmers you are harming) will have to foot the bill," the letter read.

Resolution 36-20 proposes to extend a moratorium on livestock facilities in Polk County. The moratorium was first enacted in October 2019 because "residents and property owners have expressed concerns about the importance of preserving the quality of life, environment, natural resources and existing agricultural operations." The letter says this moratorium has been illegal from the beginning because Wisconsin livestock siting law does not permit counties to create moratoriums on livestock facilities.

The moratorium does not affect existing swine operations – it only delays permit approvals for future ones or for expansions. Venture Dairy Cooperative executive director Kim Bremmer said the county board representatives are interested in banning CAFOs altogether, and the legislation is just a facet of that agenda.

Polk County board member Doug Route said the letter from the industry groups came across as intimidating and that as a retired postal carrier he worried that if he was actually charged with a felony, he could lose the pension he receives from the U.S. Postal Service. 

"It really makes you worry," he said. "I don't know why they'd send a letter that was so offensive. It's very troubling." 

Route and his fellow supervisors are part-time officials who make $6,000 per year, in addition to $100 per each board meeting and committee meeting they attend, according to the Polk County website. 

Assault on agriculture

"It's really become increasingly evident over the past year that this really is not about protecting communities from a hog farm, or really protecting communities from anything," Bremmer said. "It really became this assault on agriculture from this loud, vocal minority of activists who have this agenda. ... This is people who just want to ban CAFOs."

Bremmer said CAFOs and other agricultural operations are already strictly regulated under state law and these extra restrictions are unnecessary. She accused the county board of ignoring evidence about good air and water quality with Wisconsin ag operations and said they have no evidence of their own to support their position. She also accused the board members of committing felonies by being in excess of "authority to enact."

Resolution 37-20, the bulk of the letter's concern, amends the county's existing Concentrated Land Use Ordinance to include a conditional use clause for swine CAFOs under the stipulation that they comply with several restrictions, including a required nutrient management plan, distance from roads and property lines, approval on moving large loads and waste storage siting regulations. 

Tim Jackson, a livestock facility siting expert at the Department of Agriculture, Trade and Consumer Protection, wrote a letter to Polk County board members Jason Kjeseth and Malia Malone stating that the proposed Resolution 37-20 is subject to legal action because it is unlawful based on Wisconsin statutes and ATCP 51, which is the state's law regarding livestock facility siting.

Jackson wrote that the ordinance cannot disapprove CAFO permits based on species. He said the ordinance also does not fully incorporate all regulations and standards from ATCP 51 because they either fail to cite them directly or reference them. Jackson also pointed out that the ordinance must "base those standards on reasonable and scientifically defensible findings of fact adopted by the county’s governing authority," which means the county board did not provide sufficient scientific evidence to support their regulations.

"Polk County’s proposed swine CAFO ordinance is not consistent with Chapter 93.90 Wis. Stats. and ATCP 51. If the county adopts the ordinance as is, it may present the grounds for a legal challenge," Jackson wrote. "The department can provide further direction and assistance in drafting regulations that are consistent with the livestock facility siting law if the county requests it."

Signs proclaim sentiments for and against a proposed livestock facility in Burnett County that would house 26,000 swine and easily be largest hog farm in Wisconsin. Because the facility is proposed for an agricultural field, the state's right-to-farm law would provide it expansive protections against nuisance claims even though it could fundamentally alter the lives of neighbors.

Bremmer also said the board worked with Midwest Environmental Advocates, a law firm that focuses on conservation in Wisconsin, to draft the ordinance. While MEA denies this claim, MEA attorney Adam Voskuil said their organization supports the Polk County board members in passing the ordinance to protect Wisconsin's land and waters from under-regulated farming operations.

"These are people that were elected to represent the community, and they were doing something that they believed would be protective," Voskuil said. "We recognize that CAFOs are regulated, but the potential environmental harms and fallout that then moves to residents and neighbors around the CAFOs or downstream ... is also much higher for those when it is a CAFO that is producing millions of gallons of manure."

MEA also issued a letter written by Voskuil to the Polk County board on Sept. 15 that reiterated their support for the proposed ordinances and responded to some of the claims made by the Sept. 14 letter. The letter said many Wisconsin counties have "identified the need to regulate CAFOs" and claimed the county board was not violating state law. It also responded to allegations of criminal liability against the board members, calling it outrageous bullying.

"The legality of a local ordinance is not decided by a criminal trial," the letter read. "The fact is the authors of the September 14 letter to Chairman Nelson do not and cannot point to any precedent for a local official being charged in a similar situation because their mention of criminal statutes is a hollow gesture meant to intimidate you."

WMC's general legal counsel Cory Fish agreed with Bremmer that the ag industry is already one of the most strictly regulated industries in the state, and many members of the industry are conservationists themselves who meet environmental and public health standards. Fish said that he believes this is a good opportunity for education on the issue and is hoping to work with the board to make a better ordinance, but he also said options for litigation are being left open if a compromise can't be reached.

"We're working with the media, grassroots agriculture stakeholders and with our coalition to put out as much information (as we can) on what governments can and cannot do and what recourse the agriculture community has when their local government oversteps their authority to regulate," Fish said.

Fish said the letter was simply meant to inform the board members that extending the moratorium — or passing a restrictive ordinance — is outside of the board's jurisdiction. He said that any decision made by the board must be based on science and show that additional standards are necessary to protect peoples' health and safety. 

"We want a decision that is lawful and a solution that is both conducive to the end goal they want and what's realistic for their farmers," Fish said.

Route said he did not know whether the letter affected the board's ultimate votes but said residents of Polk County are concerned about having a large swine operation near their homes.

Misrepresents authority

Voskuil said the Sept. 14 letter misrepresents the authority granted to Polk County under Wisconsin state law and emphasized the need to protect natural resources. He also said CAFOs are not regulated enough under state law because the regulations are inadequately protecting land and waterways, so he is calling for increased regulations, especially for large-scale farming operations that produce large amounts of manure.

Bremmer said the county board should have consulted the state's livestock siting review board instead of proposing Resolutions 36-20 and 37-20 if they had concerns about swine CAFOs in Polk County. She also said that if this kind of ordinance went unchallenged, it could lead to other ordinances restricting different kinds of CAFOs or other ag operations. She said she believed it was time to challenge this process.

"It doesn't matter if you have pigs, or cows, or chickens, or turkeys," Bremmer said. "This is about protecting future businesses in Wisconsin if they choose to grow."

CAFO rules 'far from settled'

Andy Phillips, an attorney with von Briesen & Roper and the general counsel for the Wisconsin Counties Association, said he didn't think that the board members could be charged with a felony, but ultimately that decision would be up to a local district attorney.

He said for it to be a felony, it would have to be clear that the board members knew they were exceeding their authority, but the regulations around CAFOs are confusing and still being litigated in some cases. 

"It's far from settled," he said of the rules surrounding siting the large farms. 

Lisa Doerr is one of many concerned residents who have been protesting any sort of large factory farm in Polk County. She and her husband run a commercial hay farm in Laketown, about a mile from one of the places that the company has proposed a farm. She's said she's worried about the dangers a CAFO could pose to clean air and water in the county, as well as property values dropping if a large farm is able to move into the area.

"They're talking about changing the entire agriculture economy of our county," she said. "We're a county of small farms." 

She's worried that allowing one CAFO to set up in Polk or nearby Burnett County will open the doors to several of the factories, which could run her out of business.

"There wouldn't be a market for the forage we produce," she said. 

Since she found out about the interest in locating a large-scale animal operation near her home, she's been working with her local and state representatives.

"We're just doing a lot of work trying to get our local politicians to realize what a threat this is to our way of life," she said. 

Laura Schulte reports for the Milwaukee Journal Sentinel