Polk County's proposed conditional use permit fails to meet state's legal requirements

Dear Environmental Services Committee and Polk County Supervisors:

On behalf of the Wisconsin Dairy Alliance (WDA), including its members that farm in Polk County, this is to provide comments on the above-captioned proposed “CAFO Provisions” amending the County’s Comprehensive Land Use Ordinances.

WDA is a state trade association that represents modern, regulated dairy farms throughout Wisconsin, including our members that farm in Polk County. Formed with the purpose of uniting dairy farmers, processors, environmental experts and affiliated industries to establish scientifically sound, sustainably focused solutions to issues confronting the viability of the dairy industry in America’s Dairyland, we work diligently to preserve Wisconsin’s heritage as the Dairy State.

WDA supports Polk County’s efforts to engage in the reasonable regulation of livestock operations, provided it is conducted in conformance with state law. The State has adopted a preemptive and comprehensive law concerning livestock regulation which has been upheld by the Wisconsin Supreme Court. See, Adams v. State of Wisconsin Livestock Facilities Siting Review Board, 2012 WI 85.

As such, wherever the proposed revisions of the ordinance exceeds the state’s uniform livestock siting standards contained in § 93.90, Wis. Stats. or § ATCP 50, Wis. Admin. Code, the revisions are illegal and unenforceable unless the County (i) bases that more stringent regulation or prohibition on “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” and (ii) obtains approval of the ordinance following review by the Wisconsin Department of Agriculture, Trade & Consumer Protection (DATCP) or the Wisconsin Department of Natural Resources (WDNR). We do not believe the County has undertaken these two necessary prerequisites to allow it to enforce more stringent livestock regulation as part of its land use ordinances.

By way of example, the following list are but a few of the items in the proposed revisions that exceed current state livestock regulations:

• The requirement to have CUP applicants provide “air quality testing/studies”;

• The requirement that the applicant’s owner or operator live within five miles of the farm;

• The requirement that the applicant disclose any previous “livestock facility violations”;

• The requirement to provide a 24-hour contact number for the DNR;

• The requirement that the farm entrance be at least 100 feet from a nonfarm residential driveway;

• The requirement of spill notification to local officials;

• The requirement to have a mortality management plan.

Although many of the above may be argued to be good ideas or practices, they are unenforceable as CUP conditions under existing law. Rather, a farmer may choose to voluntarily implement some of these procedures via its farm management plan, and many have. The point is the County cannot legally compel them without – for each and every requirement that exceeds state livestock standards – taking the necessary predicate steps noted above.

Lastly, in the context of livestock facility CUP applications reviewed by the Environmental Services Committee, despite how the ordinance may apply more generally to land uses in the County, in the context of livestock operation CUP applications, the Committee must restrict its review and conditioning to compliance with those applicable statewide livestock standards (See, Adams, infra) unless the County has similarly followed the processes for the adoption and enforcement of more stringent or additional standards or criteria applicable to livestock facilities.

Thank you for considering our comments and we urge the County to comply with state law.

Sincerely,

Cindy Leitner – President

Wisconsin Dairy Alliance