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Counties face limits to livestock oversight

A look toward Emerald Sky Dairy from the edge of the Enerson's property. Chad and Mary Enerson put plans for a new home on hold after learning of the dairy's plans and subsequent manure spill. John R. Russett / RiverTown Multimedia

Editor’s note: This is the third in a series of stories exploring local and state issues related to dairy farms.

By John R. Russett and Maureen McMullen

In recent years, Wisconsin lawmakers have eased regulation on the largest animal feeding operations in the state. Recently proposed changes to the state's administrative rule regarding livestock facility siting, however, could prove a step toward restoring some local regulatory autonomy over all feeding operations.

In his May 23 presentation before the St. Croix County Ground and Surface Water Study Group, County Corporate Counsel Attorney Scott Cox outlined current possible avenues for local municipalities to regulate livestock operations.

More than a decade old, Wisconsin livestock siting legislation established framework for how local governments may issue permits for livestock operations with more than 500 animal units, he explained.

RELATED: Groundwater concerns floated as Wisconsin reduces well regulationsEmerald Sky Dairy's manure spill gives neighbors pause

Wisconsin siting laws allow counties to regulate siting standards that fall under five categories: structure location, odor and air emissions, nutrient management, waste storage facilities and runoff management.

Local governments may create more stringent laws than state laws, but only after proving they are necessary to protect public safety.

"Unless you can do that," Cox said, "unless you have scientifically-based findings that clearly demonstrate that, but for this more stringent requirement, public health or safety will not be protected, it's a very difficult standard."

In order for counties to adopt ordinances that exceed state performance standards for livestock facilities, they must receive Wisconsin Department of Natural Resources and Department of Agriculture, Trade and Consumer Protection approval that the regulations are necessary to achieve state water quality standards.

Emerald Sky Dairy

This situation isn't unique to Wisconsin — or to one of St. Croix County's newest dairy farmers, Todd Tuls.

In 2014, Nebraska Law Review published the 2013 decision of the Nebraska Supreme Court to uphold local authority in the case of Butler County Dairy, L.L.C v. Butler County.

Shortly after Tuls' Butler County Dairy was approved for a 6,000-cow dairy operation by the Nebraska Department of Environmental Quality in 2007, Read Township denied Butler County Dairy a permit based on township ordinances passed the previous week.

The ordinances prohibited Tuls from installing on township property pipelines carrying liquid livestock manure and enacted minimum setback requirements for large livestock facilities.

In February 2009, after Butler County Board of Supervisors chose to uphold Read Township's authority, Butler County Dairy sued both the township and the county, challenging their authority to impose more restrictive measures than the state.

In similar cases tried previously in Iowa and North Carolina, state laws were found to preempt those of the local governments.

At the time the court's decision was published, Tuls owned more than 20 percent of Nebraska's milking herd, according to Nebraska Law Review, with 12,000 of the state's 58,000 dairy cows between his two dairies.

Owner of Butler County Dairy, Tuls also owns Double Dutch Dairy in eastern Nebraska along with Rock Prairie Dairy and Pinnacle Dairy — whose application for 5,800 cows recently received county approval — in southern Wisconsin.

Purchased last year, the latest addition to Tuls' dairy herd is Emerald Sky Dairy in St. Croix County, the site of a manure spill that remains under investigation by the WDNR.

Reasons to deny

Wisconsin local governments face limited instances in which they can deny livestock facility applications.

Counties may, however, deny applications for a number of reasons, including:

• Violations of shoreland, floodplain, erosion control or stormwater management ordinances

• Violations of building and electrical codes

• Violations of state standards

• The operation is proposed for an area outside of an agricultural district or appropriate zone

The 2015 Wisconsin Act 391, signed into law by Gov. Scott Walker in April 2016, addresses some of these very issues, in part restricting local authority over the siting and regulation of large agricultural operations.

Broader oversight

Recent proposals at the state level could, however, start to combat some of that legislation, with the intent to broaden oversight at the local level.

The changes, in part, would allow counties to regulate operations with fewer than 500 animals and implement stronger setback requirements to increase distance between manure storage and neighboring properties.

Amendments proposed would affect administrative rule ATCP 51, which sets livestock facility siting standards.

At the June 15 Community Development Committee meeting, Ellen Denzer, St. Croix County Community Development director, described the potential outcome as mostly positive, although some proposed amendments could make more work for county staff.

"Either way, the state allowing us to make that change is a positive thing," Denzer said of potential expanded local siting authority over smaller operations.

Public comment period for the amendments closed June 26.

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