Here & Now

Noon Wednesday: Bill to Change Livestock Standards

Marisa Wojcik:

Welcome to Noon Wednesday, I’m Marisa Wojcik, Multimedia Journalist with Here & Now on PBS Wisconsin. So a bill abruptly heading through the state legislature would change how standards for livestock facilities are written and applied to farms. Joining me are Kara O’Connor from the Wisconsin Farmers Union, and Debi Towns from the Wisconsin Farm Bureau Federation, and your group is in opposition to this bill, your group approves of this bill, so we’re going to talk a little bit about this. Thank you so much for being here.

Kara O’Connor, Debi Towns:

Thank you.

Marisa Wojcik:

So rules from the Department of Agriculture Trade and Consumer Protection or DATCP set the standards, and local governments decide whether or not to adopt them. There’s not a limit on how many animals a farm can have, but they do have to meet these standards for air quality, water quality, manure storage, setbacks. This bill would change who writes these rules and administers these permits. So who is writing these standards now? The bill is setting forth a technical review board. Five of those positions would be by farmers. Your organization is in favor of this bill. Are you in favor of having the majority of these positions on this board be held by farmers?

Debi Towns:

We’re in favor of having a technical advisory board be a cooperative effort between folks who use, who have to use the law, who are in production agriculture, local governments, conservation folks. All of those people need to be at the table, and not so that all of their points of view get heard and that hasn’t always happened with the way that it’s currently set up.

Marisa Wojcik:

And the way it’s currently set up is a technical review committee has been working for the last three years to revise some of these standards. What would make it different from the review board that is being proposed in the legislation?

Debi Towns:

Well the technical review board that currently has been working on it did not have any production, livestock production and agriculture people on it. And so that point of view, or those opinions, were not ever included in the beginning of the drafting of the new rules.

Marisa Wojcik:

Kara O’Connor, the Wisconsin Farmers Union is opposed to the legislation. Do you have an issue with the number of positions held by farmers on this review board?

Kara O’Connor:

It’s not so much the composition of the review board that we’re concerned with but more so the added layer of bureaucracy that that review board adds. Right now there’s a technical advisory committee that simply makes recommendations for rule changes. This bill would create not only a recommendation, but also a requirement that that committee vote by a two-thirds majority to advance those recommendations. The concern is that that will unnecessarily tie up some really needed and necessary changes that we need to make to those rules. That additional vote is a layer of bureaucracy that doesn’t solve any problem that currently exists. Right now, I estimate that I’ve spent hundreds of hours, and my colleagues at Farm Bureau and other ag organizations as well providing input on livestock siting rules. We have that opportunity through the public review and comment process. There’s no need to add this additional layer of bureaucracy.

Marisa Wojcik:

So both boards would exist simultaneously, is that correct?

Kara O’Connor:

No, one would replace the other.

Marisa Wojcik:

One would replace the other, okay.

Kara O’Connor:

But the vote is what changes. Making that additional barrier to advancing the rules.

Marisa Wojcik:

Okay. And currently, once the technical committee makes their recommendations, it’s the board of the Department of Ag that votes, and so would both of those boards still exist?

Debi Towns:

Oh yes.

Kara O’Connor:

Under the bill you’d have to have two votes to advance changes. Currently, you just need the one vote, and that’s the DATCP board. And I should mention that there are a number of active farmers on that DATCP board.

Marisa Wojcik:

So would adding this livestock facility technical review board under this bill, would that eliminate public comment from the process? As it exists now, there’s extensive public comment period.

Debi Towns:

Public comment period is still built in, that part didn’t change at all in the law. There would still be opportunity for the public to, have hearings for the public to voice their opinions.

Marisa Wojcik:

So this bill would also change livestock siting permits, and how they’re administered? So right now the state sets these standards with this process that we just discussed, and then local governments choose to adopt those standards and review applications, administer permits. So this bill would take the local government’s responsibilities and give it to DATCP. Kara, wouldn’t it make sense to have the state agency who is setting those standards be the one to administer the permits, and to put it all into one central place?

Kara O’Connor:

One of the outcomes of shifting that responsibility for permit review from counties and towns to DATCP is that we will have work that’s currently being done by 24 people in counties statewide with local knowledge, local connections, and placing that on to the desk of one, or half of a bureaucratic position in Madison with DATCP with no additional funding, and no additional position authority at DATCP. That strikes us as an unreasonable, untenable situation. There’s a real advantage to the permit review being done by people who understand the community and understand the local conditions. Have the ability to go out and do a site review, and have the local knowledge about what the community’s needs are in potentially sensitive issues. There are certainly advantages of shifting that job to DATCP like you mentioned, some continuity. There’s an advantage if it influences more communities to adopt livestock siting, which we think would be a positive step, and some are deterred by the burden of doing the permit review, but it’s unreasonable to think that that permit review will be done well. If we take the job that more than 24 people are doing now and expect one person to do it well.

Marisa Wojcik:

So under this legislation, it’s taking the work of these local governments and putting them into DATCP and no additional resources are being allocated under this legislation. Debi, does that concern you, as that work is being funneled to an agency that doesn’t have the resources to support it?

Debi Towns:

First of all, I would say that the Towns and Counties Association had almost the opposite argument when they came to us and said that they no longer wanted to be responsible for reviewing applications and doing the permitting, because they did not have the personnel, nor did they have the expertise, and they felt the state made the law, the rule, the regulation, and they would prefer that the state did the application review and permitting. And so, that was what they brought to the table. We tried to get all the stakeholders together who had input and rewriting this, and so that’s why that was in there, at the request of the Towns and Counties Association. And I understand, I think we all think that DATCP could use some more help, and I don’t think anyone has an argument with that. The author chose not to put an appropriation in the bill. I think there will be opportunity as we come into a budget cycle for that to be part of DATCP’s budget request, and I think that’s how they chose to approach that.

Kara O’Connor:

Unfortunately that job will shift to DATCP two days after the bill is passed, so the responsibility comes regardless of whether there is funding for it. I do want to say, I really empathize with the concerns the towns and counties have of doing this significant job without the funding, and I think that that’s one of their real concerns. One of the options that wasn’t thoroughly explored in this bill was the need to have permitted operations bear more of the cost of doing business and cover some more of that expensive, time-consuming job themselves. Right now we have a cap of $1,000 for these permits that are issued by towns and counties. That’s woefully inadequate for what towns and counties are spending, sometimes upwards of $40,000. This bill, unfortunately, perpetuates that $1000 cap, and also caps what DATCP could charge. The other option that we have is doing something similar to what a lot of other states have done, which is to realize this is a costly process to do well, and ask the entity asking for the permit to shoulder some of that burden for the benefit that they’re getting.

Marisa Wojcik:

That’s interesting, because I reported on the public hearings and heard from a lot of farmers that additional fees and costs and regulations is what’s causing them to have to get bigger for purposes of economies of scale. So, because these things are happening, fees are going up, and regulations are making it more costly for them. That in turn is increasing the number of large livestock facilities, and so it’s becoming, as we know, the numbers are growing in this state.

Kara O’Connor:

Could I respond?

Marisa Wojcik:

Is that a real burden for farmers?

Kara O’Connor:

The number one thing that affects the profitability of a farm is the cost that they’re receiving for milk, for a dairy farm. Or the cost that they’re receiving for chicken, or pork, or beef for another kind of livestock farm. We cannot get around the damage that low prices cause to farms. And permit fees are on the orders of thousands. For a farm of this size the change in the price of milk is on the order of hundreds of thousands. So I simply can’t agree with the thing that’s driving what’s going on in agriculture being permit fees and costs. They’re an inch, when the price of commodities is a mile.

Debi Towns:

I would say that you’re correct, that commodity prices are probably the biggest influence in profitability in dairy farming especially, but also in livestock, meat producing. I would say, however, that, expenses, the expense side of it, and it’s probably, I don’t know that $1000 is the right number, or $5000 is the right number. I think when someone is planning an expansion, or planning a new facility, what they need to know is surety, and the problem that has happened with local governments is that they just have this open-ended, where they just keep charging you, charging you. They never give you the permit, but they just keep charging you for more research and more, and at some point it gets to be 30, 35, 40, $50,000, and you still don’t have your permit. And so I think what producers are looking for is they’re looking for surety, they’re looking for predictability. When you go to the bank and you want to borrow hundreds of thousands, millions of dollars to build a set up they want to know what your planned expenses are. And that has to do, your fees are certainly a part of that. A $40,000 fee would be significant when you’re writing your financial plan and if you don’t know that it’s going to be that much or it’s just open-ended, there’s no surety there, there’s no predictability. So that’s one of the things that Ag groups brought to the table is that they wanted some predictability in the fee structure. And the other thing that they wanted predictability in was the timeframe to get a permit, and we’ve all heard stories about permitting applications going on and on and on and never getting approved, and at some point your lender says, I guess you’re not getting it. And you cannot have an industry grow that doesn’t have financial support behind it from the lenders. And when you don’t have predictability and surety, that’s exactly what’s happening.

Marisa Wojcik:

And so you think bringing this to a state agency would provide more predictability and stability?

Debi Towns:

I’m not saying that. The reason it’s going to the state agency was at the request of towns and counties. Because part of the reason they can’t get it done in a reasonable time, or they just had these open-ended expenses, is because they’re out looking to hire people. They don’t have the personnel or the expertise to do this, and the state made the rule, and they want the state to do the permitting.

Kara O’Connor:

Counties and towns also have concerns about open-ended costs, and one of the ways where that comes in is in whether an operation, large livestock operation, is going to be held responsible for covering the cost of a clean-up in the event that there’s a catastrophic spill or in the event that that operation goes bankrupt. Unfortunately, one of the things that this bill does is adopt a prohibition on bonding. The idea behind bonding is that the entity that causes the problem is the entity that should pay for the cleanup, and DATCP has signaled that its current prohibition on bonding is not legally defensible, and is moving away from that. Unfortunately, the legislature through this bill would be picking up on that prohibition exactly at the time when DATCP is moving away from it. We feel like it’s just basic responsibility for any business entity. We do it as a regular matter, of course, for mines, for construction, for roads. Bonding is a standard practice, and it’s a standard practice for large livestock operations in other states. We should be doing that in Wisconsin as well. There’s no reason that everyone else should be shouldering that burden. It’s about responsibility.

Marisa Wojcik:

I want to touch on, since we are talking about state, versus towns and counties and local control, and I’ve read in some areas that this is providing, it’s still providing too much local control for local people to say we don’t want this facility here, but others are saying this is taking away local control. Is it too much or not enough?

Kara O’Connor:

I think this bill doesn’t so much take away local control as much as it lays bare how little local control towns and counties have right now, as a function of the 2004 livestock siting law. At that time, the responsibility and the control shifted away from what had been true, which was that this was a local zoning and property use issue squarely within the purview of what has always been the control of towns and counties and put the responsibility in the hands of the state in deciding things as minute as what kind of setbacks can a town and county require from a manure storage pit. Those are set not by local governments, but by the state, and this bill goes maybe a little bit further, instituting by statute a setback, which again is traditionally and historically always the role of towns and counties, but most of those are set already by the state. And unfortunately one of the things that has been a barrier to the rulemaking process is an unwillingness to acknowledge that we need greater setbacks, and I think there’s a real feeling among local governments and towns and counties that they need more flexibility in being able to respond to local conditions. But a lot of opposition from–

Debi Towns:

I would say that towns and counties never brought that forward in the discussion. The setbacks are in the rule that has been passed and been enforced for the last 15 years was passed by the legislature and approved, and nothing in that has changed other than, the hundred foot setback. They reduced the setback to the right of way from the roads and that was at the request of the Towns Association. And so towns in this, I think the hope is that more towns and counties will adopt livestock siting because of this. Their big request was that they kept all their zoning authority, and none of that was touched. Local governments have just as much zoning authority as they ever did.

Kara O’Connor:

Well, pre-, since 2004. But before 2004, they had more zoning authority.

Debi Towns:

Well, but that was 15 years ago. So I mean, this law has been enforced for 15 years, and it’s worked fairly well. When the people who, the stakeholders who got together to talk about some of the tweaks that they thought would make it run smoother, the local governments brought forth that they no longer wanted to approve permits, but they wanted to retain all their zoning authority, so that’s preserved in this bill, and the producers, representative organizations who represent the producers that came forward, they wanted, again, predictability, surety as far as cost and timeline in permitting. And so those are basically the only three things this bill really addresses.

Marisa Wojcik:

I did read that the authority that the local governments would have, they wouldn’t have the information that they would need in order to, if they did have an issue with a permit that had been approved by DATCP under this bill, they wouldn’t have the actual information that they would need if they’re already at a bit of a deficit in terms of being able to enforce these things. In order to do what is needed to make sure that the facility is operating under the law.

Debi Towns:

You mean, the background papers for the DATCP used to approve?

Marisa Wojcik:

Correct.

Debi Towns:

It is in the bill that DATCP needs to inform the local government on every step, and that’s in the timeline thing. So there is to be a communication between the local government and DATCP.

Kara O’Connor:

I think that’s true. I think the bigger issue goes to, what authority does the town and county have in the first place? And when the state is telling you, your setbacks can only be this big, then that’s a real loss in the flexibility that a town and county has to protect neighbors, to protect roads, to protect other schools, things that might be affected. So there’s… A concern about baseline, how little control towns and counties have, even when they adopt livestock siting. I think it would be great as a result of this bill more towns and counties did adopt it, but we still have to contend with the setbacks being inadequate in some cases to protect neighbors from fumes. For example, members of ours who are farmers that live across the street from a large livestock operation had to leave their house when the Tuls Dairy across the street from them agitated their manure pit, they were getting sick. That’s a loss of the value of their property, and we know that in Kewaunee County, in Green County, the property values have been decreased because of proximity to a CAFO. Again, if we want people to be able to operate in the state, what we’re asking is for people to take responsibility. One of the unfortunate conversations that happened during the ATCP51 rules, the setbacks and things like that, was the argument by Farm Bureau, Dairy Business Association, Wisconsin Dairy Alliance, and others that farms, livestock facilities, should be able to acquire or appropriate their neighbor’s land in order to satisfy their own setbacks. That the setback should be calculated from the neighbor’s house rather than the neighbor’s property line. Is that the neighbor’s responsibility, to supply the neighboring livestock operation with land to satisfy their setback? Our contention is no.

Marisa Wojcik:

And setbacks were a big issue when the rules that were set forth by this expert technical committee last fall, and put into review and had public comment on them, this board spent three years working on these rules. And now, they were never voted on. Now we have this bill going through the legislature very very rapidly, supposed to hit the Senate floor tomorrow. Senator Marklein, who was an author on the bill, has said he expects it to pass the full legislature. Whether or not it gets signed by Governor Evers is another question. But is it the right move to have this bill go through the legislature so quickly when it’s been debated, these standards have been debated, and we haven’t changed them for, like you said, 15 years?

Debi Towns:

I would say to back up a little bit about ATCP51, and the process when it was being heard. It was eventually withdrawn, and not ever presented to the board, the DATCP board. There was very little if any input from production agriculture in that. The setbacks that they had in there were very unreasonable, and they were not willing to change them, and for example, in some cases, you couldn’t have sited a farm on a 40 acre farm because the setbacks were so deep. And so, I think it was withdrawn because it was unreasonable and because they knew it, and so when that happened, it wasn’t that folks in agriculture didn’t think there weren’t some changes that could be made to make it work better, they just were never included in the process at all. And so after three weeks after that went down we got together and talked about it, and talked about some of the things, and who else were stakeholders and in that case it was the local governments that had been involved in that also, and so we got together and tried to see what individual stakeholders thought would make the rule better, or the law better. And of course, we aren’t in the rulemaking business, and so our approach was to talk to a legislator.

Marisa Wojcik:

Do you think it’s going too fast?

Debi Towns:

I think it was vetted extremely deeply all last year, and through all of that process, so it’s not like it just came up. When that went down I think it was September, that was withdrawn, never followed through. And so in the fall, some of us started meeting and talking and we called in other stakeholders to see what their views were on it, and then we approached legislators in both the Assembly and the Senate.

Marisa Wojcik:

But this bill was introduced last week. It’s had not a lot of time for public comment, and we’re reaching the end of the session.

Kara O’Connor:

The bill was introduced on the 10th. It’s slated to pass the legislature on the 20th. 10 days is not a process designed to elicit meaningful, thoughtful public input.

Marisa Wojcik:

And so are you potentially in favor of this bill if some changes are made, and we just wait until the next session?

Kara O’Connor:

There are portions of the bill that we are definitely in support of. Clarifying, for example, what options towns and counties have in exercising their zoning authority that’s a really beneficial portion of this bill. We also think it’s worthwhile or acceptable as this bill specifies for a livestock operation to contract with their neighbor to negotiate a smaller setback than the rule requires. And the example that lots of people give is, what if that neighboring property is a cornfield, that’s always going to be a cornfield, and the neighbor doesn’t mind if the manure pit is closer to the property line? We think that’s great. People should have the opportunity to negotiate that between neighbors. So those are a couple of things in the bill that we support and think are worthwhile, but there are big concerns. As we talked about, adding additional layer of bureaucracy to get some of these really needed rules changed. Preventing financial responsibility, which is deeply problematic, and unfortunately, limiting, putting a lot of extra burden on DATCP without giving them resources to do a good job.

Marisa Wojcik:

Would your group be okay with waiting on passage of the bill to have more time to discuss differences in opinion on some of the specific provisions in the bill?

Debi Towns:

There was a very lengthy hearing on it, when the public, many ag organizations, including Farmers Union and many people from the public came and spoke, and legislators listened to that, and took that into account before they voted on it. So I don’t know, you know, I don’t know if another month makes a difference. If you have to have six months to talk about it. It is, basically the bill is a few tweaks to an existing law that has been enforced for 15 years, has worked fairly well. We thought there were some things that we could do to make it smoother for local governments and for producers, ag producers. If the bill doesn’t pass, or doesn’t get signed by the governor, doesn’t become law, we’ll continue with the current law as it is, which has been working. I guess we all think that there are some things you could do to make it work smoother, and make a better relationship between local governments and ag producers.

Kara O’Connor:

I think we are, Farm Bureau, Farmers Union, lots of other ag groups are united in the goal of seeing vibrant farms, thriving rural communities. We have a real question before us at this moment with such a stark landscape in rural Wisconsin about how best to get there. And, one of, we are, I think, not going to get to where we want to go without doing some fundamental changes to what prices farmers receive, and that’s a key thing that I hope we’ll all collaborate on. And I also think it’s important to note that we get different outcomes depending on which future we choose for rural America.

Marisa Wojcik:

Alright, well Kara O’Connor, Wisconsin Farmers Union, Debi Towns, Wisconsin Farm Bureau Federation, thank you so much for being here and for having this conversation.

Kara O’Connor, Debi Towns:

Thank you.

Marisa Wojcik:

For more from Here & Now and PBS Wisconsin, you can visit PBSWisconsin.org, and thank you so much for joining us on Noon Wednesday.