The economics of modern agriculture are pushing farmers across Wisconsin to get bigger or die, yet the state’s rules guiding where large farms can be located haven’t been updated in more than 15 years and the board responsible for hearing appeals of those decisions has had a number of vacant seats for years.
This status quo has frustrated people on all sides of the debate surrounding the future of farming in Wisconsin. Conservation groups feel like the rules are too lenient to massive farms that can have harmful effects on the local environment. The massive farms think the rules are regulating a type of agriculture that doesn’t exist any longer. And local governments don’t feel like they have enough control over what is built within their own borders.
“You don’t have the tools in the tool kit, either as a dairy industry or a local government, to accomplish what can be mutually beneficial goals of growing your ag economy while also protecting the citizens from potential negative externalities that can occur if a farm is not managed appropriately,” Mike Koles, executive director of the Wisconsin Towns Association, says. “The only reason we have laws in the first place is to prevent bad actors from doing bad things. The current law does not allow us to maximize those things. We can’t create the greatest economic benefit and we can’t protect them from negative externalities from bad actors. A vast majority of farms are great actors, but laws should be in place to protect, and we don’t have all the tools in the tool kit to achieve either of those goals.”
Aging livestock rules
Wisconsin’s livestock siting rules were established in 2006. The agricultural industry wanted a uniform, statewide set of rules guiding where large livestock operations can be placed, rather than the previous patchwork of local zoning rules that varied greatly from place to place.
Now, municipal or county governments that want to have some regulations guiding livestock siting must implement the statewide rules, which are maintained by the Department of Agriculture, Trade and Consumer Protection (DATCP). The DATCP rules regulate the location a livestock facility can be built, the odor and air emissions of the facility and the waste management capabilities. These rules apply if a new farm is being opened or an existing farm wants to expand above 500 animal units.
There are 25 counties and 107 cities, villages, or towns that have adopted livestock siting ordinances under the statewide rules, according to DATCP.
The law also established the Livestock Facility Siting Review Board, a body of seven appointed members who hear appeals of local livestock siting decisions. The board’s membership is supposed to consist of three at-large members; one representative each nominated by the Wisconsin Towns Association and, the Wisconsin Counties Association; a representative of the state’s livestock interests and one from the state’s environmental groups. The board’s nominees are selected from names provided to DATCP by the interest groups before being confirmed by the state Senate.
If a local government that has passed a local ordinance decides not to grant a farm a license or allow construction under the zoning code, that decision can be appealed by the farmer. If the license is granted by the local government, the decision can be appealed by a neighbor as long as they live within two miles of the proposed site.
When they were written, the siting rules were supposed to be reassessed every five years to update them to the state’s modern needs and make sure they were still accomplishing their goal.
Instead, the state has gone 16 years without an update. The review board, which has not heard an appeal since 2019, has two seats sitting vacant — an at-large seat and the environmental seat — and the remaining five members are serving as holdovers on expired terms.
In late 2019, representatives of towns, counties and farm groups negotiated a proposal to update the rules. Environmental groups were opposed, but the measure cratered following the loss of support from one of the state’s largest dairy organizations.
“This was new, the farming industry was changing and in a very dynamic world, locking something in without adequate reviews of whether or not it’s achieving its goals is not in the best interests of the dairy industry, local governments or citizens of Wisconsin,” Koles says. “The law did not envision the size of the agriculture industry and the size of the farms. That law was constructed envisioning 1,500, a couple thousand, animal units. Now we have farms pushing 10,000 animal units. That makes looking at the law that much more important.”
“We have tried to have the law reviewed, we thought we had a win-win situation a few years back,” he continues. “Unfortunately for a couple of groups that didn’t think it was the adequate solution, they killed it. Now we find ourselves in a more precarious situation than we were before. You have some major farm groups and local government groups that were supportive and it didn’t make it to the finish line. Now the negotiating positions have changed. I’m not sure you’d have as broad support as you had before. Do we need to take a look at it? Absolutely. The environment has changed but the law has not changed.”
Koles says in addition to the rules’ age, the combination of the state statutes and administrative rules created along the way have muddied the water and created a large amount of gray area surrounding the regulation of large farms in Wisconsin. In fact, in 2019, a DATCP review of its own administrative rules — known as an Act 108 review — lists its livestock siting rules as being in conflict with the statute itself.
“It makes it difficult for communities because you have a rule that at times is not within the legal bounds of the statutes,” Koles says. “There’s a fee associated with the local permitting process. Right now the administrative rule caps that fee, however that fee is not allowed to be capped per the statutes, so we have a gray area. The rule says there’s a cap, the statutes say there is not a cap and that means the local government is in a bit of a predicament, do they follow the rule, do they follow the statute? If I’m a farm, I don’t know which one the county, city is going to follow.”
For environmental groups, the establishment of the statewide rules in 2006 helped ignite the move toward larger and larger farms all over the state. As larger economic forces were pushing dairy farms to expand, the removal of local control over the ordinances gave the green light, they say. In the years since, the number of massive farms known as concentrated animal feeding operations (CAFOs) has exploded in Wisconsin.
“There was quite a sales job from DATCP to the counties getting us to adopt that legislation,” says Steve Oberle, who was the Taylor County conservationist when the rules were passed. “I already saw that it was basically paving the way for CAFOs, which came right after that.”
Oberle was nominated by the group Midwest Environmental Advocates to sit on the review board right around the time that the attempted compromise bill to update the rules failed to get through the state Legislature. Oberle’s nomination was paused after then-Secretary-designee of DATCP Brad Pfaff was removed from his post by the state Senate, and the seat has remained empty ever since.
DATCP spokesperson Morgan Cavitt said in a statement that the agency solicited nominations for the review board this January and received responses after the Legislature had already adjourned its session. The nominees, Cavitt said, will be announced ahead of the next legislative session for the Senate to act upon.
“With member positions expiring, DATCP sent a letter to industry in January to solicit nominations for board members,” she said. “DATCP received the final recommendation responses in April after the adjournment of the legislative session. Nominations for the LFSRB will be announced prior to the start of the next legislative session, during which the Senate may take the nominations up for a vote. In the event that any business comes before the LFSRB between now and Senate confirmation, the listed members remain the same.”
If Gov. Tony Evers loses his re-election campaign and there is new leadership at DATCP at the start of the next session, the incoming Republican administration would have the ability to completely fill the board and overhaul the makeup of the body. The three Republican candidates for governor did not respond to questions about their plans for the review board and livestock siting policies in Wisconsin.
Without the ability to tailor local rules for themselves, there was no way for communities to intervene if they didn’t want a massive dairy operation to open within city limits. That lack of local control frustrates some people who run smaller farms just as much as it frustrates conservationists because of the threats CAFOs can cause to the local environment and water supply.
“We have great concerns, our family, about the big farms and the seemingly trend toward bigger and bigger farms, and what has been very frustrating over the last couple decades in wisconsin is we’ve taken away local control,” says Sarah Lloyd, an agriculture researcher at UW-Madison who helps run her husband’s family’s 450-cow dairy farm outside of Wisconsin Dells. “The livestock siting board was all about taking away local control. Our rural communities are not thriving. The shift in the structure of dairy production from many many farms to fewer and fewer but larger and larger farms is not a benefit to our communities and brings with it greater ecological risk. The big operators will say, ‘we’re so regulated.’ Maybe, but you’re also concentrating a ton of manure in one place. That’s not a risk we should take with our water.”
Frustrated dairy groups
Even the state’s largest dairy interests want to see an update to the rules, but for different reasons than the environmental groups. The state’s agricultural industry has changed a lot since 2006 and now that most of the state’s remaining dairy farms are getting bigger and bigger, industry representatives argue that the rules should reflect those changes.
“The need for improvements to the livestock siting law in Wisconsin is stark,” Dairy Business Association President Amy Penterman said in a written statement to the Wisconsin Examiner. “Obstructive town ordinances that are catching hold across the state are a prime example. State and local governments are regulating 21st century farms as if we are still in the 20th century. Providing the flexibility to innovate with operations and conservation practices is vital if we want to achieve the best possible results for our rural communities and the farmers who underpin them.”
“At the same time we reimagine the system of rules, we also need to consider the fundamental relationship between farmers and government,” she continued. “Working together to address concerns is far more productive than defaulting to further restrictions. The goals should be shared: robust rural communities, clean natural resources and financially sustainable farms.”
Cavitt, the DATCP spokesperson, says the agency has regularly conducted reviews of its rules even though the 2019 deal fell through. Moving forward, she said the agency wants the public to be involved in debates about the issue.
“DATCP continues to meet the statutory requirement to utilize a technical review committee to review the rule, as prescribed in statute, every four years,” Cavitt said. “Rulemaking reviews have taken place since it first became law, but ultimately resolution could not be reached. DATCP will continue to encourage the public to engage on this as the agency conducts a technical review of the rule commencing in 2022.”