DBA tells Polk County proposed livestock-related rules are illegal

 September 15, 2020

Polk County Board of Supervisors

Polk County Government Center

100 Polk County Plaza

Balsam Lake, WI 54180

Via Email Only To: Christopher.Nelson@copolk.wi.us

RE: Opposition to Proposed Swine CAFO Ordinance and Proposed Extension of the Swine CAFO Moratorium

Dear Chairman Nelson:

On behalf of the members of the Wisconsin Pork Association, the Wisconsin Dairy Business Association, the Wisconsin Cattlemen’s Association, the Wisconsin Corn Growers Association and the Wisconsin Association of Professional Agricultural Consultants, we write in opposition to two proposed Polk County resolutions: Resolution No. 37-20 “Amendment to Polk County Comprehensive Land Use Ordinance related to Swine CAFO’s in the Agricultural 20 Zoning District” and Resolution No. 36-20 “Resolution Extending Moratorium on Swine CAFO’s.”

We represent Wisconsin farmers. As such, we have seen a dramatic and devasting decrease in the numbers of farmers who are growing food in Wisconsin. In particular, Wisconsin has experienced a concerning decrease in farmers who raise hogs. In 1920, there were approximately 152,000 farms in Wisconsin with hogs. In 1964, that number had dropped to 38,808. Today, only 2,200 Wisconsin farms raise hogs.

The legislature recognized that inconsistent regulation was one of the factors that was contributing to loss of farms across Wisconsin. In an effort to ensure that livestock farmers across the state are regulated using consistent and science-based siting standards, the Wisconsin Legislature passed Wisconsin’s Livestock Facility Siting law in 20041 and the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) adopted Wis. Admin. Code Ch. ATCP 51 in 2006. This statute and rule provide certainty for Wisconsin farmers, while also allowing for flexibility for local political subdivisions within a consistent regulatory framework. The two resolutions proposed by Polk County violate the letter and the spirit of Wisconsin’s livestock facility siting laws.

1 Wis. Stat. s. 93.90 (2004).

2 Wis. Stat. s. 93.90 (2020).

Opposition to Resolution No. 37-20 “Amendment to Polk County Comprehensive Land Use Ordinance related to Swine CAFO’s in the Agricultural 20 Zoning District.”

Proposed Resolution No. 37-20 amends Polk County’s Comprehensive Land Use Ordinance to require a conditional use permit for a “Swine Concentrated Animal Feeding Operation (CAFO)” in an A-2 zoning district. Wisconsin’s livestock facility siting statute2 does not grant local political subdivisions the authority to disapprove a permit based on animal species. Accordingly, we believe that this proposed resolution is illegal. 2

Further, Wisconsin’s livestock facility siting statute requires political subdivisions that adopt livestock siting requirements to adopt all of the standards contained in Wis. Admin. Code. Ch. ATCP 51.3 The proposed Resolution fails to meet this legal requirement.

Finally, the Wisconsin DATCP wrote a letter to Jason Kjeseth and Malia Molone, Polk County Department of Land Information, clearly putting the County on notice that this proposed 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.” As such, we strongly encourage you to reject this proposal.

Opposition to Resolution No. 36-20 “Resolution Extending Moratorium on Swine CAFO’s.”

We also oppose proposed Resolution No. 36-20, which would extend the current moratorium on swine CAFOs in Polk County for an additional six (6) months because such an extension is illegal. Wis. Stat. § 59.69 specifically defines the zoning powers of counties, including the extent to which a county may impose moratoriums. Specifically, Wis. Stat. § 59.69(4) states: “The board may not enact a development moratorium, as defined in s. 66.1002 (1) (b), under this section or s. 59.03, by acting under ch. 236, or by acting under any other law, except that this prohibition does not limit any authority of the board to impose a moratorium that is not a development moratorium.”

Actions taken by the Wisconsin Supreme Court and the State Legislature have clarified that this statutory language does not give counties the ability to enact a moratorium on siting livestock farms. Specifically, Wis. Stat. §93.90(3)(a) states, “notwithstanding ss…. 59.69… a political subdivision may not disapprove or prohibit a livestock facility siting or expansion…”

Additionally, the Wisconsin Supreme Court interpreted § 93.90 in the case Adams v. Wis. Livestock Facilities Siting Review Bd. finding that the Legislature expressly withdrew the authority of political subdivisions to disapprove livestock facility siting permits.4 The Wisconsin Supreme Court held state statutes related to siting livestock facilities preempt any authority that a County has under s. 59.69. Therefore, we do not believe that Polk County has the authority to extend the Proposed Moratorium on the creation or expansion of livestock farms.

Thank you for your consideration of our concerns.

Sincerely,

Keri Retallick, Wisconsin Pork Association

John Holevoet, Dairy Business Association

Matt Ludlow, Wisconsin Cattlemen’s Association

Nicole Wagner, Wisconsin Corn Growers Association

Eric Birschbach, Wisconsin Association of Professional Agricultural Consultants