MARIETTA TOWNSHIP - Jennifer Heaton-Amrhein and Katy Smith of the State of Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) Land and Water Resources Bureau made a presentation to the Town of Marietta Rural Land & Infrastructure Conservation Working Group, (study group) at their meeting on October 21. 

The DATCP representatives’ presentation provided information to the study group that calls into the question the legality of the Town of Marietta’s 12-month CAFO moratorium. Because the township is not zoned, according to Smith, the legality of the township’s moratorium is “questionable.”

The study group still has an outstanding action item to hear a similar report from the Wisconsin Department of Natural Resources (WDNR) regarding issuance of a water quality permit for a livestock facility.

Study group facilitator Meredith Sime reported what the DATCP representatives had communicated to them to the town board at their meeting immediately following the study group meeting.

“The study group needs further direction from the town board about what the future of the moratorium and the study group are in light of the information presented by DATCP,” Sime told the board. “If the board decides to rescind the moratorium, then could the study group instead provide the facts and information we have assembled to the Crawford County Land Conservation Committee?”

Members of the board decided that any action would need to be postponed until their next meeting on Monday, Nov. 18, at 7 p.m., so it would appear on their agenda and offer proper public notice. Generally, though, the three weighed in on their appetite for enacting a Livestock Facility Siting ordinance or zoning in the township.

“I know what I’m thinking,” Town Board Chairman Teddy Beinborn said. “I was elected on the basis of not putting any more rules in place in the town.”

Supervisors Eric Sime and Reggie Lomas expressed agreement with Beinborn. The three agreed that at their next meeting, they might choose to go into closed session to discuss the matter.

The next week, Marietta Town Clerk Clifford Monroe told the Independent-Scout that before deciding exactly what items would be on the next town board meeting agenda, he plans to confer with the Towns Association. He told the Independent-Scout that as soon as the agenda becomes available, he would share it.

Permitting authority

According to the two DATCP representatives present at the meeting:

“Crawford County has adopted authority to regulate new or expanding livestock facilities through a licensing ordinance under the authority of ATCP 51 and s. 93.90, Wis. Stats. The Town of Marietta has approved a livestock moratorium pursuant to s. 61.34, Wis. Stats., in which it is saying through its authority to exercise village powers, the town has the authority to act for the health, safety and welfare of the public through licensing, regulation or other necessary and convenient means.” 

“The County has not taken on the obligation to enforce the town’s moratorium. If a landowner were to submit a complete application to the county for a license for a facility in the town, the county would need to proceed through normal processes to respond to the application. The question is if the town could legally enforce its moratorium to block a permitted facility from starting construction during the moratorium period because it has not yet exercised the authority to regulate new or expanding livestock facilities through licensing or zoning.” 

“It would basically come down to whether or not the township’s moratorium, adopted under the ‘village powers’ section of the state statutes, would survive a legal challenge from a livestock facility that had been permitted by the county,” Smith explained. “The operator applying for a facility permit from the county would also have had to obtain a water quality permit from the WDNR.”

Language in State Statute 93.90, ‘Livestock facility siting and expansion,’ does give a political subdivision authority to enact standards more stringent than statewide standards put forth in the law as follows:

93.90(3)(c) Notwithstanding ss. 59.69, 60.61, 60.62, 61.35, and 62.23, a political subdivision may not enact or enforce a zoning ordinance with a category of agricultural district in which livestock facilities are prohibited unless the political subdivision bases that 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.

Heaton-Amrhein explained that for a livestock facility over 1,000 animal units to be permitted, they must obtain both a livestock facility siting permit and a WDNR ‘Wisconsin Pollutant Discharge Elimination System’ (WPDES) permit. The WPDES permit is a ‘water quality’ permit. If a WPDES permit is obtained by the livestock facility operator, it can be attached to the livestock facility permit application and would replace three of the five worksheets required by DATCP and Crawford County. Livestock facilities under 1,000 animal units only need a livestock facility siting permit from the county, but must complete all five worksheets.

“The township has several options to enact standards stricter than the statewide standards to protect public health and safety,” Heaton-Amrhein told the study group. “The town could ask the county to incorporate stricter standards into their ordinance, the town could enact stricter standards through their zoning authority, or the town could adopt, administer and enforce their own livestock facility siting ordinance.”

Heaton-Amrhein specified that if the town does not wish to adopt their own ordinance or adopt zoning, they could petition the county to adopt a rule more stringent than state standards. Were the county to do so, they would need to include ‘scientifically defensible’ findings of fact in the ordinance to document why the more stringent rule is necessary.

If the more stringent rule is a ‘water quality’ rule, then WDNR and DATCP would be required to jointly approve the more stringent rule. If the more stringent rule related to something other than water quality, then it would need to be able to survive any challenges in court.

County moratorium

Some of the study group members present at their meeting on October 21 expressed that they might convert their efforts to passage of a Crawford County CAFO Moratorium if the town acts to rescind theirs. They also felt that the information gathered by the study group could be provided to the Crawford County Land and Water Conservation Committee.

Smith informed the study group that DATCP places a two-year cap on the time that a local jurisdiction may extend a CAFO moratorium.

The Independent-Scout asked the DATCP staff present about the proposed ‘Sensitive Area’ rulemaking for areas of the state with vulnerable hydro-geologies, to potentially be developed jointly by DATCP, WDNR, and the State Department of Health Services (DHS). 

Specifically, the Independent-Scout’s question concerned whether or not the rules potentially to be developed might apply to Crawford County, and whether this would justify an extension of the Marietta Township moratorium, a County CAFO moratorium, or adoption of a more stringent rule by Crawford County. The Independent-Scout also pointed out that well water testing had been done in the county, and more extensive testing is proposed for 2020. 

Tests already undertaken in the county by Crawford Stewardship Project and the Tainter Creek Watershed Council have shown problems with elevated nitrate in some wells in the county. Further, extensive well water testing and analysis has also recently been undertaken in the SWIGG Study in nearby Grant, Iowa and Lafayette counties. That testing has shown problems with well water quality, and those counties have a similar hydrogeology.

Surface water monitoring results in Crawford County have also brought to light some concerning information. The federal standard for colony forming units of E.coli, a particularly dangerous coliform bacteria that comes from animal waste (human, bovine, swine), is 126 cfu per one hundred milliliter (cfu/ml). A swimming health advisory is posted in public beaches at 750 cfu/100mL of E. coli and they are closed at a 1,000 cfu/100mL.

In Boydtown Creek in Wauzeka Township, at a monitoring location half a mile southeast of the intersection of Highway 60 and Knob Lane, E.coli readings of 82,000 cfu/100 ml were observed in October of 2018, and reached a new record of 170,000 cfu/100 ml in September of 2019. In Richland Creek, which flows south from Scott Township into Marietta Township, a reading of more than 25,000 cfu/100 ml was observed in October of 2018 and a reading of 70,000 cfu/100 ml in July of 2019.

“In the 15 counties in eastern Wisconsin where ‘Sensitive Area’ revisions to the statewide NR-151 Runoff Management law have been enacted by the legislature, some townships and counties are adopting the more stringent rules into their ordinances,” Heaton-Amrhein said. “Doing this allows them to implement the more stringent rules with farmers in their jurisdictions, and means they don’t have to wait for permit reissuance with the CAFOs in their jurisdictions to require them to implement the rules.”

At their October meeting, the State of Wisconsin Natural Resources Board voted to send the proposed scope statement for the rule making process Governor Evers has directed DATCP, DNR and DHS to undertake to address nitrate contamination of well water around the state to public hearings. That process, if approved to move forward, will develop ‘Sensitive Area’ rules for areas of the state with vulnerable hydro-geologies. Examples of areas that could be included would be counties in western Wisconsin with an underlying fractured karst geology overlain by shallow soils, areas in central Wisconsin with sandy soils and shallow aquifers, and more.

The statement of scope may be reviewed at and comments made at https;//docs.legis.wisconsin.gov/code/scope_statements/comment . Comments must be received by November 8, at 11:59 p.m. Oral and written comments can also be provided at the public hearings. The agency contact person regarding the hearings is Emma Esch, DNRAdministrativeRules@wisconsin.gov, 608-266-1959.

CRAWFORD COUNT SINKHOLE MAPPING PROJECT

As a part of their ongoing Karst Landscapes and Groundwater Susceptibility Survey of Crawford County, Crawford Stewardship Project hired Legion GIS to develop computer algorithms identifying all the closed depressions in the county. From there, CSP consulted with Professor Emeritus Kelvin Rodolfo to develop methodologies using available satellite imagery and detailed elevation data (LiDAR), for citizen scientists to examine all closed depressions in the county over 2' in depth, with some professional help, to identify possible and probable sinkholes. Using these methods and publicly available data, our citizen scientists identified over 450 major potential sinkholes, which we know only captures a fraction of the total number of sinkholes in the county. Sinkholes and springs are only surface indications of the complex and dissolving bedrock beneath our feet, hinting at the fractures, underground rivers, and caverns below.

ATCP-51 revisions

The Independent-Scout also queried the DATCP representatives present about where the process is at for a possible approval of revisions to ATCP-51, the rule adopted to administer the statewide Livestock Facility Siting Law. The rule to implement the 93.90 provisions of state statute, enacted in 2004, was originally developed by the DATCP in 2006. In the rule, a review and possible update is required every four years. Since original passage, the rule has been reviewed on schedule but never updated.

In August and early September of 2019, DATCP conducted a series of statewide public hearings on proposed revisions to the ATCP-51 rule. As described, the updates would eliminate and replace the current ‘odor score’ process, and bring other technical standards up to date with the most current standards as put forth by USDA-Natural Resource Conservation Service (NRCS) and other state and federal authorities.

“The proposed changes circulated for public comment have been revised, and the version that will go in front of the DATCP board is available on the board’s website. “The DATCP board will act on the recommendation at their November 7 meeting.”

As of Tuesday, Oct. 20, the final draft rule that will go before the DATCP Board have been posted on their website at https://datcp.wi.gov/Pages/About_Us/ATCPBoardMaterials.aspx

She went on to specify that in December 2019, the rule, if approved by the DATCP board, will be sent to the Governor for approval. In January 2020, the rule if approved by the Governor, will go to the Wisconsin State Legislature for approval.

The Independent-Scout asked Heaton-Amrhein if the DATCP board, the Governor and/or the Legislature do not approve the recommended updates, whether counties could choose to adopt those updates into their local ordinances?

“It would be difficult for a county to adopt the proposed revisions to ATCP-51 if the state does not adopt them,” Heaton-Amrhein responded.

NOTE: Former Wisconsin Agriculture Secretary Brad Pfaff, who the Wisconsin Senate voted to fire on Tuesday, Nov. 5, removed a vote on the proposed ATCP 51 revisions from the DATCP's Nov. 7 board agenda.

In other business

In other business, the study group

• accepted the resignation of Ken Cornish from the study group because he is going south for the winter.

• considered retired DNR Conservation Warden Tim Lawhern as a potential replacement for Cornish on the study group. Lawhern owns a property in Wauzeka Township that is “downstream from the proposed Roth Feeder Pig expansion in Marietta Township.”