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Third in a three-part series

[Editor's note: This story has been updated to correct an error. It had incorrectly described the procedure used by the Rock County town of Magnolia.]

When Ron Leys and other members of the Crawford County Board approved a livestock farm siting law four years ago, they thought they were giving themselves more control over where big farms go.

Then came a proposal from a pig farm to expand on hilly ground just a few hundred yards from the boundaries of the Lower Wisconsin State Riverway.

And Leys, chairman of the county board, discovered the siting law afforded little protection. Instead, it appeared, the rules — which had been written by the state Department of Agriculture, Trade and Consumer Protection — largely block challenges by local communities to factory farms.

"These guys have put the handcuffs on us so tightly that we can't move," he said.

The law sets standards for location, odor and air emissions, manure spreading and runoff management, and manure storage. Town or county boards have the choice of adopting the rules or relying upon their own zoning rules.

The problem, Leys said, is that the state regulations are weak and the law prevents a local town or county from setting tougher standards without an expensive legal challenge.

Local officials throughout Wisconsin are coming to the same realization.

In Rock County, residents in the town of Magnolia now are in court because the state board that has final say over where large farms are located overruled the conditions the town put on a proposed farm expansion. Those conditions, which included tougher standards to protect surface and groundwater, were upheld in circuit court. The case is now before a state appeals court.

Warned of possible suit

In the Taylor County town of Little Black, officials have been warned by DATCP that they could open themselves to lawsuits if they try to pass stricter controls on odor from a proposed factory farm, for example, or tougher laws to protect their groundwater from the proposed farm's high-capacity wells.

"We are being pushed and bullied," said Neil Micke, a member of the town's planning committee.

Since the state's livestock facility siting law was put in place in 2006, none of the 50 requests to build or expand a farm has been turned down.

When the law was passed by the state, it required DATCP to conduct a review of the legislation after four years. That review is under way. Critics of the law, such as Leys, are hoping the review will prompt changes that will swing the pendulum back toward local control.

Among them is Matt Urch, who owns a small grass-fed livestock operation in Vernon County and has been involved in efforts to prevent construction of a nearby factory farm on the outskirts of Viroqua.

"I am outraged that the state of Wisconsin deemed it necessary to pass a law designed to protect the economic interests of factory farms by stripping away the ability of local citizens to pass common-sense measures to protect the health and safety of both people and the environment," said Urch.

Backers: Law restores balance

Supporters of the law say it is a necessary corrective to the not-in-my-backyard attitude of many local governments, some of which even adopted moratoriums against the large farms. Many of those who pushed for the law argued that dairy farming, a crucial contributor to the state's economy, was suffering because of the inability of some dairies to grow.

At legislative hearings on the bill, supporters, such as Roger Cliff, a lobbyist for the Wisconsin Farm Bureau Federation, said the law would ensure the state's livestock industry could grow and thrive. And Rod Nilsestuen, state agriculture secretary, said the law was necessary to reverse a decade of dwindling milk production that threatened Wisconsin's cheese industry.

Agriculture officials also cite a survey by DATCP that they said showed most permits reviewed under the siting law have been noncontroversial, an indication the law has widespread acceptance.

But critics charge the law is written so narrowly that challenges are nearly impossible.

The law says, for example, if a town or county chooses to adopt its own zoning rules or siting regulations, those rules must be based on "reasonable and scientifically defensible findings of fact" that "clearly show that the standards are needed to protect public health or safety."

That narrow language precludes standards that are based on broader concerns such as public welfare or quality of life, said Jamie Saul, a staff attorney for Midwest Environmental Advocates.

Especially affected by the siting law are those who live next to the farms, Saul said. For example, the law requires the farms' huge manure lagoons to be at least 350 feet from neighboring property lines — about the length of a football field, including the end zones. But that distance pales in comparison to the size of the pits, some of which are designed to hold tens of millions of gallons and cover an area the size of a small lake.

No groundwater standards

The law also doesn't regulate construction of the farms in areas where groundwater is especially susceptible to pollution because the underlying rock is highly fractured. Liquid manure improperly spread in those areas can work its way through the soil and rock to drinking water supplies.

Nor does it address lights — which at most factory farms remain on all night — noise, truck traffic or potential decreases in neighboring property values. And it does not set any limits on a farm's use of high-capacity wells, which pump millions of gallons of water a day and can affect nearby private wells.

At peak use, the wells planned for the proposed 4,000-cow dairy in the town of Little Black, for example, would pump more than four times the amount of water used by the 500 residents of the nearby village of Stetsonville.

An expert hired by the town also found that the proposed manure spreading plan shows the farm to be considerably short of the acreage it needs to safely spread waste without damaging surface or groundwater.

But town officials hoping to challenge the farm said they received a warning from DATCP in an April 21, 2009, letter.

"If you choose to pursue local requirements beyond the scope of the state siting law, the town will expose itself to unnecessary legal challenges from applicants and other interested parties that the town may not be able to defend," the letter stated,

The letter was signed by David Jelinski, who was then director of Land and Water Resources for DATCP. Last month, Jelinski went to work for the Dairy Business Association, a lobbying group for factory farms that helped write the siting law.


Siting law standards

The state's livestock facilities siting law requires large farms to meet standards in five areas:

• Location of structures. Includes setbacks, such as 350 feet from the nearest property line for manure storage structures.

• Odor and air emissions. Farms are required to meet a standard based on a predicted odor score. Odor is not regulated if all structures are at least 2,500 feet from nearest neighbor.

• Manure management. Sets guidelines where manure may be spread but does little to address spreading in areas where fractured bedrock could more easily lead to pollution of groundwater.

• Waste storage facilities. Sets standards to minimize the risk of stuctural failure or the potential for discharge to surface and groundwater, although many old storage units are difficult, if not impossible, to inspect.

• Runoff management. Includes a variety of requirements related to discharge from feed storage facilities and waste storage facilities, but monitoring wells are not required at all farms.