VERNON AND MONROE COUNTIES - Vernon and Monroe counties took another step toward pursuing updates and revisions to their manure storage ordinances. The two counties held a joint meeting on Wednesday, Feb. 24, and heard a presentation from DATCP’s Land Resource Management Section Chief Jennifer Heaton-Amrhein.

The virtual meeting was attended by almost 30 conservation professionals, farmers of all sizes, elected representatives, business owners and interested citizens. 

Representatives from Loren Oldenburg and Congressman Ron Kind’s offices participated in the meeting. At one point, Loren Oldenburg participated in the meeting in-person.

Crawford County Conservationist Dave Troester participated in the meeting, as did Forest Jahnke from Crawford Stewardship Project.

Farmers participating included Tomah dairyman Duane Chapman, Cashton dairy farmer Jack Herrick (Monroe Town of Jefferson board chairman and president of the Monroe County Farm Bureau), Cashton dairy farmer Phil Mlsna, Genoa organic dairy farmer Travis  Klinkner, Vernon County dairy farmer William Walleser, and Vernon County dairy and crop farmer Robert Nigh (Vernon County Farm Bureau President and Wisconsin Farm Bureau board member).

“The purpose of this meeting is to review the aged manure storage ordinances of Vernon and Monroe counties,” Monroe County Conservationist Bob Micheel explained. “Many of the standards and specifications in our ordinances are 20 years old, and we want to update with current standards and specifications, and address agricultural issues relating to the state manure runoff rule NR-151.”

Vernon County Conservationist Ben Wojahn spoke to frame the mission of the joint ordinance review process.

“Our shared mission in this effort is to come together to pursue what is best for the environment, public health and safety, and the health of our agricultural economy,” Wojahn said. “The mission is not one or the other, but rather all three.”

Ordinance overview

DATCP’s Heaton-Amrhein told the group that her purpose in participating in the meeting was to give an overview of manure storage ordinances in Wisconsin counties. She stated that the statute governing the authority of counties to adopt manure storage ordinances is contained in Wisconsin Chapter 92.16. This statutory provision has allowed counties to adopt manure storage ordinances since July of 1983. 

Heaton-Amrhein further explained that the DATCP rule ATCP 50 governs the criteria for construction of manure storage structures. These provisions, however, are not mandated for inclusion in manure storage ordinances. Amrhein said that 62 counties have adopted manure storage ordinances, with 18 including the performance standards from ATCP 50 in their ordinances. Another 30 counties have adopted the manure management prohibitions from NR-151.

Those prohibitions include:

• No overtopping of manure storage facilities

• No direct runoff from feedlots

• No manure stacking within 300 feet of a stream/river, or 1,000 feet of a lake

• Maintain grass/sod cover within the stream corridor

“There are many counties around the state that are working on updates to their manure storage ordinances,” Heaton-Amrhein said. “Counties are taking a variety of different approaches, and I can furnish you with a list of some of the different things they are doing.”

Heaton-Amrhein said that ATCP 50 includes definitions, construction provisions, closure provisions and the conditions where a closure is required, monitoring provisions and nutrient management planning, an appeal process, and guidelines about when the rule is applicable.

“If counties include performance standards or the prohibitions in their ordinances, the requirement is that they be consistent with state law,” Heaton-Amrhein said. “I am not giving legal advice, and any changes you are considering should be reviewed by your county corporate counsel.”

Heaton-Amrhein said that some examples of changes being contemplated by other counties include:

• including a technical standard with a date, and referencing that date or “the most recent version adopted by the Land Conservation Committee” in the language of the ordinance

• setting fees annually by the Land Conservation Committee

• use provisions allowing for more inspections regarding maintenance and compliance with nutrient management plans, including an annual checklist to be turned in by a given date

Discussion

Both Micheel and Wojahn expressed that it is their hope that their counties will be able to do things similar to what other counties are looking at in revising their ordinances.

“The runoff rules in NR-151 relate to all of this as well,” Wojahn said. “What we want to pursue is creativity, fairness, and flexibility in imposing penalties for violations with a reasonable, stepped approach, that allows us to use our discretion in implementation.”

Wojahn pointed out that the WDNR had confirmed for the Vernon County Land Conservation Committee that the county has experienced a disproportionately large amount of manure spills and fish kills in recent years. He said his committee had discussed whether they could use their ordinance to impose financial penalties per fish killed in a manure spill situation, with a low-to-no penalty for a first time violator, and a larger penalty for repeat offenders.

Heaton-Amrhein was quick to reaffirm that she was not providing the counties with any legal advice. That being said, when she had checked with the WDNR about counties’ authority to fine for fish kills, they reported that they had identified no statutory authority, but that if it was to be found, it would be in Chapter 29 (Wild Animals and Plants). 

“You may not be able to impose a fine per fish,” Heaton-Amrhein said. “But it is possible you could tie a penalty structure to violations that cause fish to die. Imposing a fine to cover the cost of clean up is probably a grey area.”

Heaton-Amhrein said that writing some discretionary authority about imposition of penalties into an ordinance might be permissible. She said that there is precedent for something like that in the pesticide laws, on which different levels of violations can be treated differently – taking into account intentionality, egregiousness, and whether it is a repeat offense.

Penalties

Travis Klinkner asked about how other counties measure the intensity of a violation. He asked if the counties have a penalty for the violation, but relate it to the number of dead fish?

Heaton-Amrhein suggested that the counties check with their coporate counsels about whether severity could be, at least in part, defined by the number of dead fish. She said that before an operator is penalized, some counties are requiring a ‘Certificate of Use’ be obtained by the operator, with an annual or biannual inspection by county staff. The goal of such a program is to engage in proactive prevention of violations so that a spill or fish kill might be avoided. Micheel pointed out that WDNR penalties are based on the number of dead fish.

Gerald Klinkner asked about how the ordinance and penalties would work with an operator who hires a manure applicator. He asked if any history is kept about applicators and prior violations.

Micheel responded that in the situation of a spill/fish kill, both the operator and the applicator are on the hook for it with WDNR. He said that the state does not keep records about applicator violations, but that maybe what is needed is a state certification for manure haulers.

Heaton-Amrhein confirmed that DATCP does not maintain records of applicator violations, nor do they certify manure applicators. She said DATCP does require engineers to sign off on the design specifications for manure storage structures, meaning that those professionals do have their licenses at stake in the process.

Duane Chapman stated that he agreed with a tiered-approach to penalties because “stuff happens,” and it could happen to anyone. He said he agrees with Wojahn, and that what is critical is how things are handled after the fact.

Vernon County Conservation Technician Matt Albright pointed out that relating penalties to fish kills is a little inexact. He said that this is the case because some streams have a higher density of fish than others, and he said that this can skew the results. He said that he personally is leaning more towards the ‘Certificate of Use’ approach.

Heaton-Amrhein pointed out that there have been very bad spills that haven’t killed any fish, and other first time violations where a large number of fish have been killed.

Storage or management

Robert Nigh raised the question of whether the group was involved in the discussion of manure storage or manure management. He asked whether either county was experiencing problems with manure storage structures, and whether those problems were growing or lessening.

“Well, storage and management are the two basic elements relating to manure,” Micheel responded. “In a more modern approach, we would include management, and address storage structures when the manure leaves the lagoon.”

Micheel said that his department had conducted an inventory of violators along stream corridors in Monroe County a couple of years ago. In that process he said they had identified more than 50 issues.

“Overtopping is not an uncommon issue in Vernon County,” Wojahn responded. “We also have situations with runoff from barnyards and overgrazing in stream corridors. Actually, one of the trickiest parts can be maintaining sod along the streams.”

Nigh asked if the provisions in NR-151 would be enforced without inclusion in a county ordinance.

Wojahn responded “they will only be enforced if they are incorporated into the county ordinance.”

Heaton-Amrhein agreed that the best way to ensure the prohibitions in NR-151 are enforced is to include them in the county manure storage ordinance. She pointed out that the WDNR doesn’t have enough staff for enforcement, and so it is essential that county land conservation staff can assist with that.

Nigh asked if the counties have enough staff for enforcement.

“Most problems are really pretty simple to fix,” Micheel said. “ So if the county is working with the operator proactively, there will be less chance for a serious violation.”

“Our enforcement efforts are usually complain-driven,” Wojahn said. “What we need is clear enforcement authority, especially where there are issues of belligerent non-compliance. We want to be proactive, not reactive.”

Nigh asked Representative Loren Oldenburg if it was looking likely that the legislature would approve more money for county land conservation department staff.

“It’s in the budget now, but I don’t know if it will remain in the budget,” Oldenburg said. “Last year, increased funding for county land conservation staff was passed by the assembly, but it was not passed by the senate.”

Certificate of Use

Travis Klinkner said that he liked Matt Albright’s idea of taking the ‘Certificate of Use’ approach.

“I know it will be more work for the farmers and the land conservation staff,” Klinkner said. “But I think it will be good to have an annual conversation, it will be simple and easy for county staff, and it will be good for maintaining the image of farmers in the community.”

Micheel responded that a Certificate of Use would have lots of similarities to Farmland Preservation Zoning in requiring more frequent communication and certification of operations.

“In Monroe County, we have 70 storage facilities, and we rotate visiting them every few years,” Micheel explained. “Our visits usually make for a great relationship, and often lead to other improvement projects.”

Nigh asked if the Certificate of Use would be required just for farms with manure storage structures, or if it would be required for all farms with livestock.

Micheel responded that it would only be for farms with manure storage structures.

Wojahn responded that there is also the possibility for negative impacts on farms without storage structures. He asked if perhaps definitions for stack size, duration and location should be considered.

Public health

Nigh said that when Wojahn referenced public health as one of the missions of the group, he assumed that this was referencing groundwater. How will you address that?

Wojahn thanked Nigh for bringing the subject up, and stated that a fractured karst bedrock landscape, with features like sinkholes, makes protection of groundwater more difficult. He stated that perhaps the group should look at prohibitions against stacking next to a karst feature.

Micheel pointed out that the most current NRCS 313 (Waste Storage Facility) standard defines things like separation of groundwater and bedrock, and horizontal distances to sinkholes or ravines.

Nigh asked if the work being done by the state Nitrate Task Force on developing special protections for sensitive areas would come into the process.

Heaton-Amrhein said that the targeted performance standards to be proposed are not yet out for public comment. She said that it is likely to be a long process, and the counties could wait and then consider any further updates if and when the task force’s recommendations are passed into law.

Abandoned facilities

There was extensive discussion about whether to include language about abandoned storage facilities, and how land buyers could be protected from liabilities associated with storage facilities that had not been properly shut down.

Micheel said that he has been trying for years to get idle storage facilities included on the list of disclosures for properties that are being sold. 

Duane Chapman observed that if a structure is abandoned for more than a couple of years, it likely will not go back into use. He said that if use were to be resumed, then inspections and possibly upgrades would be required.

Phil Mlsna commented that when he had recently purchased a property and decided to put a storage structure back into operation, it had cost him $6-7 thousand. 

“Nothing is grandfathered in, and a re-inspection will be required right away, even if the structure is only five years old,” Mlsna said.

Wojahn explained that what Chapman and Mlsna had experienced was because their operations are permitted as confined animal feeding operations (CAFOs), and is not how it works for non-permitted operations. He said, however, that Mslna’s comment had given him an idea – that when there is a transfer of ownership, perhaps a new Certificate of Use for the storage facility should be required.

Travis Klinkner asked Wojahn if his department maintains a list of all operations in the county with livestock?

“We did do a survey along the stream corridors a few years back,” Micheel said. “However, that won’t tell us about all the other places that stacking can occur, for instance up on ridgetops at the head of gullies and in other out of the way places.”

Wojahn confirmed that it is the same in Vernon County, but that things are better in towns that have adopted Farmland Preservation Zoning. Matt Albright said that the county does have a list dating from 2002.

Travis Klinkner commented that the prohibitions in NR-151 go beyond manure storage structures.

“Farmers with manure storage structures are already on the radar,” Klinkner pointed out. “I think it would be good to include all farms with livestock in the requirement to have a Certificate of Use.”

Micheel said that the issues resulting just from his county’s inventory along stream corridors was already a very big number. He said that his department sends out letters every year about the issues, but that staff time is the limiting factor. He said that most of the issues involved simple fixes, but as things currently stand, if there is no progress, then his department will involve WDNR.

“Our goal is to work with farmers and provide education and technical support,” Wojahn emphasized. “We want to work with farmers, and the more staff our departments have, the more that we can offer.”

Nigh raised the question of whether a Certificate of Use would transfer with the transfer of property, and what value would be placed on a structure that is, or one that is not, in compliance in a land sale.

Micheel responded that this is why storage structures need to be added to the disclosure list.

Albright said that the Certificate of Use could contain language encouraging the seller, buyer and/or agent to contact the Land Conservation Department prior to a sale. Wojahn pointed out that there should be fewer issues if they are addressed on an ongoing basis through the Certificate of Use reissuance process.

Technical support

Nigh raised the question of whether farmers could expect technical support when issues were raised in the reissuance process for a Certificate of Use.

Wojahn responded that it is currently difficult for county land conservation departments to have enough staff time to provide the technical support they would like to provide. He pointed out, however, that departments also struggle with outdated ordinances.

Travis Klinkner stated that the Certificate of Use process may actually reduce the need for staff time in the end because more issues will be dealt with proatively, and the standards will be more cut and dried.

“Farmers and land conservation staff need to advocate together to the legislature for them to prioritize public health and the agricultural economy,” Nigh said. “We need to put pressure on our decision-makers for support in putting practices on the land to protect surface and groundwater.”