Wisconsin Legislature: ATCP 50.61(4)(c)

A local permit requirement does not, by itself, violate par. (a). But permit conditions codified in a local regulation must comply with par. (a). In the case of local permit conditions for new and expanding livestock operations, local governmental units must codify more stringent regulation and meet other requirements of s. ATCP 51.10 (3). If a local governmental unit routinely requires permit holders to comply with uncodified conservation requirements that exceed state standards, those uncodified requirements may be subject to court challenge under s. 92.15, Stats., and par. (a) as de facto regulatory enactments. A local governmental unit may forestall a legal challenge by codifying standard permit conditions and obtaining any necessary state approval under this section. The department will review codified regulations under sub. (2), but will not review individual permits or uncodified permit conditions.

(b) Paragraph (a) does not apply to any of the following:

1. Local regulation of cropping practices that are not directly related to a livestock operation.

2. Local regulations enacted prior to October 1, 2002. This does not limit the application of s. 92.15, Stats., to those local regulations.

(2) Department approval.

(a) To obtain department approval under sub. (1) (a) for an existing or proposed regulation, the head of the local governmental unit or the chair of the local governmental unit’s governing board shall do all the following:

1. Submit a copy of the regulation to the department and DNR.

2. Identify the provisions of the regulation for which the local governmental unit seeks approval.

3. Submit documentation showing why the identified provisions are needed to achieve compliance with water quality standards, and why compliance cannot be achieved by less stringent provisions.

(b) Within 90 days after the department receives a complete application under par. (a), the department shall grant or deny the requested approval. Before the department grants or denies the application, the department shall solicit a recommendation from DNR. The department shall issue its decision in writing, and shall state the reasons for its decision.

(c) The department may approve a provision identified under par. (a) 2. if the department finds that the provision is necessary to achieve compliance with water quality standards under s. 281.15, Stats., and that compliance cannot reasonably be achieved by less restrictive means.

(d) The department may not review or approve individual permits or permit conditions under this subsection, except that the department may review standard permit conditions that are codified in a local regulation. The department may approve those codified conditions if they meet the standard for approval under par. (c).

History: CR 01-090: cr. Register September 2002 No. 561, eff. 10-1-02.

Subchapter VIII — Standards for Practices Receiving Financial Assistance

Note: For information on how to obtain NRCS conservation practice standards and any other standards required under this subchapter, including any secondary standards incorporated by reference in those standards, a person may visit the department website at: https://datcp.wi.gov/Pages/Programs_Services/ATCP50.aspx, or contact the department in writing at the following address:

Wisconsin Department of Agriculture, Trade and Consumer Protection

Division of Agricultural Resource Management

P.O. Box 8911

Madison, WI 53708-8911

ATCP 50.61 General standards for practices receiving financial assistance; pre-approval of cost-shared practices.

(1) Practices must comply. Except as authorized under sub. (3), conservation practice standards and any other standards under this chapter, including any secondary standards incorporated by reference in those standards shall comply with applicable standards under this subchapter.

(2) Standards adopted by rule. The department may not adopt, amend, or repeal standards under this subchapter, except by rule.

(3) Voluntary use of updated technical standards. The department may authorize a county to provide financial assistance for a conservation practice to be implemented under the updated version of a technical or conservation practice standard listed in this subchapter. The county may provide financial assistance for the conservation practice using the updated standard if all of the following apply:

(a) The updated standard provides conservation benefits at least as beneficial as the version listed in this subchapter.

(b) The updated standard has been adopted by NRCS, DNR, the department, or the applicable entity listed in this subchapter.

(c) The landowner voluntarily agrees, in writing, to the use of the updated standard to implement the conservation practice.

(4) Pre-approval of cost-shared practices. The department may, at any time, require advance approval of any practice cost-shared under this chapter. The department shall provide written notice to affected parties of the cost-shared practices requiring pre-approval by the department and an opportunity for the affected parties to comment on the listed practices. The department shall do all of the following:

(a) Identify the practice for which pre-approval is required.

(b) Establish the conditions under which pre-approval is required and the process for securing the pre-approval.

(c) Provide at least 30 calendar days written notice to each county and other affected grant recipients before requiring pre-approval of the listed cost-shared practice.

History: CR 01-090: cr. Register September 2002 No. 561, eff. 10-1-02; CR 13-016: am. (title), (1), cr. (3), (4) Register February 2014 No. 698, eff. 5-1-14; CR 23-024: am. (title), (1), (3) (intro.), (a), (b) Register May 2024 No. 821, eff. 6-1-24.

ATCP 50.618 Technical standards development process.

(1) The department, in consultation with the department of natural resources, shall develop and revise technical standards to implement the performance standards and prohibitions under s. 281.16 (3) (a), Stats., if needed.

(2) The department may decide that the following is necessary to implement a performance standard:

(a) Develop a new technical standard for which the department will be the custodian.

(b) Revise an existing technical standard for which the department is the custodian.

(3) The department shall use the process used by the standards oversight council, or other inter-disciplinary team, when it acts to develop or revise technical standards for which it is the custodian. The process shall include the following:

(a) The department shall convene a work group that includes agencies and persons with technical expertise and direct policy interest.

(b) The work group shall publish a class 1 public notice and consider public comments received on the technical standard prior to providing recommendations to the department.

(4) Review and approval of technical standards.

(a) Upon receipt of a recommended technical standard or technical standard revision, the department shall determine if the technical standard will effectively achieve or contribute to achievement of the performance standards under s. 281.16 (3) (a), Stats.

(b) If the department determines that a recommended technical standard will not adequately or effectively implement a performance standard under s. 281.16 (3) (a), Stats., the recommended technical standard may not be used to implement a performance standard in whole or in part.

History: CR 23-024: cr. Register May 2024 No. 821, eff. 6-1-24; correction in numbering in section under s. 13.92 (4) (b) 1., Stats., Register May 2024 No. 821.

ATCP 50.62 Manure storage systems.

(1) Definitions. In this section:

(a) “Animal feeding operation” means a feedlot or facility, other than a pasture, where animals are fed, confined, maintained, or stabled for 45 days or more in any 12-month period. Two or more animal feeding operations under common ownership or management constitute a single animal feeding operation if any of the following apply:

1. The operations are adjacent.

2. The operations use common plans, acreage, or systems to landspread manure or other wastes.

3. Manure, barnyard runoff, or other wastes are commingled in a common storage facility prior to landspreading.

(b) “Manure management system” means a system of one or more practices, facilities, techniques, or measures used to prevent or reduce pollutants associated with manure. A “manure management system” may include one or more of the following:

1. A manure storage system.

2. A barnyard runoff control system as defined in s. ATCP 50.64 (1).

3. Nutrient management as defined in s. ATCP 50.78 (1).

4. Manure storage system closure as defined in s. ATCP 50.63 (1) (b).

5. Well abandonment as described in ch. NR 812.

6. A waste transfer system as defined in s. ATCP 50.93 (1).

(c) “Manure storage facility” means one or more manure storage structures. “Manure storage facility” includes stationary equipment and piping used to load or unload a manure storage structure if the equipment is specifically designed for that purpose and is an integral part of the facility. “Manure storage facility” does not include equipment used to apply manure to land.

(d) “Manure storage structure” means a manure storage impoundment made by constructing embankments, excavating a pit or dugout, or fabricating a structure. “Manure storage structure” does not include equipment used to apply manure to land.

(e) “Manure storage system” means a manure storage facility and related practices needed for the environmentally safe storage of manure at that facility. A “manure storage system” does not include any of the following:

1. A milking center waste control system, except for the system component used to transfer the waste to manure storage.

2. Nutrient management as defined in s. ATCP 50.78 (1).

3. A barnyard runoff control system as defined in s. ATCP 50.64 (1), except for the system component used to transfer the waste to manure storage.

4. Equipment used to apply manure to land.

5. A feed storage system, except for the system component used to transfer leachate and contaminated runoff to manure storage.

(2) Manure storage systems; eligible costs. A cost-share grant under s. ATCP 50.40 may reimburse any of the following costs related to a manure storage system:

(a) Costs to design or construct the system.

(b) Costs to purchase and install permanent fencing needed to protect the system.

(d) Costs to repair, reconstruct, or modify the system, or to abandon a related well, if all of the following apply:

1. The action is needed to meet water quality objectives.

2. The remaining portions of the system are fully operational.

3. The landowner has made a substantial investment in the system, and will lose that investment if the system is not repaired or modified.

(3) Manure storage systems; ineligible costs. A cost-share grant under s. ATCP 50.40 may not reimburse any of the following costs:

(a) Costs to design a manure storage system that is not installed.

(b) Costs to construct, modify, or support a building. This paragraph does not apply to a modification that is essential for the installation of a manure storage system, or to the construction of a roof pursuant to s. ATCP 50.84.

(c) Costs for equipment used to apply manure to land, including manure spreaders, portable pumps, and other nonstationary equipment.

(d) Any manure storage system costs related to an animal feeding operation if all of the manure from that operation could be applied to land according to the NRCS conservation practice standard 590 nutrient management (December, 2015) without causing or aggravating nonattainment of water quality standards.

(e) Costs of removing or spreading manure from the system.

(f) Costs for more than one manure storage system for an animal feeding operation.

(g) Costs for a manure storage system, to the extent that those costs exceed the cost of an equally effective alternative.

(h) That portion of the system capacity needed to accommodate a significant increase in the base livestock population size. If the landowner chooses a system with additional capacity, the cost-share grant will be prorated based on the eligible capacity. The following criteria shall be used in making the determinations under this paragraph, as applicable:

1. The criteria used in s. NR 151.095 (5) (d) 2. d. to determine the size of the base livestock population.

2. The criteria used in s. NR 151.095 (5) (d) 2. d. to determine significant increases to the base livestock population.

3. The calculation used in s. NR 243.11 (2) to measure animal units.

(i) A system capacity needed for a livestock population size for which a WPDES permit application is required under s. NR 243.12 (1) (a) or (b). The size of the livestock population shall be measured in animal units according to s. NR 243.11 (2).

(4) Manure storage systems; grant disqualification. A county land conservation committee may not award a cost-share grant for a manure storage system if any of the following apply:

(a) The landowner intentionally aggravated a pollution discharge from the animal feeding operation.

(b) The landowner could prevent the discharge of pollutants through improved management practices at nominal cost.