NR 243.23(1)(1)
Livestock performance standards and prohibitions. NR 243.23(1)(a)(a) Owners and operators of animal feeding operations shall comply with the livestock performance standards and prohibitions in accordance with the requirements s.
NR 151.095.
NR 243.23(1)(b)
(b) The department may grant a variance to livestock performance standards or accepted management practices consistent with s.
NR 151.097. A variance may not be granted to a livestock prohibition or other statutory requirements.
NR 243.23 Note
Note: Additional procedures for implementing cropland performance standards are included in ch.
NR 151.
NR 243.23 Note
Note: Under s.
281.16 (3) (e), Stats., an owner or operator may not be required by the state, or a governmental unit through an ordinance or regulation, to bring existing livestock facilities into compliance with the livestock performance standards or prohibitions, technical standards or conservation practices unless cost sharing is available.
NR 243.23 History
History: CR 05-075: cr.
Register April 2007 No. 616, eff. 7-1-07.
NR 243.24
NR 243.24
Department discharge determination and NODs. Unless based on information provided as part of a WPDES permit application submitted pursuant to s.
NR 243.26 (1), no determination may be made by the department that an unacceptable practice exists at an operation until there has been an onsite investigation by the department or a federal or state agency or governmental unit.
NR 243.24(1)
(1) Categories of unacceptable practices. The department shall identify the categories of discharge associated with unacceptable practices pursuant to the following criteria:
NR 243.24(1)(a)
(a)
Category I. A category I unacceptable practice is a practice or facility at an animal feeding operation that causes a point source discharge of pollutants to navigable waters by either of following means:
NR 243.24(1)(a)1.
1. Pollutants are discharged into navigable waters through a man-made ditch, flushing system or other similar man-made device.
NR 243.24(1)(a)2.
2. Pollutants are discharged into navigable waters that originate outside of the operation and pass over, across or through the operation or otherwise come into direct contact with the animals confined at the operation.
NR 243.24(1)(b)
(b)
Category II. A category II unacceptable practice is a practice or facility at an animal feeding operation that causes a discharge of pollutants to waters of the state that is the result of an owner's or operator's failure to comply with a livestock performance standard or prohibition in ss.
NR 151.05 to
151.08. For Category II discharges, waters of the state has the meaning specified under s.
281.01 (18), Stats.
NR 243.24(1)(c)
(c)
Category III. A category III unacceptable practice is a practice or facility at an animal feeding operation that caused a discharge of pollutants to waters of the state and that is not described in par.
(a) or
(b).
NR 243.24(2)
(2) Coordination with governmental units. Unless an unacceptable practice is an imminent threat to public health or fish and aquatic life, the department shall notify the appropriate governmental unit prior to taking any of the following actions:
NR 243.24(2)(a)
(a) Contacting an owner or operator of an animal feeding operation under the procedures in this subchapter to investigate a discharge from an unacceptable practice.
NR 243.24(2)(b)
(b) Issuing an NOD for a category II unacceptable practice.
NR 243.24(2)(c)
(c) Taking enforcement action under s.
281.98, Stats., against an owner or operator of an animal feeding operation for failing to comply with a livestock performance standard or prohibition.
NR 243.24(3)
(3) Department action. If the department determines that an unacceptable practice exists at an operation based on its own onsite investigation, an investigation conducted by a federal or state agency or governmental unit, or information provided as part of WPDES permit application, the department may take any of the following actions:
NR 243.24(3)(a)1.1. The department may coordinate with a designated governmental unit to address the unacceptable practice and provide assistance to the owner or operator. This contact shall be made as soon as possible after the determination that an unacceptable practice exists at an operation to maximize opportunities for the governmental unit to provide assistance to the owner or operator.
NR 243.24(3)(b)
(b)
Category I unacceptable practices. For category I unacceptable practices, the department may take any of the following actions:
NR 243.24(3)(b)1.
1. Issue an NOD to the owner or operator of the animal feeding operation to address the unacceptable practices.
NR 243.24(3)(b)2.
2. Send the owner or operator a permit application if the owner or operator has not filed a WPDES permit application pursuant to s.
NR 243.26.
NR 243.24 Note
Note: In general, the department considers factors such as the degree of harm to a waterbody and the level of mismanagement or negligence by an owner or operator when deciding whether to take direct enforcement action.
NR 243.24(3)(c)
(c)
Category II unacceptable practices. For category II unacceptable practices, the department may take any of the following actions:
NR 243.24(3)(c)1.
1. Issue an NOD if requested by a governmental unit or if a governmental unit is not addressing a facility's noncompliance with livestock performance standards or prohibitions in a manner consistent with the procedures established in ch.
NR 151.
NR 243.24(3)(d)
(d)
Category III unacceptable practices. For category III unacceptable practices, the department may take any of the following actions:
NR 243.24 Note
Note: In most cases, the department will rely on governmental units to fully implement the livestock performance standards and prohibitions and address impacts to water quality from category II unacceptable practices. The department intends to issue NODs in accordance with this section in cases where a governmental unit has requested assistance in implementing and enforcing the performance standards or prohibitions or in cases where a governmental unit has failed to appropriately address unacceptable practices at animal feeding operations in a timely manner. The department recognizes that coordination between governmental units, the department of agriculture, trade and consumer protection and other state agencies is needed to achieve statewide compliance with the performance standards and prohibitions. Accordingly, the department has worked with counties, the department of agriculture, trade and consumer protection and other interested partners to develop a detailed intergovernmental strategy for achieving compliance with the performance standards and prohibitions that recognizes the procedures in this subchapter, state basin plans and the priorities established in land and water conservation plans.
NR 243.24(4)(a)
(a) If the department issues an NOD to an owner or operator of an animal feeding operation, it shall be sent certified mail, return receipt requested or personal delivery.
NR 243.24(4)(b)
(b) The department shall include all of the following information in an NOD:
NR 243.24(4)(b)1.
1. A summary of the results of the onsite investigation used to determine that unacceptable practices exist at an operation. The summary shall include a determination of the category of the unacceptable practice that exists at the operation. The department shall provide a copy of the summary to the animal feeding operation and appropriate governmental unit.
NR 243.24(4)(b)2.
2. One or more suggested corrective measures for the unacceptable practice identified in the summary report. The department may amend an NOD at any time to reflect changes to suggested corrective measures based on further evaluation and planning associated with addressing the unacceptable practice.
NR 243.24(4)(b)3.
3. A list of known governmental or private services that may be available to provide technical or financial assistance.
NR 243.24(4)(b)4.
4. For category II unacceptable practices, the NOD shall contain determinations consistent with s.
NR 151.095, except that the length of the compliance period shall be determined in accordance with subd.
5. Determinations required under s.
NR 151.095 may be included as part of the NOD or as amendments to the NOD.
NR 243.24 Note
Note: Section
NR 151.095 contains the criteria and establishes the procedures for determining when cost sharing is required for eligible costs associated with corrective measures and when cost sharing is considered to have been made available. Cost sharing is not required for new facilities and for practices that do not involve eligible costs, such as moving a manure pile. Cost sharing for eligible costs may be available under ch.
NR 120 or
153.
NR 243.24(4)(b)5.
5. A reasonable compliance period for implementing necessary corrective measures shall be specified in the NOD. The compliance period identified in the NOD shall be determined by the department in accordance with the following:
NR 243.24(4)(b)5.a.
a. The length of the compliance period shall be from 60 days to 2 years unless otherwise provided for in this paragraph.
NR 243.24(4)(b)5.b.
b. The length of the compliance period may be less than 60 days if the site is an imminent threat to public health or fish and aquatic life.
NR 243.24(4)(b)5.c.
c. The compliance period may not be more than 2 years unless an alternative compliance period has been mutually agreed upon by the department and the owner or operator of the animal feeding operation.
NR 243.24(4)(b)5.d.
d. For existing practices or facilities where corrective measures require cost sharing in accordance with s.
NR 151.095 and where cost sharing has not previously been made available, the compliance period specified in an NOD shall begin on the date that cost share dollars are available pursuant to s.
NR 151.095 (5) (d).
NR 243.24 Note
Note: Cost-share dollars may be offered as part of an NOD or may be included in an amendment to an NOD.
NR 243.24(4)(b)5.e.
e. For all other practices or facilities, the compliance period specified in the NOD shall begin on the date of the NOD, regardless of the availability of cost sharing.
NR 243.24(4)(b)6.
6. An explanation of the possible consequences if the owner or operator fails to comply with the provisions of the notice, including enforcement or loss of cost sharing, or both.
NR 243.24(4)(c)
(c) The department may request that proposed corrective measures be submitted to the department for review prior to implementing the corrective measures.
NR 243.24(4)(d)
(d) The department may require that accepted management practices be superseded by additional design requirements or practices if they are necessary for water quality protection.
NR 243.24(4)(e)
(e) The department may require that the owner or operator of the animal feeding operation, or a designee, notify the department as to the status of implementing the corrective measures prior to the end of the compliance period.
NR 243.24 History
History: CR 05-075: cr.
Register April 2007 No. 616, eff. 7-1-07.
NR 243.25(1)(a)(a) Owners or operators or animal feeding operations that receive an NOD for a category I or III unacceptable practice shall implement corrective measures within the compliance period specified, regardless of the availability of cost sharing. The owner or operator may seek cost sharing to implement corrective measures within the specified compliance period, but if cost sharing is not available, the owner or operator shall install corrective measures to abate or eliminate the discharge without cost sharing or otherwise apply for a WPDES permit.
NR 243.25(1)(b)
(b) If the owner or operator does not implement the corrective measures within the specified time frame to address category I or III unacceptable practices, the department may issue a specific WPDES permit or grant general permit coverage or the department may pursue enforcement action under ch.
283, Stats.
NR 243.25(2)
(2) Category II. For operations issued an NOD for a category II unacceptable practice, if the owner or operator of the animal feeding operation does not implement corrective measures within the compliance period specified in the NOD, and cost sharing has been made available for existing facilities or practices or if cost sharing is not required under s.
NR 151.095, the department may take enforcement action pursuant to s.
281.98, Stats., require the submittal of a WPDES permit application or take other appropriate actions against the owner or operator.
NR 243.25 Note
Note: The procedures specified in this subchapter for category II unacceptable practices are limited to actions taken by the department under s.
281.98, Stats., for noncompliance with a livestock performance standard or prohibition. Pursuant to other statutory authority, the department may take direct enforcement action without cost sharing against a livestock producer for willful or intentional acts or other actions by a producer that pose an imminent or immediate threat to human health or the environment.
NR 243.25 History
History: CR 05-075: cr.
Register April 2007 No. 616, eff. 7-1-07.
NR 243.26
NR 243.26
WPDES permits for medium and small CAFOs. NR 243.26(1)(1)
Operations defined as a medium CAFO. Any owner or operator of an animal feeding operation with 300 to 999 animal units shall submit a complete application for a WPDES permit to the department before a category I discharge to navigable waters occurs. An owner or operator of an animal feeding operation that has 300 to 999 animal units may not have a Category I discharge to navigable waters under s.
NR 243.24 (1) (a) unless the discharge is covered by and in compliance with a WPDES permit. In the event an owner or operator of an animal feeding operation has a Category I discharge to navigable waters and that operation is not covered by a WPDES permit at the time of the discharge, the owner or operator shall immediately contact the department and shall immediately apply for a WPDES permit.
NR 243.26(2)
(2) Operations designated as medium or small CAFOs. NR 243.26(2)(a)(a) Subject to par.
(c), for animal feeding operations not already defined as a CAFO under sub.
(1), the department may designate an animal feeding operation with 999 animal units or less as a CAFO if all of the following occur:
NR 243.26(2)(a)1.
1. The department conducts an onsite investigation of the operation.
NR 243.26(2)(a)2.a.
a. The operation is a significant contributor of pollutants to navigable waters and the department considers the factors in par.
(b) when making this determination; or
NR 243.26(2)(a)2.b.
b. The operation has caused the fecal contamination of water in a well constructed in accordance with ch.
NR 811 or
812.
NR 243.26(2)(a)3.
3. For discharges of pollutants from land applied manure or process wastewater to navigable waters by an animal feeding operation with 300 to 999 animal units, the department determines the discharge was not an agricultural storm water discharge.
NR 243.26(2)(a)4.
4. The department provides written notification to the owner or operator of the designation.
NR 243.26 Note
Note: Consistent with past regulatory practices, the department intends to continue to work cooperatively with animal feeding operations to address discharges to waters of the state to the maximum extent practicable in order to make designation of an operation as a CAFO unnecessary. This approach includes using voluntary programs or the issuance of an NOD, which typically provides an opportunity to obtain cost-share and technical assistance, to aid an operation to implement corrective measures.
NR 243.26 Note
Note: Written notification by the department may be included as part of a Category I, II or III NOD or a separate written notice may be sent to the owner or operator.
NR 243.26 Note
Note: For animal feeding operations with less than 300 animal units, a significant discharge of pollutants to navigable waters from land application activities is not a basis for designating an operation as a CAFO and requiring a WPDES permit-see par. (c). For animal feeding operations with 300-999 animal units, a significant discharge of pollutants to navigable waters from either the production area or land application areas is a basis for CAFO designation and WPDES permit coverage.
NR 243.26(2)(b)
(b) The department shall consider all of the following factors when determining whether an operation is a significant contributor of pollutants to navigable waters under par.
(a):
NR 243.26(2)(b)1.
1. The size of the animal feeding operation and the amount of manure or process wastewater reaching navigable waters.
NR 243.26(2)(b)2.
2. The location of the operation's production and land application areas relative to the navigable waters.
NR 243.26(2)(b)3.
3. The means of conveyance of the manure or process wastewater into navigable waters.
NR 243.26(2)(b)4.
4. The slope, vegetation, rainfall and other factors affecting the likelihood or frequency of discharges of manure or process wastewater into navigable waters.
NR 243.26(2)(c)
(c) If the animal feeding operation has less than 300 animal units, the department may not designate the operation as a CAFO based on the discharge criteria in par.
(a) 2. a. unless the operation had a Category I discharge to navigable waters under s.
NR 243.24 (1) (a) that the department determines contributed a significant amount of pollutants to navigable waters.
NR 243.26(2)(d)
(d) If an animal feeding operation is designated as a CAFO under par.
(a), the owner or operator of the operation shall take one of the following actions within 90 days of written notification by the department of the designation:
NR 243.26(2)(d)1.
1. In accordance with sub.
(3), submit a completed WPDES permit application for an individual permit or for general permit coverage to the department. If a general permit is not available from the department, the permittee shall apply for an individual permit.
NR 243.26(2)(d)2.
2. Demonstrate to the complete satisfaction of the department that the owner or operator has taken actions to permanently eliminate or significantly reduce the discharge that was the basis of the designation.
NR 243.26(2)(e)
(e) If the owner or operator fails to take the actions required in par.
(d) within 90 days of notification, the department may take enforcement action.
NR 243.26(3)
(3) Applications. Applications shall, at a minimum, be submitted on forms 3400-25 and 3400-25A. The department may require additional information as part of the permit application consistent with the requirements of subch.
II.
NR 243.26 Note
Note: Applications can be obtained at regional offices of the department or the department's Bureau of Watershed Management, 101 S. Webster St., P.O. Box 7921, Madison, Wisconsin 53707.
