Chapter NR 243

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)(b)5. 5. Other factors relevant to water quality impacts.

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.

NR 243.26(4) (4) WPDES terms and conditions.

NR 243.26(4)(a) (a) WPDES permits issued under this subchapter shall contain requirements designed to implement corrective measures to address unacceptable practices, to protect groundwater and surface waters, and to prevent impairments to wetland functional values. At a minimum, permits shall contain requirements that a permittee do all of the following:

NR 243.26(4)(a)1. 1. Comply with livestock performance standards and prohibitions, regardless of the availability of cost sharing.

NR 243.26(4)(a)2. 2. Address manure, process wastewater and contaminated runoff from the production area in a manner that is consistent with accepted management practices and that treats or contains all manure, process wastewater and contaminated runoff for storm events up to and including a 25-year, 24-hour storm event.

NR 243.26 Note Note: In determining accepted management practices for small and medium CAFOs, the department shall consider the factors contained in 40 CFR 125.3 (d).

NR 243.26(4)(a)3. 3. Control all discharges from the production area in a manner that does not cause exceedances of groundwater or surface water quality standards or impair wetland functional values.

NR 243.26(4)(a)4. 4. Develop and implement a nutrient management plan in accordance with s. NR 243.14 for the land application of manure and process wastewater.

NR 243.26(4)(a)5. 5. Comply with the requirements in ss. NR 243.13 (5) (b) and (6) to (8) and 243.142 (5).

NR 243.26(4)(a)6. 6. Conduct periodic inspections of the production area and land application equipment at a frequency specified in the WPDES permit.

NR 243.26(4)(a)7. 7. Conduct manure, process wastewater and soil sampling in accordance with WPDES permit conditions.

NR 243.26(4)(a)8. 8. Maintains and submit reports to the department in accordance with WPDES permit conditions.

NR 243.26 Note Note: The WPDES permit requirements outlined in this subsection for small and medium CAFOs, including the requirement to develop and implement a nutrient management plan in accordance with s. NR 243.14, are only mandatory for those small and medium operations that have been issued a WPDES permit. For small and medium CAFOs that have not been issued a WPDES permit, nutrient management requirements contained in ch. ATCP 50 apply.

NR 243.26(4)(b) (b) All submitted plans and specifications or evaluations of facilities or structures required under a WPDES permit shall be done in accordance with ss. NR 243.15 and 243.16 unless the department includes alternative requirements in the WPDES permit.

NR 243.26 Note Note: Under par. (b), all permitted medium and small CAFOs are required to install 180 days of storage for liquid manure.

NR 243.26(4)(c) (c) The permittee shall comply with the operation and maintenance requirements in s. NR 243.17, unless the department includes alternative requirements in the WPDES permit.

NR 243.26 Note Note: Pursuant to s. 283.31, Stats., and federal regulations, a point source discharge by a medium size CAFO is prohibited unless the discharge is covered by, and in compliance with, a WPDES permit.

NR 243.26 Note Note: Pursuant to ch. NR 153, operations covered by a WPDES permit are no longer eligible for cost sharing under s. 281.65, Stats.

NR 243.26(5) (5) General permits. The department may issue a general permit to cover a category of medium or small CAFOs.

NR 243.26(6) (6) Reissuance or termination of WPDES coverage. If a medium or small CAFO is covered by an individual or general WPDES permit, the owner or operator shall maintain permit coverage and shall reapply for continued coverage at least 180 days prior to the expiration of the WPDES permit unless:

NR 243.26(6)(a) (a) The permittee has ceased operation or is no longer a CAFO.

NR 243.26(6)(b) (b) The permittee has demonstrated to the satisfaction of the department that there is no remaining potential for a discharge to navigable waters of manure and process wastewater that was generated while the operation was a CAFO, or there is no remaining potential to cause well contaminations.

NR 243.26 History History: CR 05-075: cr. Register April 2007 No. 616, eff. 7-1-07.

subch. IV of ch. NR 243 Subchapter IV — CAFO Enforcement

NR 243.31 NR 243.31 Enforcement.

NR 243.31(1) (1) If the department finds that the owner or operator of a CAFO violated a term or condition of its WPDES permit, the department may, following notice to the permittee, modify, suspend or revoke the permit, in whole or in part, under s. 283.53 (2), Stats.

NR 243.31(2) (2) If the department finds that the owner or operator of a CAFO is violating a term or condition of its WPDES permit, any requirement in this chapter or ch. 283, Stats., or that the owner or operator of a CAFO is discharging manure or process wastewater pollutants to waters of the state without a WPDES permit, the department may refer the matter to the department of justice for enforcement, pursuant to s. 283.89, Stats. In an enforcement action, the department may seek temporary or permanent injunctive relief and may seek the civil and criminal penalties established in s. 283.91, Stats. The department may recover the costs of investigating the violation and the expenses of prosecution, including attorneys fees under s. 283.91 (5), Stats., and the costs of removing, terminating or remedying the adverse effects on the water environment under s. 283.87, Stats.

NR 243.31 History History: CR 05-075: cr. Register April 2007 No. 616, eff. 7-1-07.