Chapter NR 151

NR 151.095(5)(d) (d) Determination of cost-share availability.

NR 151.095(5)(d)1. 1. For purposes of administering this section and s. 281.16 (3) (e), Stats., if cost sharing is required to be made available under sub. (4) (c), the department shall make a determination as to whether cost sharing has been made available on or after the effective date of the livestock performance standard or prohibition to cover eligible costs for an owner or operator to comply with a livestock performance standard or prohibition.

NR 151.095(5)(d)2. 2. Cost sharing under s. 281.65, Stats., shall be considered available when all of the following have been met:

NR 151.095(5)(d)2.a. a. Cost share dollars are offered in accordance with either of the following: the department has entered into a runoff management grant agreement under ch. NR 153 or a nonpoint source grant agreement under ch. NR 120, and a notice under sub. (6) or under s. NR 243.24 (4), including any required offer of cost sharing, has been issued by the department or a municipality; or the department directly offers cost sharing and issues a notice under sub. (6) or s. NR 243.24 (4).

NR 151.095(5)(d)2.b. b. The grants in subd. 2. a., alone or in combination with other funding determined to be available under subd. 3., provide at least 70% of the eligible costs to implement the best management practices or other corrective measures needed for a livestock facility to meet a livestock performance standard or prohibition.

NR 151.095(5)(d)2.c. c. In cases of economic hardship determined in accordance with s. NR 154.03 (3), the grants in subd. 2. a., alone or in combination with other funding determined to be available under subd. 3., provide cost sharing consistent with the hardship determination.

NR 151.095(5)(d)2.d. d. If an existing livestock operation with less than 250 animal units wants to expand at the time it is upgrading a facility to meet a performance standard or prohibition pursuant to a notice in sub. (6) or under s. NR 243.24 (4), the grants in subd. 2. a., alone or in combination with other funding determined to be available under subd. 3., shall also provide at least 70% of eligible costs needed to bring any expansion of facilities of up to 300 animal units into compliance with the performance standard or prohibition. In cases of economic hardship, the grants in subd. 2. a., alone or in combination with other funding determined to be available under subd. 3., shall also provide between 70% and 90% of the eligible costs needed to bring any expansion of facilities of up to 300 animal units into compliance with the performance standards and prohibitions.

NR 151.095 Note Note: For livestock operations with less than 250 animal units, that portion of any expansion of facilities to accommodate more than 300 animal units is not eligible for cost sharing under s. NR 153.15 (2) (d) 1. For an existing livestock operation with greater than 250 animal units, but less than the number of animal units requiring a WPDES permit under s. NR 243.12 (1) (a), (b) or (c), cost sharing may be provided under s. NR 153.15 (2) (d) 2., for at least 70% of eligible costs to bring up to a 20% increase in livestock population into compliance with the performance standards and prohibitions; however, cost sharing for eligible costs up to a 20% expansion in livestock population is not required to be made available for compliance.

NR 151.095(5)(d)3. 3. For funding sources other than those administered by s. 281.65, Stats., the department may make a determination of cost share availability after consulting with DATCP and ch. ATCP 50.

NR 151.095 Note Note: Under s. 281.16 (3) (e), Stats., DATCP is responsible for promulgating rules that specify criteria for determining whether cost sharing is available from sources other than s. 281.65, Stats., including s. 92.14, Stats. Pursuant to s. 281.16 (3) (e), Stats., a municipality is required to follow the department’s definition of cost share availability if funds are utilized under s. 281.65, Stats. If funds are utilized from any other source, a municipality shall defer to DATCP’s definition of cost share availability.

NR 151.095(6) (6) Notification requirements and compliance periods for existing livestock facilities when cost sharing is required.

NR 151.095(6)(a) (a) Owner or operator notification.

NR 151.095(6)(a)1. 1. The department shall notify an owner or operator in writing of the determinations made under sub. (5) and implementation requirements for existing livestock facilities where cost sharing is required for compliance.

NR 151.095(6)(a)2. 2. The notice shall be sent certified mail, return receipt requested or personal delivery.

NR 151.095(6)(a)3. 3. The following information shall be included in the notice:

NR 151.095(6)(a)3.a. a. A description of the livestock performance standard or prohibition being violated.

NR 151.095(6)(a)3.b. b. The livestock facility status determination made in accordance with sub. (5) (b).

NR 151.095(6)(a)3.c. c. The determination made in accordance with sub. (5) (c) as to which best management practices or other corrective measures needed to comply with a livestock performance standard or prohibition are eligible for cost sharing.

NR 151.095 Note Note: Some best management practices required to comply with a livestock performance standard or prohibition involves no eligible costs to the owner or operator.

NR 151.095(6)(a)3.d. d. The determination made in accordance with sub. (5) (d) that cost sharing is available for eligible costs to achieve compliance with a livestock performance standard or prohibition, including a written offer of cost sharing.

NR 151.095(6)(a)3.e. e. An offer to provide or coordinate the provision of technical assistance.

NR 151.095(6)(a)3.f. f. A compliance period for meeting the livestock performance standard or prohibition.

NR 151.095(6)(a)3.g. g. An explanation of the possible consequences if the owner or operator fails to comply with provisions of the notice, including enforcement or loss of cost sharing, or both.

NR 151.095(6)(b) (b) Compliance period.

NR 151.095(6)(b)1. 1. An owner or operator that receives the notice under par. (a) shall install or implement best management practices and corrective measures to meet a performance standard or prohibition in the time period specified in the notice, if cost sharing is available in accordance with sub. (5) (d) 2.

NR 151.095(6)(b)2. 2. The compliance period identified in the notice in par. (a) shall be determined by the department as follows:

NR 151.095(6)(b)2.a. a. The compliance period shall begin on the post-mark date of the notice or the date of personal delivery.

NR 151.095(6)(b)2.b. b. The length of the compliance period shall be not less than 60 days nor more than 3 years unless otherwise provided for in this subdivision.

NR 151.095(6)(b)2.c. c. 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 151.095(6)(b)2.d. d. The department may authorize an extension up to 4 years on a case-by-case basis provided that the reasons for the extension are beyond the control of the owner or operator of the livestock facility. A compliance period may not be extended to exceed 4 years in total.

NR 151.095(6)(b)3. 3. Once an owner or operator achieves compliance with a livestock performance standard or prohibition, compliance with the standard or prohibition shall be maintained by the existing owner or operator and heirs or subsequent owners or operators, regardless of cost sharing.

NR 151.095(7) (7) Notification requirements and compliance periods for existing livestock facilities in situations when no eligible costs are involved.

NR 151.095(7)(a) (a) Owner or operator notification.

NR 151.095(7)(a)1. 1. The department shall notify a non-complying owner or operator of an existing livestock facility of the determinations made under sub. (5).

NR 151.095(7)(a)2. 2. The notice shall be sent certified mail, return receipt requested or personal delivery.

NR 151.095(7)(a)3. 3. The following information shall be included in the notice:

NR 151.095(7)(a)3.a. a. A description of the livestock performance standard or prohibition that is being violated and the determination that corrective measures do not involve eligible costs under sub. (5) (c).

NR 151.095(7)(a)3.b. b. The livestock operation status determination made in accordance with sub. (5) (b).

NR 151.095(7)(a)3.c. c. A compliance period for meeting the livestock performance standard or prohibition. The compliance period may not exceed the time limits in par. (b).

NR 151.095(7)(a)3.d. d. An explanation of the consequences if the owner or operator fails to comply with provisions of the notice.

NR 151.095(7)(b) (b) Compliance period.

NR 151.095(7)(b)1. 1. The compliance period for existing livestock facilities where best management practices and other corrective measures do not involve eligible costs shall be in accordance with the following;

NR 151.095(7)(b)1.a. a. The compliance period shall begin on the postmark date of the notice or the date of personal delivery.

NR 151.095(7)(b)1.b. b. The length of the compliance period shall be not less than 60 days nor more than 3 years unless otherwise provided for in this subsection.

NR 151.095(7)(b)1.c. c. 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 151.095(7)(b)2. 2. Once compliance with a livestock performance standard or prohibition is attained, compliance with the performance standard or prohibition shall be maintained by the existing owner or operator and heirs or subsequent owners or operators.

NR 151.095(7)(c) (c) Combined notices. The department may meet multiple notification requirements under par. (a), sub. (6) and s. NR 151.09 within any single notice issued to the owner or operator.

NR 151.095(8) (8) Enforcement.

NR 151.095(8)(a) (a) Authority to initiate enforcement. The department may take action pursuant s. 281.98, Stats., or other appropriate actions, against the owner or operator of a livestock operation for failing to comply with the livestock performance standards and prohibitions in this subchapter or approved variances to the livestock performance standards provided by the department under s. NR 151.097.

NR 151.095(8)(b) (b) Enforcement following notice and direct enforcement. The department shall provide notice to the owner or operator of an existing livestock facility in accordance with sub. (6) or (7) prior to the department initiating enforcement action under s. 281.98, Stats., except in cases of repeated mismanagement, such as allowing repeated manure storage overflows, where the department may pursue direct enforcement under s. 281.98, Stats., for the second and subsequent offenses.

NR 151.095 Note Note: The implementation and enforcement procedures in this section 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 151.095 Note Note: An owner or operator of a new livestock facility is required to meet the livestock performance standards and prohibitions at the time the new facility is created. This requirement shall be met regardless of cost sharing.

NR 151.095(9) (9) Notification to municipalities. The department shall notify the appropriate municipality, including a county land conservation committee, prior to taking any of the following actions under this subsection:

NR 151.095(9)(a) (a) Contacting an owner or operator to investigate compliance with livestock performance standards and prohibitions.

NR 151.095(9)(b) (b) Issuing a notice under sub. (6) or (7) to an owner or operator.

NR 151.095(9)(c) (c) Taking enforcement action under s. 281.98, Stats., against an owner or operator for failing to comply with a livestock performance standard or prohibition in this subchapter.

NR 151.095(9)(d) (d) Notification is not required if the site is an imminent threat to public health or fish and aquatic life.

NR 151.095 History History: CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02; CR 09-112: am. (1) (intro.), (5) (b) 2. c., 5., (c) 3., (d) 2. a., c., (6) (b) 2. b., (7) (b) 1. b., (8) (b), r. (6) (a) 3. h., (7) (a) 3. e. Register December 2010 No. 660, eff. 1-1-11.

NR 151.096 NR 151.096 Local livestock operation ordinances and regulations.

NR 151.096(1) (1) Local regulations that exceed state standards; approval required.

NR 151.096(1)(a) (a) Except as provided in par. (b), a local governmental unit may not enact a livestock operation ordinance or regulation for water quality protection that exceeds the performance standards or prohibitions in ss. NR 151.05 to 151.08 or the related conservation practices or technical standards in ch. ATCP 50, unless the local governmental unit obtains approval from the department under sub. (2), or receives approval from DATCP pursuant to s. ATCP 50.60.

NR 151.096(1)(b) (b) Paragraph (a) does not apply to any of the following:

NR 151.096(1)(b)1. 1. Local ordinances or regulations that address cropping practices that are not directly related to the livestock operation.

NR 151.096(1)(b)2. 2. Local ordinances or regulations enacted prior to October 1, 2002.

NR 151.096 Note Note: See s. 92.15, Stats. A person adversely affected by a local livestock regulation may oppose its adoption at the local level. The person may also challenge a local regulation in court if the person believes that the local governmental unit has violated sub. (1) or s. 92.15, Stats. A local governmental unit is responsible for analyzing the legal adequacy of its regulations, and may exercise its own judgment in deciding whether to seek state approval under this section.

NR 151.096 Note Note: Subsection (1) does not limit or expand the application of s. 92.15, Stats., to ordinances or regulations enacted prior to October 1, 2002.

NR 151.096(2) (2) Department approval.

NR 151.096(2)(a) (a) To obtain department approval under sub. (1) 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 of the following:

NR 151.096(2)(a)1. 1. Submit a copy of the livestock operation ordinance or regulation or portion thereof to the department and to the department of agriculture, trade and consumer protection.

NR 151.096(2)(a)2. 2. Identify the provisions of the regulation for which the local governmental unit seeks approval.

NR 151.096(2)(a)3. 3. Submit supporting documentation explaining why the specific regulatory provisions that exceed the performance standards, prohibitions, conservation practices or technical standards are needed to achieve water quality standards, and why compliance cannot be achieved with a less restrictive standard.

NR 151.096(2)(b) (b) The department shall notify the local governmental unit in writing within 90 calendar days after the department receives the ordinance or regulation as to whether the ordinance or regulation, or portion thereof is approved or denied and shall state the reasons for its decision. Before the department makes its decision, the department shall solicit a recommendation from DATCP. If the department finds the regulatory provisions are needed to achieve water quality standards, the department may approve the ordinance or regulation or portion thereof.

NR 151.096(3) (3) Local permits. Local permits or permit conditions are not subject to the review and approval procedures in this section unless the permit conditions are codified in a local ordinance or regulation.

NR 151.096 Note Note: A local permit requirement does not, in and of itself, violate sub. (1), but permit conditions codified in a local ordinance or regulation must comply with sub. (1). If a local governmental unit routinely requires permit holders to comply with uncodified water quality protection standards that exceed state standards, those uncodified requirements may be subject to court challenge for noncompliance with s. 92.15, Stats., and sub. (1) 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, but will not review individual permits or uncodified permit conditions under sub. (2).

NR 151.096 History History: CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02.

NR 151.097 NR 151.097 Variances.

NR 151.097(1) (1) The department may grant a variance to the performance standards, technical standards or other non-statutory requirements in this subchapter.

NR 151.097(2) (2) The department may not grant a variance solely on the basis of economic hardship.

NR 151.097(3) (3) The department may grant a variance only if all of the following conditions are met:

NR 151.097(3)(a) (a) Compliance with the performance standard or technical standard is not feasible due to site conditions. This condition does not apply to research activities conducted as part of a planned agricultural research and farming curriculum.

NR 151.097(3)(b) (b) The landowner or operator will implement best management practices or other corrective measures that ensure a level of pollution control that will achieve a level of water quality protection comparable to that afforded by the performance standards in this subchapter.

NR 151.097(3)(c) (c) The conditions for which the variance is requested are not created by the landowner or operator or their agents or assigns. This condition does not apply to research activities conducted as part of a planned agricultural research and farming curriculum.

NR 151.097(4) (4) The department shall use the following process when administering a variance request:

NR 151.097(4)(a) (a) The landowner or operator shall submit the variance request to the department or governmental unit, including a county land conservation committee within 60 days of receiving the notice.

NR 151.097(4)(b) (b) The governmental unit shall forward any variances that it receives to the department. The department may consider a recommendation from the governmental unit concerning acceptance of the variance request.

NR 151.097(4)(c) (c) The department shall make its determination based on the factors in sub. (3).

NR 151.097(4)(d) (d) The department shall notify the landowner or operator and the governmental unit of its determination. If the variance is granted, the department or governmental unit shall send to the landowner or operator an amended notice.

NR 151.097(4)(e) (e) The period of time required to make a ruling on a variance request does not extend the compliance periods allowed under ss. NR 151.09 and 151.095.

NR 151.097 Note Note: The department may consider decisions made by a governmental unit, in accordance with local ordinance provisions, when making its determination whether to accept or deny the variance.