Chapter NR 151

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.

NR 151.097 History History: CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02.

subch. III of ch. NR 151 Subchapter III — Non-Agricultural Performance Standards

NR 151.10 NR 151.10 Purpose. This subchapter establishes performance standards, as authorized by s. 281.16 (2) (a), Stats., for non-agricultural facilities and practices that cause or may cause nonpoint runoff pollution. These performance standards are intended to limit nonpoint runoff pollution in order to achieve water quality standards. Design guidance and the process for developing technical standards to implement this section are set forth in subch. V.

NR 151.10 History History: CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02.

NR 151.105 NR 151.105 Construction site performance standard for non-permitted sites.

NR 151.105(1) (1) Applicability. Except as provided under sub. (2), this section applies to all of the following:

NR 151.105(1)(a) (a) A construction site that consists of land disturbing construction activity of less than one acre.

NR 151.105 Note Note: Land disturbing construction sites of less than one acre are not regulated under subch. III of ch. NR 216 unless designated by the department under s. NR 216.51 (3).

NR 151.105(1)(b) (b) Construction projects that are exempted by federal statutes or regulations from the requirement to have a national pollutant discharge elimination system permit issued under 40 CFR 122, for land disturbing construction activity.

NR 151.105(2) (2) Exemptions. This section does not apply to the following:

NR 151.105(2)(a) (a) One- and two- family dwellings regulated by the department of safety and professional services pursuant to s. 101.653, Stats.

NR 151.105(2)(b) (b) Agricultural facilities and practices.

NR 151.105(2)(c) (c) Silviculture activities.

NR 151.105(3) (3) Responsible party. The landowner of the construction site or other person contracted or obligated by other agreement with the landowner to implement and maintain construction site BMPs is the responsible party and shall comply with this section.

NR 151.105(4) (4) Requirements. Erosion and sediment control practices at each site where land disturbing construction activity is to occur shall be used to prevent or reduce all of the following:

NR 151.105(4)(a) (a) The deposition of soil from being tracked onto streets by vehicles.

NR 151.105(4)(b) (b) The discharge of sediment from disturbed areas into on-site storm water inlets.

NR 151.105(4)(c) (c) The discharge of sediment from disturbed areas into adjacent waters of the state.

NR 151.105(4)(d) (d) The discharge of sediment from drainage ways that flow off the site.

NR 151.105(4)(e) (e) The discharge of sediment by dewatering activities.

NR 151.105(4)(f) (f) The discharge of sediment eroding from soil stockpiles existing for more than 7 days.

NR 151.105(4)(g) (g) The transport by runoff into waters of the state of chemicals, cement and other building compounds and materials on the construction site during the construction period. However, projects that require the placement of these materials in waters of the state, such as constructing bridge footings or BMP installations, are not prohibited by this paragraph.

NR 151.105 Note Note: In accordance with subch. V, the department has developed technical standards to help meet the construction site performance standards. These technical standards are available from the department at dnr.wi.gov.

NR 151.105(5) (5) Location. BMPs shall be located so that treatment occurs before runoff enters waters of the state.

NR 151.105(6) (6) Implementation. The BMPs used to comply with this section shall be implemented as follows:

NR 151.105(6)(a) (a) Erosion and sediment control practices shall be constructed or installed before land disturbing construction activities begin.

NR 151.105(6)(b) (b) Erosion and sediment control practices shall be maintained until final stabilization.

NR 151.105(6)(c) (c) Final stabilization activity shall commence when land disturbing activities cease and final grade has been reached on any portion of the site.

NR 151.105(6)(d) (d) Temporary stabilization activity shall commence when land disturbing construction activities have temporarily ceased and will not resume for a period exceeding 14 calendar days.

NR 151.105(6)(e) (e) BMPs that are no longer necessary for erosion and sediment control shall be removed by the responsible party.

NR 151.105 History History: CR 09-112: cr. Register December 2010 No. 660, eff. 1-1-11; correction in (2) (a) made under s. 13.92 (4) (b) 6., Stats., Register February 2023 No. 806.

NR 151.11 NR 151.11 Construction site performance standard for sites of one acre or more.

NR 151.11(1) (1) Determination of soil loss. In this section, soil loss is calculated using the appropriate rainfall or runoff factor, also referred to as the R factor, or an equivalent design storm using a type II distribution, with consideration given to the geographic location of the site and the period of disturbance.

NR 151.11 Note Note: The universal soil loss equation and its successors, revised universal soil loss equation and revised universal soil loss equation 2, utilize an R factor which has been developed to estimate soil erosion, averaged over extended time periods. The R factor can be modified to estimate monthly and single-storm erosion.

NR 151.11(2) (2) Applicability. This section applies to any construction site that consists of one acre or more of land disturbing construction activity.

NR 151.11(2)(a) (a) Subsections (3), (4), (5), (6), and (7) apply to all of the following:

NR 151.11(2)(a)1. 1. Construction sites for which the department received a notice of intent in accordance with subch. III of ch. NR 216 before January 1, 2011.

NR 151.11(2)(a)2. 2. Construction sites for which the department of commerce received a notice of intent in accordance with ch. SPS 360 before January 1, 2011.

NR 151.11(2)(a)3. 3. Construction sites for which a bid has been advertised or construction contract signed for which no bid was advertised, before January 1, 2011.

NR 151.11(2)(b) (b) Subsections (3) (a) to (d), (4), (5), (6m), (7), and (8) apply to all of the following:

NR 151.11(2)(b)1. 1. Construction sites for which the department received a notice of intent in accordance with subch. III of ch. NR 216 on or after January 1, 2011.

NR 151.11(2)(b)2. 2. Construction sites for which a bid has been advertised or construction contract signed for which no bid was advertised, on or after January 1, 2011.

NR 151.11(3) (3) Exemptions. This section does not apply to the following:

NR 151.11(3)(a) (a) Construction projects that are exempted by federal statutes or regulations from the requirement to have a national pollutant discharge elimination system permit issued under 40 CFR 122, for land disturbing construction activity.

NR 151.11(3)(b) (b) Transportation facilities, except transportation facility construction projects that are part of a larger common plan of development such as local roads within a residential or industrial development.

NR 151.11 Note Note: Transportation facility performance standards are given in subch. IV.

NR 151.11(3)(c) (c) Nonpoint discharges from agricultural facilities and practices.

NR 151.11 Note Note: This exemption is for nonpoint discharges from agricultural facilities and practices, such as cropping and pasturing. Subchapter III of ch. NR 216 also exempts nonpoint discharges, but regulates point source discharges of storm water, such as the construction of barns, manure storage facilities, sand settling lanes, and barnyard runoff control systems. Under s. NR 216.42 (2), such construction sites are subject to the construction performance standards of this section.

NR 151.11(3)(d) (d) Nonpoint discharges from silviculture activities.

NR 151.11(3)(e) (e) Routine maintenance for project sites that have less than 5 acres of land disturbance if performed to maintain the original line and grade, hydraulic capacity or original purpose of the facility.

NR 151.11(4) (4) Responsible party. The landowner or other person performing services to meet the performance standards of this subchapter, through a contract or other agreement with the landowner, is the responsible party and shall comply with this section.

NR 151.11(5) (5) Plan. The responsible party under sub. (4) shall develop and implement a written plan for each construction site. The plan shall incorporate the applicable requirements of this section.

NR 151.11 Note Note: The written plan may be that specified within s. NR 216.46, the erosion control portion of a construction plan or other plan.

NR 151.11(6) (6) Pre-January 1, 2011 requirements. The plan required under sub. (5) shall include the following:

NR 151.11(6)(a) (a) Best management practices that, by design, achieve, to the maximum extent practicable, a reduction of 80% of the sediment load carried in runoff, on an average annual basis, as compared with no sediment or erosion controls, until the construction site has undergone final stabilization. No person shall be required to exceed an 80% sediment reduction to meet the requirements of this paragraph. Erosion and sediment control BMPs may be used alone or in combination to meet the requirements of this paragraph. Credit toward meeting the sediment reduction shall be given for limiting the duration or area, or both, of land disturbing construction activity, or other appropriate mechanism.

NR 151.11(6)(b) (b) Notwithstanding par. (a), if BMPs cannot be designed and implemented to reduce the sediment load by 80%, on an average annual basis, the plan shall include a written and site-specific explanation why the 80% reduction goal is not attainable and the sediment load shall be reduced to the maximum extent practicable.

NR 151.11(6)(c) (c) Where appropriate, the plan shall include sediment controls to do all of the following to the maximum extent practicable:

NR 151.11(6)(c)1. 1. Prevent tracking of sediment from the construction site onto roads and other paved surfaces.

NR 151.11(6)(c)2. 2. Prevent the discharge of sediment as part of site de-watering.

NR 151.11(6)(c)3. 3. Protect separate storm drain inlet structures from receiving sediment.

NR 151.11(6)(d) (d) The use, storage and disposal of chemicals, cement and other compounds and materials used on the construction site shall be managed during the construction period to prevent their transport by runoff into waters of the state. However, projects that require the placement of these materials in waters of the state, such as constructing bridge footings or BMP installations, are not prohibited by this paragraph.