NR 151.095(3)(b) (b) If the department has determined that the issuance of a NOD to the owner or operator of the livestock operation is warranted. Circumstances in which a NOD may be warranted include:

NR 151.095(3)(b)1. 1. The department has determined that a livestock facility has a point source discharge under s. NR 243.24.

NR 151.095(3)(b)2. 2. The department has determined that a discharge to waters of the state is occurring and the discharge is not related to noncompliance with the performance standards or prohibitions.

NR 151.095(3)(b)3. 3. The department has determined that a municipality is not addressing a facility’s noncompliance with the performance standards and prohibitions in a manner consistent with the procedures and timelines established in this section.

NR 151.095(4) (4) Livestock owner and operator requirements.

NR 151.095(4)(a) (a) Introduction. This section identifies compliance requirements for a livestock owner or operator based on whether a livestock facility is existing or new and whether cost sharing is required to be made available to a livestock owner or operator.

NR 151.095(4)(b) (b) General requirements. If any livestock facility is meeting a livestock performance standard or prohibition on or after the effective date of the standard or prohibition, the livestock performance standard or prohibition shall continue to be met by the existing owner or operator, heirs or subsequent owners or operators of the facility. If an owner or operator alters or changes the management of the livestock facility in a manner that results in noncompliance with a livestock performance standard or prohibition, the owner or operator shall bring the livestock facility back into compliance regardless of cost-share availability.

NR 151.095 Note Note: The department or a municipality may use conservation plans, cost share agreements, deed restrictions, personal observations, landowner records, or other information to determine whether a change has occurred.

NR 151.095(4)(c) (c) Existing livestock facility requirements.

NR 151.095(4)(c)1. 1. An owner or operator of an existing livestock facility, defined under sub. (5) (b), shall comply with a livestock performance standard or prohibition if all of the following have been done by the department:

NR 151.095(4)(c)1.a. a. Except as provided in subd. 2., a determination is made that cost sharing has been made available in accordance with sub. (5) (d) on or after the effective date of the livestock performance standard or prohibition.

NR 151.095(4)(c)1.b. b. The owner or operator of the livestock facility has been notified in accordance with sub. (6) or (7).

NR 151.095(4)(c)2. 2. An owner or operator of an existing livestock facility, defined under sub. (5) (b), shall comply with the livestock performance standards and prohibitions, regardless of whether cost sharing is available, in situations where best management practices and other corrective measures needed to meet the performance standards do not involve eligible costs.

NR 151.095(4)(d) (d) New livestock facility requirements. An owner or operator of a new livestock facility, defined under sub. (5) (b), shall comply with the livestock performance standards and prohibitions, regardless of whether cost sharing is available.

NR 151.095 Note Note: Under s. 281.16 (3) (e), Stats., an owner or operator may not be required by the state or a municipality 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 in accordance with this section.

NR 151.095(5) (5) Department determinations.

NR 151.095(5)(a) (a) Scope of determinations. If a livestock facility is not in compliance with a livestock performance standard or prohibition, the department shall make determinations in accordance with the procedures and criteria in this subsection.

NR 151.095(5)(b) (b) Livestock facility status. The department shall classify a non-complying livestock facility on an operation to be either new or existing for purposes of administering this section and s. 281.16 (3) (e), Stats. In making the determination, the department shall base the decision on the following:

NR 151.095(5)(b)1. 1. An existing livestock facility is one that meets all of the following criteria:

NR 151.095(5)(b)1.a. a. The facility is in existence as of the effective date of the livestock performance standard or prohibition.

NR 151.095(5)(b)1.b. b. The facility is not in compliance with a livestock performance standard or prohibition in this subchapter as of the effective date of the livestock performance standard or prohibition. The reason for noncompliance of the livestock facility may not be failure of the owner or operator to maintain an installed best management practice in accordance with a cost-share agreement or contract.

NR 151.095(5)(b)2. 2. A new livestock operation or facility is one that does not meet the definition under subd. 1., including:

NR 151.095(5)(b)2.a. a. A livestock operation or facility that is established or installed after the effective date of the livestock performance standard or prohibition, including the placement of livestock structures on a site that did not previously have structures, or placement of animals on lands that did not have animals as of the effective date of the livestock performance standard or prohibition, unless the land is part of an existing rotational grazing or pasturing operation.

NR 151.095(5)(b)2.b. b. For a livestock operation that is in existence as of the effective date of the livestock performance standard or prohibition that establishes or constructs or substantially alters a facility after the effective date of the livestock performance standard or prohibition, the facilities constructed, established or substantially altered after the effective date of the livestock performance standard or prohibition are considered new, except as specified in subd. 3.

NR 151.095(5)(b)2.c. c. A livestock facility that is in existence and in compliance with a livestock performance standard or prohibition on or after the effective date of the livestock performance standard or prohibition and that undergoes a change in the livestock facility that results in noncompliance with the livestock performance standard or prohibition. This includes manure storage facilities that fail to meet the requirements of s. NR 151.05 (3) and were either: constructed on or after October 1, 2002; or were constructed prior to October 1, 2002, and subject through October 1, 2002, to the operation and maintenance provisions of a cost share agreement.

NR 151.095(5)(b)3. 3. Pursuant to the implementation procedures in this section, if the department or a municipality directs an owner or operator of an existing livestock facility to construct a facility as a corrective measure to comply with a performance standard or prohibition on or after the effective date of the livestock performance standard or prohibition, or directs the owner or operator to reconstruct the existing facility as a corrective measure on or after the effective date of the livestock performance standard or prohibition, the constructed facilities are not considered new for purposes of installing or implementing the corrective measure.

NR 151.095(5)(b)4. 4. A livestock facility that meets the criteria in subd. 1. and has subsequently been abandoned shall retain its status as an existing livestock facility if livestock of similar species and number of animal units are reintroduced within 5 years of abandonment.

NR 151.095(5)(b)5. 5. Change in ownership may not be used as the basis for determining whether a livestock facility is existing or new for purposes of administering this subsection.

NR 151.095(5)(c) (c) Eligible costs.