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)1.1. Local ordinances or regulations that address cropping practices that are not directly related to the livestock operation. NR 151.096 NoteNote: 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 NoteNote: 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)(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 NoteNote: 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 HistoryHistory: CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02. 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 NoteNote: 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.