Current through August 26, 2024
(1) PURPOSE. The purpose of this section is
to identify the procedures the department will follow in implementing and
enforcing the cropland performance standards pursuant to ss.
281.16(3) and
281.98, Stats. This
section will also identify circumstances under which an owner or operator of
cropland is required to comply with the cropland performance standards. In this
section, "cropland performance standards" means performance standards in ss.
NR 151.005, 151.02, 151.03, 151.04, 151.07, and 151.075.
(2) ROLE OF
MUNICIPALITIES. The department may rely on municipalities to implement the
procedures and make determinations established in this section.
Note: In most cases, the department will rely
on municipalities to fully implement the cropland performance standards. The
department intends to utilize the procedures in this section in cases where a
municipality has requested assistance in implementing and enforcing the
cropland performance standards or in cases where a municipality has failed to
address an incident of noncompliance with the performance standards in a timely
manner. The department recognizes that coordination between local
municipalities, the Department of Agriculture, Trade and Consumer Protection
and other state agencies is needed to achieve statewide compliance with the
performance standards. Accordingly, the department plans on working with
counties, the Department of Agriculture, Trade and Consumer Protection and
other interested partners to develop a detailed intergovernmental strategy for
achieving compliance with the performance standards that recognizes the
procedures in these rules, state basin plans and the priorities established in
land and water conservation plans.
Note: The department implementation and
enforcement procedures for livestock performance standards relating to manure
management are included in s.
NR 151.095 and ch. NR 243.
(3) LANDOWNER AND OPERATOR REQUIREMENTS.
(a)
Introduction. This
section identifies compliance requirements for landowners and operators based
on whether the cropland is existing or new and whether cost sharing is required
and made available to the landowner or operator.
(b)
General requirements. If
any cropland is meeting a cropland performance standard on or after the
effective date of the standard, the cropland performance standard shall
continue to be met by the existing landowner or operator, heirs or subsequent
owners or operators of the cropland. If a landowner or operator alters or
changes the management of the cropland in a manner that results in
noncompliance with the performance standard, the landowner or operator shall
bring the cropland back into compliance, regardless of whether cost-sharing is
made available. This paragraph does not apply to croplands completing
enrollment determined to be existing under sub. (4) (b) 2.
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.
(c)
Existing cropland requirements.
1. A landowner or operator of an existing
cropland, defined under sub. (4) (b), shall comply with a cropland performance
standard if all of the following have been done by the department:
a. Except as provided in subds. 2. and 3., a
determination is made that cost sharing has been made available in accordance
with sub. (4) (d) on or after the effective date of the cropland performance
standard.
b. The landowner or
operator has been notified in accordance with sub. (5) or (6).
2. A landowner or operator of
existing cropland, defined under sub. (4) (b), shall comply with a cropland
performance standard, regardless of whether cost sharing is available, in
situations where the best management practices and other corrective measures
needed to meet the performance standards do not involve eligible
costs.
3. A landowner or operator
of an existing cropland that voluntarily proposes to construct or reconstruct a
manure storage system shall comply with s.
NR 151.07,
regardless of whether cost sharing is made available, if the nutrient
management plan is required pursuant to a local permit for the manure storage
system.
Note: Although the requirement for the
nutrient management plan in this subd. 3 is tied to construction of a new
manure storage system, the department intends to implement the nutrient
management standard through s. NR 151.09 rather than through s.
NR 151.095.
(d)
New cropland
requirements. A landowner or operator of a new cropland, defined under
sub. (4) (b), shall comply with the cropland performance standards, regardless
of whether cost sharing is available.
Note: Under s.
281.16(3) (e), Stats., a landowner or operator may not
be required by the state or a municipality through an ordinance to bring
existing croplands into compliance with the cropland performance standards,
technical standards or conservation practices unless cost-sharing is available
in accordance with this section.
(4) DEPARTMENT DETERMINATIONS.
(a)
Scope of determinations.
If croplands are not in compliance with a cropland performance standard, the
department shall make determinations in accordance with the procedures and
criteria in this subsection.
(b)
Cropland status. The department shall classify non-complying
croplands 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:
1. An existing cropland is one that meets all
of the following criteria:
a. The cropland
was being cropped as of the effective date of the standard.
b. The cropland is not in compliance with a
cropland performance standard in this subchapter as of the effective date of
the standard. The reason for non-compliance of the cropland may not be failure
of the landowner or operator to maintain an installed best management practice
in accordance with a cost-share agreement or contract.
2. An existing cropland also includes land
enrolled on October 1, 2002, in the conservation reserve or conservation
reserve enhancement program administered by the U.S. department of agriculture.
This subdivision does not apply to croplands re-enrolled after October 1,
2002.
3. A new cropland is one that
does not meet the definition under subd. 1. or 2., including:
a. Land without a previous history of
cropping that is converted to cropland after the effective date of the
standard. "Without a previous history of cropping" means land where crops have
not been grown and harvested for agricultural purposes in the last 10 years
prior to the conversion to cropland.
b. Cropland that is in existence and in
compliance with a performance standard on or after the effective date of the
standard and that undergoes a change in a cropland practice that results in
noncompliance with the performance standards.
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.
4. Change in ownership may not be used as the
sole basis for determining whether a cropland is existing or new for purposes
of administering this subsection.
(c)
Eligible costs.
1. If cost sharing is required to be made
available under sub. (3) (c), the department shall determine the total cost of
best management practices and corrective measures needed to bring a cropland
into compliance with performance standards and shall determine which of those
costs are eligible for cost-sharing for the purposes of administering this
section and s.
281.16(3) (e), Stats.
2. The cost-share eligibility provisions
identified in chs. NR 153 and 154 shall be used in identifying eligible costs
for installation of best management practices and corrective
measures.
3. Eligible technical
assistance costs include best management practice planning, design,
installation supervision, and installation certification.
4. If cost sharing is provided by DATCP or
the department, the corrective measures shall be implemented in accordance with
the BMPs and technical standards specified in ch. NR 154 or subch. VIII of ch.
ATCP 50.
Note: Under chs. NR 153 and 154, eligible
costs typically include capital costs and significant other expenses, including
design costs, incurred by the landowner or operator. Eligible costs do not
include the value or amount of time spent by a landowner or operator in making
management changes.
(d)
Determination of cost-share
availability.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. (3), the department shall make a determination as
to whether cost sharing has been made available on or after the effective date
of the cropland standard to cover the eligible costs for a landowner or
operator to comply with the cropland performance standard.
2. Cost sharing under s.
281.65,
Stats., shall be considered available when all of the following have been met:
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. (5), including any required
offer of cost sharing, has been issued by the department or a municipality; or
the department directly offers cost share assistance and issues a notice under
sub. (5).
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 for croplands needed to meet
a cropland performance standard.
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.
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.
Note: Under s.
281.16(3) (e), 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 must defer
to DATCP's definition of cost-share
availability.
(5) NOTIFICATION REQUIREMENTS AND COMPLIANCE
PERIODS FOR EXISTING CROPLANDS WHEN COST-SHARING IS REQUIRED.
(a)
Landowner notification.
1. The department shall notify a landowner or
operator in writing of the determinations made under sub. (4) and
implementation requirements for existing croplands where cost sharing is
required for compliance.
2. The
notice shall be sent certified mail, return receipt requested or personal
delivery.
3. The following
information shall be included in the notice:
a. A description of the cropland performance
standard being violated.
b. The
cropland status determination made in accordance with sub. (4) (b).
c. The determination made in accordance with
sub. (4) (c) as to which best management practices or other corrective measures
that are needed to comply with cropland performance standards are eligible for
cost sharing.
Note: Some best management practices required
to comply with cropland performance standards involve no eligible cost to the
landowner or operator and are not eligible for cost sharing.
d. The determination made in accordance with
sub. (4) (d) that cost sharing is available for eligible costs to achieve
compliance with cropland performance standards, including a written offer of
cost sharing.
e. An offer to
provide or coordinate the provision of technical assistance.
f. A compliance period for meeting the
cropland performance standard.
g.
An explanation of the possible consequences if the landowner or operator fails
to comply with provisions of the notice, including enforcement or loss of cost
sharing, or both.
(b)
Compliance schedule.
1. A landowner or operator that receives the
notice under par. (a) shall install or implement best management practices and
corrective measures to meet the performance standards in the time period
specified in the notice, if cost sharing is available in accordance with sub.
(4) (d) 2.
2. The compliance period
identified in the notice in par. (a) shall be determined by the department as
follows:
a. The compliance period shall begin
on the postmark date of the notice or the date of personal delivery.
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.
c. The length of
the compliance period may be less than 60 days if the site is an imminent
threat to public health, fish and aquatic life.
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 landowner or operator. A compliance
period may not be extended to exceed 4 years in total.
3. Once a landowner or operator achieves
compliance with a cropland performance standard, compliance with the standard
shall be maintained by the existing landowner or operator and heirs or
subsequent owners, regardless of cost sharing.
(6) NOTIFICATION REQUIREMENTS AND COMPLIANCE
PERIODS FOR EXISTING CROPLANDS IN SITUATIONS WHEN NO ELIGIBLE COSTS ARE
INVOLVED.
(a)
Landowner
notification.
1. The department
shall notify a non-complying landowner or operator of existing croplands of the
determinations made under sub. (4).
2. The notice shall be sent certified mail,
return receipt requested, or via personal delivery.
3. The following information shall be
included in the notice:
a. A description of
the cropland performance standard that is being violated and the determination
that corrective measures do not involve eligible costs under sub. (4)
(c).
b. The cropland status
determination made in accordance with sub. (4) (b).
c. A compliance period for achieving the
cropland performance standard. The compliance period may not exceed the time
limits in par. (b).
d. An
explanation of the consequences if the landowner or operator fails to comply
with provisions of the notice.
(b)
Compliance period.
1. The compliance period for existing
croplands where best management practices and other corrective measures do not
involve eligible costs shall be in accordance with the following:
a. The compliance period shall begin on the
postmark date of the notice or the date of personal delivery.
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.
c. The length of
the compliance period may be less than 60 days if the site is an imminent
threat to public health, fish and aquatic life.
2. Once compliance with a cropland
performance standard is attained, compliance with the standard shall be
maintained by the existing landowner or operator and heirs or subsequent
owners.
(c)
Combined notices. The department may meet multiple
notification requirements under par. (a), sub. (5) and s.
NR 151.095 within any single notice issued to a landowner
or operator.
(7)
ENFORCEMENT.
(a)
Authority to
initiate enforcement. The department may take enforcement action
pursuant to s.
281.98, Stats., or
other appropriate actions, against the landowner or operator of a cropland for
failing to comply with the cropland performance standards in this subchapter or
approved variances to the cropland performance standards provided by the
department under s.
NR 151.097.
(b)
Enforcement following notice and
direct enforcement. The department shall provide notice to the
landowner or operator of an existing cropland in accordance with subs. (5) and
(6) prior to the department initiating enforcement action under s.
281.98, Stats., except
in cases of repeated mismanagement. In such cases, the department may pursue
direct enforcement under s.
281.98, Stats., for the
second and any subsequent offenses.
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 cropland performance standard. Pursuant to other statutory
authority, the department may take direct enforcement action without cost
sharing against a crop producer for willful or intentional acts or other
actions by a landowner or operator that pose an immediate or imminent threat to
human health or the environment.
Note: An owner or operator of a new cropland
is required to meet the cropland performance standards by incorporating
necessary management measures at the time the new cropland is created. This
requirement shall be met regardless of cost sharing. The department may pursue
direct enforcement under s.
281.98, Stats., against
landowners or operators of new croplands not in
compliance.
(8)
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 section:
(a) Contacting a landowner or operator to
investigate compliance with cropland performance standards.
(b) Issuing a notice under sub. (5) or (6) to
a landowner or operator.
(c) Taking
enforcement action under s.
281.98, Stats., against
a landowner or operator for failing to comply with cropland performance
standards in this subchapter.
(d)
Notification is not required if the site is an imminent threat to public health
or fish and aquatic life.
