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 livestock performance standards and prohibitions pursuant to ss.
281.16(3) and
281.98, Stats. If a
livestock performance standard is also listed as a cropland performance
standard under s.
NR 151.09, the department may choose the procedures of
either s.
NR 151.09 or this section to obtain compliance with the
standard. This section will also identify circumstances under which an owner or
operator of a livestock facility is required to comply with livestock
performance standards and prohibitions. In this section, "livestock performance
standards and prohibitions" means the performance standards and prohibitions in
ss.
NR 151.005, 151.05, 151.055, 151.06, and 151.08.
Note: The nutrient management standard in s.
NR 151.07
should be implemented through the procedures in s.
NR 151.09.
(2) ROLE OF MUNICIPALITIES. The department
may rely on municipalities to implement the procedures and make determinations
outlined in this section.
Note: In most cases, the department will rely on
municipalities to fully implement the livestock performance standards and
prohibitions. The department intends to utilize the procedures in this section
in cases where a municipality has requested assistance in implementing and
enforcing the performance standards or prohibitions or in cases where a
municipality has failed to address an incident of noncompliance with the
performance standards or prohibitions 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 and
prohibitions. 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 and prohibitions that recognizes the
procedures in these rules, state basin plans and the priorities established in
land and water conservation plans.
Note: Additional implementation and enforcement procedures
for livestock performance standards and prohibitions are in ch. NR 243,
including the procedures for the issuance of a NOD.
(3) EXEMPTIONS. The department may follow the
procedures in ch. NR 243 and is not obligated to follow the procedures and
requirements of this section in the following situations:
(a) If the livestock operation holds a WPDES
permit.
(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:
1. The department has determined that a
livestock facility has a point source discharge under s.
NR 243.24.
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.
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.
(4) LIVESTOCK OWNER AND OPERATOR
REQUIREMENTS.
(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.
(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.
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 livestock facility requirements.
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:
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.
b. The owner or operator of the livestock
facility has been notified in accordance with sub. (6) or (7).
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.
(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.
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.
(5)
DEPARTMENT DETERMINATIONS.
(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.
(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:
1. An existing livestock facility is one that
meets all of the following criteria:
a. The
facility is in existence as of the effective date of the livestock performance
standard or prohibition.
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.
2. A new
livestock operation or facility is one that does not meet the definition under
subd. 1., including:
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.
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.
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.
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.
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.
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.
(c)
Eligible costs.
1. If cost sharing is required to be made
available under sub. (4) (c), the department shall determine the total cost of
best management practices and corrective measures needed to bring a livestock
facility into compliance with a livestock performance standard or prohibition
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 best management practices 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 owner or operator of the livestock operation. Eligible costs do
not include the value or amount of time spent by an owner 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. (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.
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. (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).
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.
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.
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.
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.
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), 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.
(6) NOTIFICATION REQUIREMENTS AND
COMPLIANCE PERIODS FOR EXISTING LIVESTOCK FACILITIES WHEN COST SHARING IS
REQUIRED.
(a)
Owner or operator
notification.
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.
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 livestock performance standard or prohibition being violated.
b. The livestock facility status
determination made in accordance with sub. (5) (b).
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.
Note: Some best management practices required to comply
with a livestock performance standard or prohibition involves no eligible costs
to the owner or operator.
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.
e.
An offer to provide or coordinate the provision of technical
assistance.
f. A compliance period
for meeting the livestock performance standard or prohibition.
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.
(b)
Compliance
period.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.
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 post-mark 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 or 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 owner or operator
of the livestock facility. A compliance period may not be extended to exceed 4
years in total.
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.
(7) NOTIFICATION REQUIREMENTS AND COMPLIANCE
PERIODS FOR EXISTING LIVESTOCK FACILITIES IN SITUATIONS WHEN NO ELIGIBLE COSTS
ARE INVOLVED.
(a)
Owner or operator
notification.1. The department shall
notify a non-complying owner or operator of an existing livestock facility of
the determinations made under sub. (5).
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 livestock performance standard or prohibition that is being violated and
the determination that corrective measures do not involve eligible costs under
sub. (5) (c).
b. The livestock
operation status determination made in accordance with sub. (5) (b).
c. A compliance period for meeting the
livestock performance standard or prohibition. The compliance period may not
exceed the time limits in par. (b).
d. An explanation of the consequences if the
owner or operator fails to comply with provisions of the notice.
(b)
Compliance
period.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;
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, or fish
and aquatic life.
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.
(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.
(8)
ENFORCEMENT.
(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.
(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.
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.
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.
(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:
(a) Contacting an owner or
operator to investigate compliance with livestock performance standards and
prohibitions.
(b) Issuing a notice
under sub. (6) or (7) to an owner or operator.
(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.
(d) Notification is not required if the site
is an imminent threat to public health or fish and aquatic life.
