Section NR 151.095 - Implementation and enforcement procedures for livestock performance standards and prohibitions(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.Wis. Admin. Code Department of Natural Resources NR 151.095
CR 00-027: cr. Register September 2002 No. 561, eff. 10-1-02; CR 09-112: am. (1) (intro.), (5) (b) 2. c., 5., (c) 3., (d) 2. a., c., (6) (b) 2. b., (7) (b) 1. b., (8) (b), r. (6) (a) 3. h., (7) (a) 3. e. Register December 2010 No. 660, eff. 1-1-11.