Section 151.09. Implementation and enforcement procedures for cropland performance standards.

 

(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 , and 151.07 .

(2)   Role of municipalities. The department may rely on municipalities to implement the procedures and make determinations established in this section.

(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.

(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.

(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.

(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.

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 .

(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 .

(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.

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.

(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.

CR 00-027 : cr. Register September 2002 No. 561 , eff. 10-1-02; CR 09-112 : am. (1), (4) (b) 2., (c) 3., (d) 2. a., c., (5) (b) 2. b., (6) (b) 1. b., (7) (b), r. (5) (a) 3. h., (6) (a) 3. e. Register December 2010 No. 660 , eff. 1-1-11.

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. Microsoft Windows NT 6.1.7601 Service Pack 1 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 . Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1 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 . Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1 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. Microsoft Windows NT 6.1.7601 Service Pack 1