Section 243.24. Department discharge determination and NODs.

  Unless based on information provided as part of a WPDES permit application submitted pursuant to s. NR 243.26 (1) , no determination may be made by the department that an unacceptable practice exists at an operation until there has been an onsite investigation by the department or a federal or state agency or governmental unit.

(1)   Categories of unacceptable practices. The department shall identify the categories of discharge associated with unacceptable practices pursuant to the following criteria:

(a) Category I. A category I unacceptable practice is a practice or facility at an animal feeding operation that causes a point source discharge of pollutants to navigable waters by either of following means:

1. Pollutants are discharged into navigable waters through a man-made ditch, flushing system or other similar man-made device.

2. Pollutants are discharged into navigable waters that originate outside of the operation and pass over, across or through the operation or otherwise come into direct contact with the animals confined at the operation.

(b) Category II. A category II unacceptable practice is a practice or facility at an animal feeding operation that causes a discharge of pollutants to waters of the state that is the result of an owner's or operator's failure to comply with a livestock performance standard or prohibition in ss. NR 151.05 to 151.08 . For Category II discharges, waters of the state has the meaning specified under s. 281.01 (18) , Stats.

(c) Category III. A category III unacceptable practice is a practice or facility at an animal feeding operation that caused a discharge of pollutants to waters of the state and that is not described in par. (a) or (b) .

(2)   Coordination with governmental units. Unless an unacceptable practice is an imminent threat to public health or fish and aquatic life, the department shall notify the appropriate governmental unit prior to taking any of the following actions:

(a) Contacting an owner or operator of an animal feeding operation under the procedures in this subchapter to investigate a discharge from an unacceptable practice.

(b) Issuing an NOD for a category II unacceptable practice.

(c) Taking enforcement action under s. 281.98 , Stats., against an owner or operator of an animal feeding operation for failing to comply with a livestock performance standard or prohibition.

(3)   Department action. If the department determines that an unacceptable practice exists at an operation based on its own onsite investigation, an investigation conducted by a federal or state agency or governmental unit, or information provided as part of WPDES permit application, the department may take any of the following actions:

(a) For all unacceptable practices.

1. The department may coordinate with a designated governmental unit to address the unacceptable practice and provide assistance to the owner or operator. This contact shall be made as soon as possible after the determination that an unacceptable practice exists at an operation to maximize opportunities for the governmental unit to provide assistance to the owner or operator.

2. The department may issue a notice of intent to issue an NOD.

(b) Category I unacceptable practices. For category I unacceptable practices, the department may take any of the following actions:

1. Issue an NOD to the owner or operator of the animal feeding operation to address the unacceptable practices.

2. Send the owner or operator a permit application if the owner or operator has not filed a WPDES permit application pursuant to s. NR 243.26 .

3. Designate the operation as a CAFO under s. NR 243.26 (2) .

4. Take direct enforcement action.

(c) Category II unacceptable practices. For category II unacceptable practices, the department may take any of the following actions:

1. Issue an NOD if requested by a governmental unit or if a governmental unit is not addressing a facility's noncompliance with livestock performance standards or prohibitions in a manner consistent with the procedures established in ch. NR 151 .

2. Follow the procedures outlined in s. NR 151.095 .

3. Designate the operation as a medium or small CAFO under s. NR 243.26 (2) .

(d) Category III unacceptable practices. For category III unacceptable practices, the department may take any of the following actions:

1. Issue an NOD to the owner or operator.

2. Take direct enforcement action.

3. Designate the operation as a medium or small CAFO under s. NR 243.26 (2) .

(4)   Notice of discharge.

(a) If the department issues an NOD to an owner or operator of an animal feeding operation, it shall be sent certified mail, return receipt requested or personal delivery.

(b) The department shall include all of the following information in an NOD:

1. A summary of the results of the onsite investigation used to determine that unacceptable practices exist at an operation. The summary shall include a determination of the category of the unacceptable practice that exists at the operation. The department shall provide a copy of the summary to the animal feeding operation and appropriate governmental unit.

2. One or more suggested corrective measures for the unacceptable practice identified in the summary report. The department may amend an NOD at any time to reflect changes to suggested corrective measures based on further evaluation and planning associated with addressing the unacceptable practice.

3. A list of known governmental or private services that may be available to provide technical or financial assistance.

4. For category II unacceptable practices, the NOD shall contain determinations consistent with s. NR 151.095 , except that the length of the compliance period shall be determined in accordance with subd. 5. Determinations required under s. NR 151.095 may be included as part of the NOD or as amendments to the NOD.

5. A reasonable compliance period for implementing necessary corrective measures shall be specified in the NOD. The compliance period identified in the NOD shall be determined by the department in accordance with the following:

a. The length of the compliance period shall be from 60 days to 2 years unless otherwise provided for in this paragraph.

b. 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.

c. The compliance period may not be more than 2 years unless an alternative compliance period has been mutually agreed upon by the department and the owner or operator of the animal feeding operation.

d. For existing practices or facilities where corrective measures require cost sharing in accordance with s. NR 151.095 and where cost sharing has not previously been made available, the compliance period specified in an NOD shall begin on the date that cost share dollars are available pursuant to s. NR 151.095 (5) (d) .

e. For all other practices or facilities, the compliance period specified in the NOD shall begin on the date of the NOD, regardless of the availability of cost sharing.

6. An explanation of the possible consequences if the owner or operator fails to comply with the provisions of the notice, including enforcement or loss of cost sharing, or both.

(c) The department may request that proposed corrective measures be submitted to the department for review prior to implementing the corrective measures.

(d) The department may require that accepted management practices be superseded by additional design requirements or practices if they are necessary for water quality protection.

(e) The department may require that the owner or operator of the animal feeding operation, or a designee, notify the department as to the status of implementing the corrective measures prior to the end of the compliance period.

History: CR 05-075 : cr. Register April 2007 No. 616 , eff. 7-1-07.

Note

In general, the department considers factors such as the degree of harm to a waterbody and the level of mismanagement or negligence by an owner or operator when deciding whether to take direct enforcement action. Microsoft Windows NT 6.1.7601 Service Pack 1 In most cases, the department will rely on governmental units to fully implement the livestock performance standards and prohibitions and address impacts to water quality from category II unacceptable practices. The department intends to issue NODs in accordance with this section in cases where a governmental unit has requested assistance in implementing and enforcing the performance standards or prohibitions or in cases where a governmental unit has failed to appropriately address unacceptable practices at animal feeding operations in a timely manner. The department recognizes that coordination between governmental units, 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 has worked 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 this subchapter, state basin plans and the priorities established in land and water conservation plans. Microsoft Windows NT 6.1.7601 Service Pack 1 Section NR 151.095 contains the criteria and establishes the procedures for determining when cost sharing is required for eligible costs associated with corrective measures and when cost sharing is considered to have been made available. Cost sharing is not required for new facilities and for practices that do not involve eligible costs, such as moving a manure pile. Cost sharing for eligible costs may be available under ch. NR 120 or 153 . Microsoft Windows NT 6.1.7601 Service Pack 1 Cost-share dollars may be offered as part of an NOD or may be included in an amendment to an NOD. Microsoft Windows NT 6.1.7601 Service Pack 1