1. (1) Local regulations that exceed state standards; approval required.

   1. (a) Except as provided in par. (b), no local regulation may require nutrient management or other conservation practices for livestock operations that exceed the practices required under s. ATCP 50.04 unless the department or DNR approves those requirements under this section or s. NR 151.096.

      Note: See s. 92.15, Stats. A person adversely affected by a local livestock regulation may oppose its adoption at the local level. The person may also challenge a local regulation in court if the person believes that the local governmental unit has violated par. (a) or s. 92.15, Stats. A local governmental unit is responsible for analyzing the legal adequacy of its regulations, and may exercise its own legal judgment in deciding whether to seek state approval under this section.

      A local permit requirement does not, by itself, violate par. (a). But permit conditions codified in a local regulation must comply with par. (a). In the case of local permit conditions for new and expanding livestock operations, local governmental units must codify more stringent regulation and meet other requirements of s. ATCP 51.10 (3). If a local governmental unit routinely requires permit holders to comply with uncodified conservation requirements that exceed state standards, those uncodified requirements may be subject to court challenge under s. 92.15, Stats., and par. (a) as de facto regulatory enactments. A local governmental unit may forestall a legal challenge by codifying standard permit conditions and obtaining any necessary state approval under this section. The department will review codified regulations under sub. (2), but will not review individual permits or uncodified permit conditions.

   2. (b) Paragraph (a) does not apply to any of the following:

      1. 1. Local regulation of cropping practices that are not directly related to a livestock operation.
      2. 2. Local regulations enacted prior to October 1, 2002. This does not limit the application of s. 92.15, Stats., to those local regulations.

2. (2) Department approval.

   1. (a) To obtain department approval under sub. (1) (a) for an existing or proposed regulation, the head of the local governmental unit or the chair of the local governmental unit’s governing board shall do all the following:

      1. 1. Submit a copy of the regulation to the department and DNR.
      2. 2. Identify the provisions of the regulation for which the local governmental unit seeks approval.
      3. 3. Submit documentation showing why the identified provisions are needed to achieve compliance with water quality standards, and why compliance cannot be achieved by less stringent provisions.
   2. (b) Within 90 days after the department receives a complete application under par. (a), the department shall grant or deny the requested approval. Before the department grants or denies the application, the department shall solicit a recommendation from DNR. The department shall issue its decision in writing, and shall state the reasons for its decision.
   3. (c) The department may approve a provision identified under par. (a) 2. if the department finds that the provision is necessary to achieve compliance with water quality standards under s. 281.15, Stats., and that compliance cannot reasonably be achieved by less restrictive means.
   4. (d) The department may not review or approve individual permits or permit conditions under this subsection, except that the department may review standard permit conditions that are codified in a local regulation. The department may approve those codified conditions if they meet the standard for approval under par. (c).

History

History: CR 01-090: cr. Register September 2002 No. 561, eff. 10-1-02.