Section 281.16. Water quality protection; nonpoint sources.

 

(1)   Definitions. In this section:

(a) “Agricultural facility" means a structure associated with an agricultural practice.

(b) “Agricultural practice" means beekeeping; commercial feedlots; dairying; egg production; floriculture; fish or fur farming; grazing; livestock raising; orchards; poultry raising; raising of grain, grass, mint and seed crops; raising of fruits, nuts and berries; sod farming; placing land in federal programs in return for payments in kind; owning land, at least 35 acres of which is enrolled in the conservation reserve program under 16 USC 3831 to 3836 ; and vegetable raising.

(bg) “Artificial water body" has the meaning given in s. 30.19 (1b) (a) .

(br) “Covered municipality" means a municipality that has been issued an individual municipal separate storm sewer permit under s. 283.33 or that is covered by a general municipal separate storm sewer permit under s. 283.35 .

(c) “Livestock operation" means a feedlot or other facility or a pasture where animals are fed, confined, maintained or stabled.

(d) “Navigable waters" has the meaning given in s. 281.31 (2) (d) .

(e) “Nonpoint source" means a facility or practice that causes, or has the potential to cause, nonpoint source water pollution.

(f) “Nonpoint source water pollution" means pollution of waters of the state that does not result from a point source, as defined in s. 283.01 (12) .

(g) “Water quality management area" means any of the following:

1. The area within 1,000 feet from the ordinary high-water mark of navigable waters that consist of a lake, pond or flowage, except that, for a navigable water that is a glacial pothole lake, “water quality management area" means the area within 1,000 feet from the high-water mark of the lake.

2. The area within 300 feet from the ordinary high-water mark of navigable waters that consist of a river or stream.

3. A site that is susceptible to groundwater contamination or that has the potential to be a direct conduit for contamination to reach groundwater.

(h) Notwithstanding s. 281.01 (18) , “waters of the state" has the meaning given in s. 283.01 (20) .

(2)   Nonpoint sources that are not agricultural.

(a) The department shall, by rule, prescribe performance standards for nonpoint sources that are not agricultural facilities or agricultural practices. The performance standards shall be designed to achieve water quality standards by limiting nonpoint source water pollution.

(am)

1. In this paragraph:

c. “New development" means development resulting from the conversion of previously undeveloped land or agricultural land.

d. “Redevelopment" means development that replaces older development.

2. Except as provided in subd. 3. , the department may not enforce a provision in a rule that establishes a date by which a covered municipality must implement methods to achieve a specified reduction in the level of total suspended solids carried by runoff, if the provision requires the covered municipality to achieve a reduction of more than 20 percent. This subdivision does not apply to total suspended solids carried by runoff from new development or redevelopment in a covered municipality.

3. If a covered municipality has achieved, on July 1, 2011, a reduction of more than 20 percent of total suspended solids carried by runoff, the municipality shall, to the maximum extent practicable, maintain all of the best management practices that the municipality has implemented on or before July 1, 2011, to achieve that reduction.

(b) The department shall, by rule, specify a process for the development and dissemination of technical standards to implement the performance standards under par. (a) .

(c) If a covered municipality has obtained all permits required for the construction of a storm water management pond in an artificial water body, whether navigable or nonnavigable, the department may not prohibit the construction of the storm water management pond as a method by which the covered municipality may achieve compliance with performance standards under par. (a) or with an approved total maximum daily load under 33 USC 1313 (d) (1) (C). The department shall give credit to the covered municipality for any pollutant reduction achieved by the storm water management pond in determining compliance with performance standards specified in a permit under s. 283.33 (1) (b) , (c) , (cg) , or (cr) or an approved total maximum daily load under 33 USC 1313 (d).

(3)   Nonpoint sources that are agricultural.

(a) The department of natural resources, in consultation with the department of agriculture, trade and consumer protection, shall promulgate rules prescribing performance standards and prohibitions for agricultural facilities and agricultural practices that are nonpoint sources. The performance standards and prohibitions shall be designed to achieve water quality standards by limiting nonpoint source water pollution. At a minimum, the prohibitions shall include all of the following:

1. That a livestock operation may have no overflow of manure storage structures.

2. That a livestock operation may have no unconfined manure pile in a water quality management area.

3. That a livestock operation may have no direct runoff from a feedlot or stored manure into the waters of the state.

4. That a livestock operation may not allow unlimited access by livestock to waters of the state in a location where high concentrations of animals prevent the maintenance of adequate sod cover.

(b) The department of agriculture, trade and consumer protection, in consultation with the department of natural resources, shall promulgate rules prescribing conservation practices to implement the performance standards and prohibitions under par. (a) and specifying a process for the development and dissemination of technical standards to implement the performance standards and prohibitions under par. (a) .

(c) Using the process specified under par. (b) , the department of agriculture, trade and consumer protection shall develop and disseminate technical standards to implement the performance standards and prohibitions under par. (a) . The department of agriculture, trade and consumer protection shall disseminate alternative technical standards for situations in which more than one method exists to implement the performance standards and prohibitions.

(d) The conservation practices and technical standards under pars. (b) and (c) shall at a minimum cover animal waste management, nutrients applied to the soil and cropland sediment delivery.

(e) An owner or operator of an agricultural facility or practice that is in existence before October 14, 1997, may not be required by this state or a municipality to comply with the performance standards, prohibitions, conservation practices or technical standards under this subsection unless cost-sharing is available, under s. 92.14 or 281.65 or from any other source, to the owner or operator. For the purposes of this paragraph, sub. (4) and ss. 92.07 (2) , 92.15 (4) and 823.08 (3) (c) 2. , the department of natural resources shall promulgate rules that specify criteria for determining whether cost-sharing is available under s. 281.65 and the department of agriculture, trade and consumer protection shall promulgate rules that specify criteria for determining whether cost-sharing is available under s. 92.14 or from any other source. The rules may not allow a determination that cost-sharing is available to meet local regulations under s. 92.07 (2) or 92.15 that are consistent with or that exceed the performance standards, prohibitions, conservation practices or technical standards under this subsection unless the cost-sharing is at least 70 percent of the cost of compliance or is from 70 percent to 90 percent of the cost of compliance in cases of economic hardship, as defined in the rules.

(4)   Application to animal feeding operations. If the department issues a notice of discharge under ch. 283 for an animal feeding operation, the performance standards, prohibitions, conservation practices and technical standards under sub. (3) apply to the animal feeding operation, except that if the animal feeding operation is in existence before October 14, 1997, the performance standards, prohibitions, conservation practices and technical standards only apply if the department determines that cost-sharing is available to the owner or operator of the animal feeding operation under s. 92.14 or 281.65 or from any other source.

1997 a. 27 ; 1999 a. 9 ; 2009 a. 28 ; 2011 a. 32 ; 2015 a. 387 . Cross-reference: See also chs. NR 151 and 243 , Wis. adm. code.