State of Wisconsin DEPARTMENT OF NATURAL RESOURCES l0l S. Webster Street Scott Walker, Governor Gathy Stepp, Secretary Box7921 Madison Wl Telep hone 608-266 -2621 53707-7921 Toll Free 1-888-936-7463 TTY Access via relay - 7 1 1 lxu _WSCS¡SIH \_ DEPÍ. OF NATUBAL RESOURCES fi88 February 20,2017 F Attorneys John Greene and Paul Kent Stafford Rosenbaum, LLP 222West Washington Avenue, Suite 900 u f ;ÅÈì -f xry ¡, t1 P.O. Box 1784 Madison, WI 53701 Subject: Town of Saratoga Livestock Ordinance Dear Messrs. Greene and Kent: Pursuant to s. 92.15, Wis. Stats., and s. NR 151.096, Wis. Adm. Code, the Town of Saratoga has asked the Department of Natural Resources (Department) to review its Livestock Operation Ordinance. The Town submitted its request for review on December 1,2016. Section 92.15(2), Wis. Stats., allows a local unit of government to enact regulations of livestock operations that are consistent with and do not exceed the performance standards, prohibitions, conservation practices and technical standards under s. 281.16(3), Wis. Stats. The Department and the Department of Agriculture, Trade and Consumer Protection (DATCP) have adopted state performance standards, prohibitions, conservation practices and technical standards as authorized by s. 281.16(3), Wis. Stats. These are in Subchapter II of chapter NR 151, Wis. Adm. Code, and chapter ATCP 50, Wis. Adm. Code. Section 92.15(3)(a), Wis. Stats., applies where a local unit of government enacts regulations of livestock operations that exceed state performance standards, prohibitions, conservation practices and technical standards. Ifa local regulation exceeds state performance standards, prohibitions, conservation practices and technical standards, the local unit of government must demonstrate that the regulations are necessary to achieve water quality standards under s.281.15, Wis. Stats. The Department finds that s. 92.15, Wis. Stats., does not limit the Town of Saratoga Livestock Operation Ordinance submitted on December 1,2016. The reasons for that finding are as follows: Several sections of the Ordinance do not contain any substantive performance standards, prohibitions, conservations practices or technical standards to compare against those adopted by DATCP and the Department under s. 281.16(3), Wis. Stats. These sections of the Ordinance include: Section 1: Introduction; Section 2: Administration; Section 4: Penalties; and Section 5: Effective Date. Only Section 3 contains provisions that require consideration under s.92.15, Wis. Stats. Section 3.1, requires conformance with NRCS Standard 590. Section 3.2 requires conformance with a nutrient management plan if such a plan is required by Department regulations s. NR I51.07 or s. NR 243.14, Wis. Adm. Code. These ordinance sections are allowed by s. 92.15(2), Wis. Stats., because they are consistent with and do not exceed performance standards, prohibitions, conservation practices and technical standards under s. 281.16(3), \Mis. Stats dnr.wi.gov wrsconsrn.gov Nøturally wlscoNSIN €9w*" Page2 Section 3.3 requires that the application of manure be done in accordance with any applicable WPDES permit. Section 92.15(3)(a), Wis. Stats., allows a regulation to exceed a performance standard, prohibition, conseryation practice or technical standard under s. 281.16(3), Wis. Stats., where the Department is satisfied that the regulation is necessary to achieve water quality standards. A WPDES permit may contain conditions that exceed the performance standards, prohibitions, conservation practices and technical standards adopted under s. 281.16(3), Wis. Stats. But where a requirement appears in a WPDES permit, the Department has already determined it to be necessary to achieve water quality standards. The requirement to comply with any applicable WPDES permit conditions does not create a standard or requirement beyond what the Department has already required of a farm as necessary to achieve water quality standards. Finally, section 3.4 outlines potential response actions the Town may require if a groundwater standard is exceeded. The Department does not believe this or any other provision of the ordinance creates any performance standards, prohibitions, conservation practices or technical standards that would require Department approval under s. 92.15(3), Wis. Stats. The enforcement provisions in the ordinance are similar to groundwater response actions set forth in ch. NR i40, Wis. Adm. Code., entitled Groundwater Quality. That chapter is promulgated pursuant to ch. 160, Wis. Stats. Department review under s. 92.15(3)(a), Wis. Stats., applies only to a performance standard, prohibition, conservation practice or technical standard under s. 281.16(3), Wis. Stats. Section 3.4 of the Ordinance is beyond that scope. For the reasons stated above, the Department finds that the Livestock Operation Ordinance submitted for its review by the Town of Saratoga may be enacted without Department approval under s. 92.15, Wis. Stats. Sincerely, Mike Gilbertson, DNR MaryAnne Lowndes, DNR Pam Biersach, DNR Jane Landretti, DNR NOTICE OF APPEAL RIGHTS If you believe that you have a right to challenge this decision, you should know that the Wisconsin statutes and adminishative rules establish time periods within which requests to review Department decisions must be filed. For judicial review of a decision pursuant to sections 227.52 and227.53, Wis. Stats., you have 30 days after the decision is mailed, or otherwise served by the Department, to file your petition with the appropriate circuit court and serve the petition on the Department. Such a petition for judicial review must name the Department of Natural Resources as the respondent. To request a contested case hearing pursuant to section 227.42, Wis. Stats., you have 30 days after the decision is mailed, or otherwise served by the Department, to serve a petition for hearing on the Secretary of the Department of Natural Resources. All requests for contested case hearings must be made in accordance with section NR 2.05(5), Wis. Adm. Code, and served on the Secretary in accordance with section NR 2.03, Wis. Adm. Code. The filing ofa request for a contested case hearing does not extend the 30 day period for fîling a petition forjudicial review.