January 2008

Working with Landowners to Implement

Agricultural Performance Standards & Prohibitions

Under Chapter NR 151, Wis. Adm. Code

John Pfender, WDNR

Table of Contents

Introduction………………………………………………………2

Overview………………………………………………………2

Status Letters………………………………………………3

Notification Letters …………………………………………3

Satisfaction Letters …………………………………………4

Notification Flow Chart ……………………………………5

Letter Types: Use and Content …………………………………….6

Status Letter Type A ……………………………………….6

Status Letter Type B ……………………………………….7

Notification Letter Type C …………………………………8

Notification Letter Type D …………………………………9

Satisfaction Letter Type E ………………………………….10

Additional Information ……………………………………………..10

Letter Templates …………………………………………………….12

Template: Letter Type A ……………………………………12 Template: Letter Type B …………………………………… 14 Template: Letter Type C …………………………………… 15

Template: Letter Type D ……………………………………20

Template: Letter Type E ……………………………………24

Working with Landowners to Implement

Agricultural Performance Standards & Prohibitions

Under Chapter NR 151, Wis. Adm. Code

introduction

This document shows the steps involved in documenting and communicating critical information to farmers concerning their compliance status with agricultural performance standards and prohibitions and required management actions. It addresses primarily “existing” cropland practices as defined under NR 151.09(4)(b) and “existing” livestock facilities as defined under NR 151.095(5)(b). Modifications to this process will be needed when addressing non-compliance with performance standards and prohibitions for “new” practices and facilities. The main difference is that there are no formal noticing requirements under Chapter NR 151 for situations where “new” practices and facilities do not meet performance standards and prohibitions. In these situations, the farmer can be required through stepped enforcement to comply immediately without cost sharing.

This document identifies when and how critical information concerning compliance with performance standards and prohibitions should be formally transmitted in writing to the landowner. This will assure that the proper records are created to competently administer the state law for achieving and maintaining compliance. This document assumes that the Implementation Strategy for NR 151 Agricultural Performance Standards and Prohibitionsis being implemented. That implementation strategy can be downloaded from:

Overview

There are five points in the communication strategy when letters to the landowner are either required or strongly advised. Figure 1 charts the communication process and shows when each of the five pieces of written correspondence should be used. In the figure, squares represent action items (includes sending letters), hexagons pose questions and circles are control points (yes, no). For reference, the action items (squares) are labeled with numbers (1-9).

The text of this document explains what should be communicated at each point in the communication process. Sample letters are attached. Throughout, the phrase “practices and facilities” means cropland practices and livestock facilities.”These letters may be modified to suit the sensibilities of local staff and context-specific facts of the situation being addressed. However, care must be taken to assure that the critical content identified for each letter is maintained. This is especially true for formal notices issued under ss. NR 151.09 and NR 151.095. These are presented in this document as Notification Letters C & D. These notices must contain specific information to be valid.

The correspondence letters can be broken into three general categories: status letters, notification letters and satisfaction letters. These are described below.

Status Letters. This category includes Letters A & B. The status letter is typically used as a cover letter to the detailed compliance status report. Although status letters are not legally required under s. NR 151.09 or NR 151.095, their use is included in the Implementation Strategy for NR 151 Agricultural Performance Standards and Prohibitionsand as such are highly recommended.

A status letter provides the landowner with an interpretation of the compliance status report for each parcel on the farm. The letter identifies general landowner responsibilities relating to achieving and maintaining compliance.These letters are informational only and are not the appropriate vehicle for establishing enforceable compliance requirements for “existing” practices and facilities. (Note: Enforceable compliance requirements for “existing” practices and facilities must be conveyed to the landowner in a notice meeting the requirements of s. NR 151.09 or NR 151.095.) They are the appropriate vehicle for informing the landowner of requirements to maintain in perpetuity compliance that has been achieved, and to be in compliance immediately for all “new” practices and facilities.

There are two types of letters in this category.Letter Type A (see Figure 1, #3) covers situations where only some of the practices and facilities on the farm are in compliance. This will probably be the letter that fits most situations in the near future. Letter Type B (see Figure 1, #2 and #9) is used when the entire farm has achieved compliance with all applicable standards and prohibitions on all parcels and a comprehensive letter of “closure” is desired.

Notification Letters. This category includes Letter Types C & D. These letters are used to make formal notification under ss. NR 151.09(5), NR 151.09(6), NR 151.095(6) and NR 151.095(7)1,2,3. Letter Type C (see Figure 1, #7) is used to require compliance for “existing” practices and facilities when cost sharing is required. The offer of cost share must be “on the table” when the notice is issued. This letter can not be issued based on a cost-share offer that was made in the past but that is no longer available. A notification letter sets the expectation that enforcement will be initiated should the conditions of the letter be violated.

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  1. Prior to enforcement under ch. 281, Stats., the notices referenced in ss. NR 151.09(5), NR 151.09(6), NR 151.095(6) and NR 151.095(7) must be issued by a governmental unit (including county) or DNR to an owner of an existing, non-complying cropland practice or livestock facility if:
  • DNR funds are used as an offer of cost-share assistance to achieve compliance with performance standards and prohibitions in NR 151 or local ordinances, or
  • DNR is expected to take final enforcement steps, regardless of funding source. In order for DNR to refer a case to the state’s Attorney General for enforcement, a notice must have been issued, even if the corrective measures do not involve eligible costs.

2.The Chapter NR 151 notice is not required prior to enforcement under local ordinances against an existing cropland practice or livestock facility if either 1) a governmental unit (including county) offers only non-DNR funds for cost-share assistance or 2) the county intends to enforce under its local ordinance and the corrective measures do not involve eligible costs.

3.ATCP 50.12(2)(h) requires regulatory notification procedures be included in the county Land and Water Resources Management Plan.

Letter Type D (see Figure 1, #5) is used to require compliance for “existing” practices and facilities when cost sharing is not required. Letters Types C and D should be referred to “NR 151 Notification Letters”.(Note: To avoid confusion, these notification letters should not be referred to as “Notices of Non-compliance”, or NONs. This is because the term “Notice of Non-compliance” is used elsewhere in DNR enforcement protocols and has a slightly different meaning.)

Figure 1 has two points in the decision-making and communication process where the question is asked: “Should NR 151 Notice be issued?” At both of these junctures, a NR 151 notice could either be issued right away, or delayed and only issued if the landowner fails to comply voluntarily. Staff may be reluctant to issue the NR 151 notice right away because of a belief that the landowner would comply voluntarily but may become alienated and refuse to cooperate if a NR 151 notice is issued. Although the staff may be able to finesse the situation without ever issuing a notice, it is very important to establish an informal deadline by which a formal notice will be issued if the landowner does not come into compliance. This informal schedule should allow enough time to issue a notice while the cost sharing is still available. This is because the offer of cost sharing must be on the table throughout the compliance schedule identified in the notice. Regardless, it is also advisable to include a deadline in the notice for accepting the cost-share offer and in fact some agencies that provide the cost-share funds may require this.

Remember that regardless of cost-share history or whether a notice was issued, once a cropland practice or livestock facility is brought into compliance with performance standards and prohibitions the compliance must be maintained in perpetuity.

Satisfaction Letters. This category includes Letter Type E (see Figure 1, #9). This letter is used to document satisfaction of the requirements set forth in a notice issued under ss. NR 151.09 and NR 151.095. Letter Type E is not legally required, but is consistent with the Implementation Strategy for NR 151 Agricultural Performance Standards and Prohibitionsand as such is highly recommended.

Letter Types: Use and Content

Status Letter Type A

Use. This letter interprets the Compliance Status Report (CSR) and is used for all such interpretations except when the farm has achieved full compliance (For full farm compliance, see Status Letter Type B). This includes situations when it is known that either all or some of the practices and facilities are out of compliance or when the status of some practices and facilities is not known and more investigation is needed.

Origin. This letter is addressed to the landowner and operator. The County would typically sign and send the letter. DNR could co-sign the letter if requested, although DNR would have to concur with the status determinations before signing.

Content. At a minimum, the letter should include the following. A suggested letter template is included in the appendix.

  • Reference to the Compliance Status Report (CSR) Document. (The CSR document contains detailed information for each practice and facility. The CSR will include the compliance status and the basis for the compliance determination, such as on-site assessment, or records review. Records review includes such things as local permit history, cost-share agreementimplementation history or farmland preservation certification statements.)
  • Identify which governmental unit or agency made the status determinations.
  • Statement as to whether additional assessments are needed for the farm, or if the assessment work has been completed.
  • Statement that practices and facilities shown on the CSR to be “existing” and “in compliance” must be maintained in perpetuity regardless of future cost-sharing. (Two exceptions are:
  • Fields enrolled in CRP or CREP on October 1, 2002 are entitled to additional cost sharing to stay in compliance after the enrollment period ends.
  • Fields re-evaluated in the future using alternative models and found to be out of compliance using the new model may be entitled to additional cost sharing to keep the fields in compliance. This would cover re-evaluations using RUSLE2.
  • Statement that practices and facilities shown on the CSR to be “existing” and “not in compliance” must eventually be brought into compliance to protect water quality. Additional information including the needed management changes, implementation cost, cost-share offer (if required), implementation deadline and appeals process relating to these practices and facilities will be sent in a separate letter at the appropriate time. Clarify that the landowner does not need to wait for cost sharing, but once a practice or facility that is not in compliance is brought into compliance, compliance must be maintained regardless of future cost sharing.
  • Statement that practices and facilities shown on the CSR to be “new” must achieve compliance immediately regardless of cost share.
  • Reminder that as additional performance standards and prohibitions become effective, the farm is subject to reassessment.
  • Offer the opportunity for the landowner and operator to discuss the compliance determinations with County staff if there are questions, concerns or disagreements. Do not include a reference to the state appeals process as this only applies to formal notices issued under s. NR 151.09 or NR 151.095.

Status Letter Type B

Use. This letter interprets the Compliance Status Report (CSR) and informs the landowner and land operator that the entire farm operation is determined to be in compliance with the performance standards and prohibitions.

Origin. This letter is addressed to the landowner and operator. The County would typically sign and send the letter. DNR could co-sign the letter if requested, although DNR would have to concur with the status determinations before signing.

Content. At a minimum, the letter should include the following. A suggested letter template is included in the appendix.

  • Reference to the Compliance Status Report (CSR) Document. (The CSR document contains detailed information for each practice and facility. The CSR will include the compliance status and the basis for the compliance determination, such as on-site assessment, or records review. Records review includes such things as local permit history, cost-share agreementhistory or farmland preservation certification statements.)
  • Statement that all cropping practices and livestock facilities on the farm were determined to be in compliance with applicable performance standards and prohibitions. Identify the agency making the determinations.
  • Statement that if the compliance determination is based on contractual operation and maintenance periods for best management practices, such as those included on cost-share agreements, there is an assumption that the practices are being maintained.
  • Statement that practices and facilities shown on the CSR to be “existing” and “in compliance” must be maintained in perpetuity regardless of future cost-sharing. (Two exceptions are:
  • Fields enrolled in CRP or CREP on October 1, 2002 are entitled to additional cost sharing to stay in compliance after the enrollment period ends.
  • Fields re-evaluated in the future using alternative models and found to be out of compliance using the new model may be entitled to additional cost sharing to keep the fields in compliance. This would cover re-evaluations using RUSLE2.
  • Reminder that any new cropland practices or livestock operations must meet performance standards and prohibitions.
  • Reminder that as additional performance standards and prohibitions become effective, the farm is subject to reassessment.
  • Offer the opportunity for the landowner and operator to discuss the compliance determinations with County staff if there are questions, concerns or disagreements. Do not include a reference to the state appeals process as this only applies to formal notices issued under s. NR 151.09 or NR 151.095.

Notification Letter Type C

Use. This is the formal notification letter required under ss. NR 151.09(5) and NR 151.095(6) for situations when cost-share must be made available to achieve compliance with performance standards (See footnote at bottom of page 2). This letter may be combined with letter Type D as long as it is very clear where cost-sharing does and does not apply.

Chapter NR 151 establishes notice requirements. Notices are required if DNR funds are used. Notices are also required if s. 281.98, Stats., will be used as the enforcement authority. This applies whether the s. 281.98 authority is being used by DNR or the CountyDistrict Attorney. For other situations, such as when a local ordinance is being used as the enforcement authority and non-DNR funds are being used for the cost-share offer, a notice is not required under Chapter NR 151. It is probably a good idea, however, to include a formal letter of some sort and in fact such communication may be required under the local ordinance. In these cases, follow the local laws regarding content. It is also important to note that soil and water resource management plans prepared under ATCP 50 are required to include notification requirements if the county has regulations that address performance standards and prohibitions.

Origin. This letter is addressed to the landowner and operator. The letter may be signed by DNR, the County, or co-signed by both. If the DNR concurs with the status determinations, then the letter can come from DNR and the state of Wisconsin appeals language would be inserted. If the DNR does not concur with the status determinations, or if the standards are being enforced only under a local ordinance, then the letter will come from the county and only the county appeals language would be used. If there is the potential for enforcement under both state and local laws and DNR concurs with the status determinations, the letter can come from both the DNR and the county. In this case, both appeals clauses should be included in the notice. Should a case actually be prepared for enforcement, double-jeopardy laws may require which authority will be used to pursue enforcement.

Section 281.16(3)(e) of the state statutes establishes agency authority for establishing what has to be included in the cost-share offer. These are the cost-share availability criteria mention in the statute.The relevant criteria apply in all cases when a state or local unit of government uses regulatory authority to enforce the performance standards and prohibitions.

DNR establishes the cost sharing criteria for sources of funds administered by DNR under the Nonpoint Source Program statute, s. 281.65, Stats. This includes primarily TRM grants and NOD grants. DNR uses its cost sharing rules under NR 153 and NR 154 to define what must be included in the cost share offer. DATCP establishes cost sharing criteria for all other state, federal and local (including funds from NGOs) funding sources. DATCP has established these criteria under ATCP 50.DNR and DATCP cost share criteria are very similar, but not identical. Key differences are that DATCP includes funding for land taken out of production and for routine maintenance of management practices.

If DNR submits the notice and non-DNR funds are used, then the cost-share availability finding must be consistent with ch. ATCP 50. DNR and DATCP have established an interagency review process so that DNR will be sure that the cost share offers in the notices it issues will meet the requirements of ATCP 50 in those cases when non DNR funds are being used. These interagency procedures are available from either the DNR NR 151 Implementation Coordinator or DATCP.

(Note: If a county is using local enforcement authority and non-DNR funds are used, the notice is not needed at all, but availability determinations must still be consistent with ATCP 50.)