The statement of scope for this rule, SS 064-16, was approved by the Governor on July 13, 2016, was published in Register No. 727 A3 on July 18, 2016, and was approved by the Natural Resources Board on August 3, 2016. This rule was approved by the Governor on February 14, 2018. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
CREATING RULES
The Wisconsin Natural Resources Board proposes to amend NR 151.09(1); to create NR 151.015 (2), (2m), (7m), (8d), (8h), (8p), (8t), (11m), (13j), (15n), (15w), (17), (18g), (18r), (22m), NR 151.075, and NR 243.143 relating to runoff management and non-point source performance standards and Concentrated Animal Feeding Operation (CAFO) rule revisions to incorporate by reference those performance standards, and affecting small business.
WT-15-16
Analysis Prepared by the Department of Natural Resources
3. Explanation of Agency Authority: Pursuant to s. 281.15, Stats., the department shall set water quality standards to be applicable to the waters of the state. Those water quality standards appear in chs. NR 102 through NR 105, Wis. Adm. Code, for surface water quality standards and ch. NR 140, Wis. Adm. Code, for groundwater quality standards. Pursuant to s. 281.16(3)(a), Stats., the department, in consultation with the department of agriculture, trade and consumer protection (DATCP), is directed to promulgate by rule performance standards and prohibitions for agricultural facilities and agricultural practices that are designed to comply with state surface water quality standards and groundwater quality standards. Chapter NR 151, Wis. Adm. Code, establishes, among other things, performance standards and prohibitions for agricultural facilities and practices designed to achieve water quality standards. Pursuant to ss. 283.11 and 283.31(3), Stats., the department is authorized to promulgate rules to administer the WPDES permit program and to include conditions in WPDES permits that are necessary to achieve compliance with surface water and groundwater quality standards. Pursuant to s. 160.19, Stats., authorizes the department to promulgate rules for facilities, activities and practices affecting groundwater which are designed to minimize the level of substances in groundwater and to maintain compliance with preventive action limits for groundwater standards to the extent technically and economically feasible. Section 160.19(4), Stats., directs the agency to review and revise its rules, if necessary, to achieve the objectives of s. 160(19)(2) and (3), Stats., regarding compliance with preventive action limits and enforcement standards. Pursuant to s. 227.11(2)(a), Stats., the department has general authority to promulgate rules to administer the specific statutory authority granted in chs. 281 and 283, Stats. 4. Related Statutes or Rules: Section NR 151.004, Wis. Adm. Code, authorizes the department to promulgate targeted performance standards if statewide performance standards and prohibitions are insufficient to achieve surface water and groundwater quality standards in the defined targeted areas and targeted performance standards would attain surface water and groundwater quality standards in those areas. Section NR 151.002(33), Wis. Adm. Code, defines a “performance standard” as a narrative or measurable number specifying the minimum acceptable outcome for a facility or practice. Section NR 151.002(44), Wis. Adm. Code, defines “targeted performance standard” as a performance standard that will apply in a specific area, where additional practices beyond those contained in ch. NR 151 are necessary to meet water quality standards. The department has found that in Silurian bedrock areas of Wisconsin, water quality standards or groundwater standards will not be attained using statewide performance standards and prohibitions but the implementation of targeted performance standards would attain water quality standards or groundwater standards. The proposed rules contain targeted performance standards.
Pursuant to s. 281.16(3), Stats., DATCP shall develop or specify the best management practices, conservation practices or technical standards used to demonstrate compliance with a performance standard developed under s. NR 151.004, Wis. Adm. Code. Section NR 151.002(45), defines “technical standard” as a document that specifies design, predicted performance and operation and maintenance specifications for a material, device or method. The department has consulted with DATCP in the development of the proposed rules and DATCP is expected to promulgate its related implementation rules in ch. ATCP 50, Wis. Adm. Code, Soil and Water Resource Management Program. Chapter NR 243, Wis. Adm. Code, regulates Concentrated Animal Feeding Operations (CAFOs), which are farms required to obtain a Wisconsin Pollutant Discharge Elimination System (WPDES) permit under s. 283.31(3), Stats. Section 283.31, Stats., provides authority to include terms and conditions in a WPDES permit to comply with water standards, ground water standards and federal requirements. Section 283.13(5), Stats., provides authority to include more stringent limitations in WPDES permits when necessary to meet water quality standards or other federal or state requirements. Section 92.15(2), Stats., provides that a local unit of government may 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), Stats. Section 281.16(3)(e), Stats., provides that an existing facility is not required to comply with the agricultural performance standards or prohibitions unless cost sharing is made available. Section 281.16(3)(e), Stats., states that the department shall promulgate criteria for determining whether cost sharing is available under s. 281.65, Stats. Section 281.65(1), (4)(e) and (8), Stats., provides authority for the department to promulgate rules regarding eligible costs related to compliance with agricultural nonpoint source performance standards, specifications and best management practices. Chs. NR 153 and 154, Wis. Adm. Code, identify grant programs, best management practices and cost share conditions to implement the performance standards in ch. NR 151, Wis. Adm. Code. 5. Plain Language Analysis: The department has found that, in areas of the state where Silurian bedrock is present, groundwater and surface water standards will not be attained by implementing the statewide agricultural performance standards and prohibitions in ch. NR 151, Wis. Adm. Code. This is because Silurian bedrock has the capacity to allow rapid transport of contaminants without attenuating those contaminants. Silurian bedrock is located in the eastern portions of the state, including areas in Brown, Calumet, Dodge, Door, Fond du Lac, Kenosha, Kewaunee, Manitowoc, Milwaukee, Outagamie, Ozaukee, Racine, Walworth, Washington and Waukesha counties. This rule identifies “Silurian bedrock” as the targeted area where certain rock formations are overlain by soils of 20 feet or less and establishes performance standards that will apply. The performance standards in the proposed rule are designed to minimize the risk for pathogen delivery to groundwater. Within the Silurian bedrock area, the rule sets forth manure spreading rates and practices that vary according to the soil depth and texture. The most restrictive practices apply to those limited areas of the highest risk for pathogen delivery. Less restrictive requirements apply in areas with 5 to 20 feet to bedrock.
Before mechanically applying manure in the Silurian bedrock area, the proposed rule requires a farmer to verify the depth of soils to bedrock where County soil maps provide an initial indication of less than 5 feet of depth to bedrock. The farmer’s field verification will establish the boundary of areas where the depth is less than 5 feet and what that depth actually is. This will determine which practices the farmer will need to employ to apply manure on those fields. The methodology to verify depth to bedrock (such as number of borings per acre, time of year taken, etc.) or tools available for this effort is a technical standard, and so will be developed by DATCP rather than DNR. Representatives from DATCP have worked closely with the department in the development of this rule and DATCP is expected to promulgate in ch. ATCP 50 the best management practices, conservation practices or technical standards used to demonstrate compliance with this rule. CAFOs in the Silurian bedrock areas will be required to comply with the standards in the rule through their WPDES permit, regardless of any local ordinance and absent cost sharing. Large CAFOs are not eligible for cost sharing under chs. NR 153 and 154, but are required to comply with the livestock performance standards in NR 151. A cross reference to the targeted performance standard language will be added to ch. NR 243, Wis. Adm. Code. Non-permitted farms in Silurian bedrock areas will be required to comply with the standards in the rule in certain limited situations. Where construction of appropriate best management practices is needed for compliance and those practices are eligible for cost share under chs. NR 153 and NR 154, Wis. Adm. Code, non-permitted farms will be required to comply only where cost share is offered. Certain practices are not eligible for cost share under chs. NR 153 and 154, Wis. Adm. Code. Non-permitted farms may be required to adopt certain changes absent cost share if a local unit of government adopts a local ordinance requiring farms to adopt changes consistent with the rule. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The federal government does not directly regulate discharges to groundwater in Silurian bedrock areas.
7. Comparison with Similar Rules in Adjacent States: A review of other states requirements for manure applications on shallow soils over bedrock found limited similarities with the proposed rule. There were similarities in technical standards and existing rules statewide from NRCS 590, NR 151 and NR 243 that apply to timing of manure applications and setback distances to some direct conduits (wells, sinkholes). Some of these requirements appear to protect groundwater from nitrogen leaching, not manure pathogen contamination.
• Minnesota has no specific requirements for manure applications on shallow soils over fractured bedrock. Minnesota recommends at least 2 ft. of soil between manure and fractured bedrock and avoid fall applications of manure (N loss).
• Iowa requires 200 ft. setbacks from sinkholes and wells when manure is not incorporated and 0 ft. setback when manure is incorporated. There are no specific requirements for spreading manure over shallow bedrock soils in Iowa.
• Michigan’s Generally Accepted Agricultural Management Practices (GAAMP) provide general recommendations to keep manure within the root zone of plants. GAAMPs have no specific manure setback recommendations from direct conduits (wells, sinkholes) and no recommendations for spreading manure in shallow bedrock soils.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The department convened a Technical Advisory Committee to discuss current NR 151 performance standards and groundwater conditions in sensitive areas, including Silurian bedrock areas of the state. The department identified Silurian bedrock as highest priority as a targeted performance standard area.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The department has prepared a preliminary draft Economic Impact Analysis that includes cost estimates based on available cost data.
10. Effect on Small Business (initial regulatory flexibility analysis): The department’s draft Economic Impact Analysis includes information on the effect on small business. In discussions with the Technical Advisory Committee, the department considered how the impact on small business could be reduced. The proposed rules allow flexibility for farmers and options for achieving compliance with the targeted performance standards.
11. Agency Contact Person: Mike Gilbertson, Water Resources Management Specialist, Wisconsin Department of Natural Resources, P.O. Box 7921, WT/3, Madison, Wisconsin 53707, mike.gilbertson@wisconsin.gov. 12. Deadline for Written Comments: Written comments were submitted to the agency contact person, listed above, by October 4, 2017.
Section 1 NR 151.015(2) is created to read:
NR 151.015(2) “Closed depression” means a topographical basin where water ponds to a seasonal high water mark, has no external drainage, and drainage may occur either through direct conduits to groundwater or low areas where water ponds and infiltrates into the groundwater. Closed depressions may be identified using topographic maps and visual interpretation, ArcGIS tools, or other methods. A seasonal high water mark may include, but is not limited to, areas that collect and retain water for extended time periods (days or weeks) that result in areas of reduced or no crop growth.
NR 151.015(2m) is created to read:
NR 151.015(2m) “Concentrated flow channel” means a natural channel or constructed channel that has been shaped or graded to required dimensions and established in perennial vegetation for the stable conveyance of runoff. Concentrated flow channel may also include non-vegetated channels caused by ephemeral erosion, intermittent streams, drainage ditches and drainage ends identified on the NRCS soil survey and may be identified as contiguous up-gradient deflections of contour lines on the USGS 1:24,000 scale topographic map.
NR 151.015(7m) is created to read:
NR 151.015(7m) “Established crop” means a growing annual crop, perennial crop or cover crop that provides vegetative cover of the soil.
NR 151.015(8d) is created to read:
