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.
