Wisconsin Department of Agriculture,
Trade and Consumer Protection
Initial Regulatory Flexibility Analysis
Rule Subject:       Soil and Water Resource Management Program
Adm. Code Reference:     ATCP 50
Rules Clearinghouse #:     __-___
Department Docket #:     15-R-13
Rule Description
General
This proposed rule will modify the Soil and Water Resource Management (SWRM) Program under ch. ATCP 50, primarily for the purpose of incorporating the changes to the United States Department of Agriculture’s (USDA) Natural Resources Conservation Service (NRCS) 2015 version of the 590 Nutrient Management Standard (2015-590 NM Standard) for the purposes of implementing ch. NR 151 adopted by the Department of Natural Resources (DNR) in 2011 (2011 DNR standards).1 The most significant changes to the rule that impact this analysis center on the agricultural conservation standards for nutrient management (NM) in Subchapters II, clarification of requirements for farmland preservation conservation compliance in Subchapter III, a cost share rate adjustment in Subchapter V, NM requirements in local regulations in Subchapter VII, and the NM technical and other standards for practices cost shared with state funds in Subchapter VIII. Farmers and others may benefit from various rule changes intended to improve NM implementation and resource protection.
1DNR’s final rulemaking order of September 24, 2010, Administrative Rule Number WT-14-08, as well as revised fiscal estimate is available at https://health.wisconsin.gov/admrules/public/Rmo?nRmoId=1703
Small Businesses Affected
The moderate impacts of this rule will mostly affect farmers, a great majority of whom qualify as “small businesses.” This rule provides technical runoff control standards for farmers to implement the water quality performance standards required by the 2011 DNR promulgated standards. Most farmers will be insulated from some of the costs of implementation because of the state’s cost share requirement and the limited availability of state funding to provide cost-sharing. For farmers receiving farmland preservation program (FFP) tax credits, this rule provides farmers the flexibility to minimize financial impacts of compliance, including the option of discontinuing collection of a tax credit as a last recourse to avoid compliance responsibilities. Rule changes will also affect businesses other than farmers including NM planners, soil testing laboratories, farm supply organizations, agricultural engineering practitioners, and contractors installing farm conservation practices. The rule will impact these businesses to a much smaller degree, and with primarily positive impacts.
To reach its conclusion regarding agricultural nutrient management (NM) impacts on farmers and non-farmers, the Department assessed the costs associated with the changes to the 2015-590 NM Standard as compared to the 2005-590 NM Standard, while also identifying aspects of the 2015-590 NM Standard that are likely to have no cost increases to farmers or that may reduce the cost of conducting NM on their farms. The Department concludes that this rule will create a moderate impact on farmers and other businesses.
Department Impact Analysis
Chapter 92.05(3)(k) charges the Department with improving agricultural NM, making rules consistent with s. 281.16(3), and providing financial incentives, education, and compliance assistance to agricultural landowners. Implementing NM practices can improve farm profitability, reduce excess nutrient applications to cropland, and reduce water quality impacts. The Wisconsin USDA NRCS developed the 2015 version of the Wisconsin 590 Nutrient Management Standard with technical assistance from agronomists, farmers, UW scientists, and agency staff. In Wisconsin, the 590 Standard uses the current 2012 version of UW Pub. A2809 Nutrient Application Guidelines for Field, Vegetable and Fruit Crops to determine the crop’s nutrient needs and includes other restrictions required of NM plans developed for: Department of Natural Resources (DNR) – Notice of Discharge or Wisconsin Pollution Discharge Elimination System permits for >1000 animal unit operations, Ordinances for manure storage or livestock siting, Department cost share or Farmland Preservation, DNR cost share, USDA cost share, or voluntary reasons.
The Department calculates an additional $3/acre to comply with the 2015-590 NM Standard may be appropriate for those farms that have not yet developed a NM plan. The costs for soil testing and labor have increased, and additional restrictions have been added to the 2015-590 NM Standard that may require more land to apply manure compared to the 2005-590 NM Standard. The reasons for needing more land to apply manure are due to the additional spreading restrictions listed below.
Prohibiting nutrient applications within 50’ of all direct conduits to groundwater where only grazing and a limited amount of corn starter fertilizer may be applied. This change was added to all direct conduits to groundwater, not just wells. However the 2015-590 NM Standard deletes a 200’ incorporation requirement for non-winter nutrient applications, allowing farmers to use less erosive tillage practices.
Prohibiting applications of manure within 100’ of a non-community well which includes schools, restaurants, churches, and within 1000’ of a community well unless the manure is treated to reduce pathogen content. Community wells cover approximately 30,000 acres of cropland. Non-community wells are not mapped and cropland acreage is estimated to be less than 7,000 acres.
Prohibiting winter nutrient applications within 300’ of all direct conduits to groundwater, unless manure is directly deposited by gleaning or pasturing animals. This setback increased 100’ from the 200’ setback in the 2005-590 Standard.
Prohibiting liquid manure application in February or March on DNR Well Compensation Areas, or on fields with Silurian dolomite bedrock within 5’ of the surface. DNR Well Compensation Areas cover about 6,000 acres of cropland and Silurian dolomite bedrock within 5’ of the surface covers 83,000 acres of cropland.
Limiting manure nitrogen (N) applications in late summer or fall using the lower application rate of either the current 2012 version of UW Pub. A2809 or 2015-590 NM Standard available N per acre rate for the situation on sites vulnerable to N leaching high permeability (P) soils, or rock (R) soils with < 20 inches to bedrock, or wet (W) soils with < 12 inches to apparent water table (PRW Soils). N rates of 90 or 120 lbs. N per acre have not changed. The rates depend on the crop, manure dry matter, and soil temperature. Wisconsin P soils cover 1.3 million cropland acres, R soils cover 235,000 cropland acres, and W soils cover 1.5 million cropland acres.
Limiting winter manure applications when frozen or snow-covered soils prevent effective incorporation. The NM plan must limit these applications when slopes are > 6% and if fields have concentrated flow areas using 2 practices listed in the winter application section of the 2015-590 NM Standard. These requirements do not apply to manure deposited through winter gleaning or pastoring. Farmers will need more application acreage if they choose these practice options as either or both of the required practices for each field: Apply manure in intermittent strips on no more than 50% of field; Reduce manure application rate to 3,500 gal., or 30 lbs. P2O5, whichever is less; No manure application within 200 feet of all concentrated flow channels; Fall tillage is on the contour and slopes are lower than 6%. Wisconsin has 3.1 million cropland acres with slopes greater than 6%.
Prohibiting manure applications to areas locally delineated by the Land Conservation Committee as areas contributing runoff to direct conduits to groundwater, unless manure is substantially buried within 24 hours of application. This provision now requires incorporation to reduce the risk of runoff being intercepted by the conduit to groundwater in all seasons. Therefore, winter applications are prohibited, because the manure cannot be effectively incorporated if the ground is frozen. Farmers may need more application acreage if the field’s soil loss will be too high with the required manure incorporation or if crops are no-tilled. A conservation plan, signed by the land operator and approved by the county Land Conservation Committee, will be needed for designating winter spreading restrictions other than those specifically listed in this standard.
Not all the changes to the 2015-590 NM Standard will require more land or add costs:
Nutrients cannot be applied within 8’ around an irrigation well making this prohibition consistent with NR 812 well code. The 2015-590 NM Standard clarifies that an irrigation well does not require a 50’ nutrient prohibition and incorporation of manure within 200' of the well.
New options are now available to control ephemeral erosion, including contours, reduced tillage, adjusting the crop rotation, or implementing other practices to control ephemeral erosion. Existing options include using contour strips, contour buffer strips, filter strips, > 30% crop residue after planting, and establishing fall cover crops.
Late summer or fall commercial N fertilizer applications are limited on: areas within 1,000 feet of a community well; 5 feet or less over bedrock; sites vulnerable to N leaching high permeability (P) soils, or rock (R) soils with < 20 inches to bedrock, or wet (W) soils with < 12 inches to apparent water table; to rates needed for establishment of fall seeded crops or to meet UWEX Pub. A2809 with a blended fertilizer. The fall N rate was increased from 30 to 36 lbs. of N per acre to match common blended fertilizers if other nutrients are needed. The 2015-590 NM Standard is likely to decrease the amount of N fertilizer that can be applied in the fall; but, the applications can be made in the spring. Wisconsin has approximately 1.8 million cropland acres with bedrock within 5’ of the surface.
An additional option for use on P soils, when commercial N is applied in the spring and summer has been added. These in-season applications must follow the UWEX Pub. A2809 crop N rate guidelines and apply one of the following strategies: a split or delayed N application to apply a majority of crop N requirement after crop establishment, use a nitrification inhibitor with ammonium forms of N, or, use slow and controlled release fertilizers for a majority of the crop N requirement applied near the time of planting.
More options for mechanical applications of manure or organic by-products in the winter in the surface water quality management area (SWQMA) within 1000’ of lakes/ponds or 300’ of rivers. A new option allows for no-till silage if nutrient applications are made within 7 days of planting. Nutrient applications in the spring, summer, and fall limit mechanical applications to 12,000 gals/acre of unincorporated liquid manure with 11% or less dry matter where subsurface drainage is present or within the SWQMA. This will be easier to implement with a single manure rate with more gallons per acre.
Other provisions in the rule were adjusted to clarify processes or procedures for implementing the nutrient management program:
Clarifies that the alternative related to s. NR 151.04, the phosphorus index (PI), is a nutrient management plan developed in accordance with the nutrient management provisions in 50.04(3) and provides that in accordance with both the 2005-590 NM Standard and 2015-590 NM Standard the alternative to the PI is complying with the soil test P management strategy.
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