DATCP Docket No. 15-R-13
Proposed Hearing Draft
Clearinghouse Rule No. _______
September 20, 2016
OF THE STATE OF WISCONSIN DEPARTMENT OF AGRICULTURE,
TRADE AND CONSUMER PROTECTION
The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes the following permanent rule to repeal ATCP 50.04 (3) (Note), 50.16 (3) (b) 1., 2. and (Note), 50.56 (3) (b) 1., 50.885 (4) (a) 2. (Note), 50.16 (6) (a) (5) (Note), 50.50 (2) (g) (Note); to amend ATCP 50.04 (1), 50.04 (3) (dm) 1., 50.04(3)(e) and (Note), 50.04 (3) (f), 50.04 (3) (g), 50.10 (title), 50.16 (3) (a), 50.16 (3) (a) 2., 50.16 (3) (a) (3) (Note), 50.16 (3) (a) 4. and (Note), 50.16 (4) (a), 50.16 (4) (b), 50.16 (4) (c), 50.16 (6) (b), 50.16 (6) (d), 50.32(7)(a), 50.40(3)(b)13., 50.42 (2) (g), 50.46 (3) (title), 50.48 (1) (a), 50.48 (2) (a) 2., 3., 4. and (Note), 50.48 (6), 50.50 (2) (d) and (Note), 50.50 (8) (c), 50.54 (2) (b), 50.56 (2) (g), 50.62 (3) (d), 50.62 (5) (a)and (c), 50.705 (5) (a) 6., 50.77 (4) (a) 5., 50.78 (3) (a) and (Note), 50.885 (4) (a) 2.; to repeal and recreate 50.50(8)(c)(Note); and to create 50.16 (6) (c) 3. and 4., 50.40 (11) (b) 4. and (Note), 50.46 (3) (c) 1., 2., 3., 4., 50.48 (1) (a), 50.50 (9), relating to soil and water resource management and affecting small business.
Analysis Prepared by the Department of
Agriculture, Trade and Consumer Protection
This rule modifies ch. ATCP 50, Wis. Admin. Code, related to Wisconsin’s soil and water resource management (SWRM) program. The Department of Agriculture, Trade and Consumer Protection (the “Department”) administers the SWRM program under ch. 92, Stats. The SWRM program is designed to conserve the state’s soil and water resources, reduce soil erosion, prevent pollution runoff and enhance water quality.
Explanation of Agency Authority
The Department has responsibilities imposed by statute for implementing the state’s nonpoint source pollution control program. Sec. 281.16, Stats., requires that the Department develop rules to implement department of natural resources (DNR) farm runoff standards, also known as the agricultural performance standards adopted in ch. NR 151, Wis. Adm. Code (NR 151). Chapter 92, Stats., establishes the framework for the Department to operate a statewide program that includes implementation of farm conservation practices such as nutrient management, approval of county land and water resource management plans, conservation compliance for the farmland preservation program, administration of soil and water resource management grants, oversight of manure storage and other local regulations covering livestock operations, provision of training and engineering practitioner certification, and standards for cost-sharing practices. Through ch. ATCP 50, Wis. Adm. Code (ATCP 50), the Department carries out these responsibilities. Among other things, ATCP 50 ensures that implementation of the farm runoff standards is contingent on cost share-requirements (see s. ATCP 50.08).
Related Statutes and Rules
As explained above, this rule is related to s. 281.16, Stats., and NR 151. Chapter 92, Stats., establishes the framework for the Department to operate a statewide soil and water resource management program. This rule also implements the soil and water conservation requirements in sub ch. V of ch. 91, Stats.
Plain Language Analysis
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
Among other things, this rule:
• Replaces the farm conservation practice standard for nutrient management (NM) and other standards for practices cost-shared in Subchapters II and VIII.
• Clarifies the requirements for farmland preservation conservation compliance consistent with the Department’s voluntary approach in Subchapter III. Farmers may be required to comply with new and modified standards without receiving cost-sharing.
• Increases the associated NM cost-sharing rates from $7 to $10 per acre per year due to additional costs associated with soil tests and new spreading restrictions in Subchapter V.
• Requires annual NM plans developed according to s. ATCP 50.04(3) for local regulation in Subchapter VII. Farmers may be required to comply with new and modified standards without receiving cost-sharing. • 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). Meaning, the 2005 and 2015-590 NM Standard provided the PI alternative with the soil test P management strategy.
• Enables the Department to simplify the process for cancelling a conservation engineer’s certification if agreed to in writing.
• Clarifies a qualified NM planner must complete a NM checklist form representing the NM plan, and provide reasonable documentation to substantiate each checklist response if requested by the Department or its agent.
• Clarifies the standards for cost-sharing, specifically that a manure storage system’s capacity is based on the farm’s inability to comply with the NM plan. When the facility is emptied, the manure must be applied to non-frozen soil in compliance with a NM plan under s. ATCP 50.04(3).