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
Background
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 Rule Content
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). • Identifies a conflict of interest prohibition for Department certified soil testing laboratories.
The following provides more detailed analysis by subchapter.
Soil and Water Conservation on Farms
Farm Conservation Practices, specifically nutrient management
To implement the 2011 DNR standards, this rule modifies the farm conservation practices as follows:
Nutrient Management and Phosphorus Index. This rule replaces the farm conservation practice standard for nutrient management (NM) and other standards for practices cost-shared in Subchapters II and VIII. 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. 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, and may increase the amount of time required to develop a NM plan that complies with the 2015-590 NM Standard. The potential need for more land to apply manure is 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.
• 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.
• 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.
• 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%.
• 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 of 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.
• 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.
This rule continues to allow farmers to choose the best way to comply with this rule. A farmer may choose between conservation practices that are appropriate for the farm, as long as those practices achieve compliance. Farmers continue to have access to a range of resources such as the Department, UW-Extension, NRCS, and the county land and water conservation departments to secure technical assistance.
Cost Sharing Required
The Department has not changed the requirement for cost-sharing when a landowner is required to install conservation practices. Under state law, compliance with the performance standards is not required for existing nonpoint agricultural facilities and practices unless cost sharing is made available for eligible costs. This rule clarifies:
• The changes from the 2005-590 NM Standard to the 2015-590 NM Standard increases the associated cost-sharing rates from $7 to $10 per acre per year due to additional costs associated with soil tests and new spreading restrictions.
• The Farmland Preservation section requirements seeking voluntary compliance with the rule changes to the maximum extent feasible, consistent with the Department’s past approach. Farmers who wish to continue to participate in this program may be required to comply with new and modified standards without receiving cost sharing.
• A NM plan, and subsequent annual submissions for local regulation means NM plans develop according to s. ATCP 50.04(3). Farmers may be required to comply with new and modified standards without receiving cost sharing. • 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). County Soil and Water Conservation Programs
Farmland Preservation; Conservation Standards
The impacts from this rule on farmers participating in the farmland preservation program (FFP) arise from the changes related to FPP implementation. In the case of the 13,500 farmers who collected $18 million in farmland preservation tax credits (based on 2015 payments for tax year 2014 claims), they may be required to comply with new and modified standards without receiving cost-sharing. Identifying impacts with precision is complicated by a number of factors including the changes in program participants over time, the compliance status of new participants, and the range of options to achieve compliance. The Department’s proposed rule revision:
• Clarifies and limits impacts on this group by providing time for program participants to comply with the new performance standards, using performance schedules.
• Clarifies that certificates of compliance issued to farmers complying with standards can be modified if some land is sold. Certificates of compliance are rendered void if all the land is under new ownership or a county land conservation committee issues a notice of noncompliance if a landowner no longer complies. Conversely, a county land conservation committee can withdraw a notice of noncompliance if the landowner is again found in compliance with standards. Also, farmers may receive cost-sharing to install conservation practices necessary to maintain their eligibility for tax credits. Last, but not least, farmers who feel the compliance burdens are too great may decide to stop collecting a tax credit rather than implement standards.
• This rule ensures that a farmer’s eligibility is in part based on meeting state conservation standards that mirror DNR performance standards and prohibitions. This rule 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. Grants for Conservation Practices
The Department’s proposed rule revision clarifies that a cost share grant may not be used to bring a permittee into compliance with standards under Wisconsin Pollution Discharge Elimination System permit under chs. 281 and 283, Stats. Soil and Water Professionals
