Register

County and Local Ordinances

General

Farm conservation requirements adopted by a county, city, village, town or local governmental unit must be reasonably consistent with this rule. DATCP must review, and may comment on, proposed ordinances requiring farm conservation practices. DATCP will review agricultural shoreland management ordinances and other ordinances that regulate farm conservation practices. DATCP will assist DNR in reviewing general shoreland management ordinances adopted under s. 59.692, if those ordinances regulate farm conservation practices.

Counties and local entities must submit relevant ordinances for review. They need not obtain DATCP approval of their proposed ordinances, except that DATCP must approve agricultural shoreland management ordinances (see s. 92.17, Stats.). This rule, like current rules, establishes specific standards for county and local ordinances related to manure storage and agricultural shoreland management (see below).

Manure Storage Ordinances

A county, city, village or town may enact a manure storage ordinance under s. 92.16, Stats. Current rules spell out standards for manure storage ordinances. This rule incorporates those standards without change.

Under this rule, a county or local manure storage ordinance adopted under s. 92.16, Stats., must require persons constructing manure storage systems to obtain a county or local permit. A person constructing a manure storage system must have a nutrient management plan that complies with this rule, and must comply with applicable design and construction standards.

A manure storage ordinance may prohibit any person from abandoning a manure storage system unless that person submits an abandonment plan and obtains an abandonment permit. The rule spells out suggested abandonment requirements for those ordinances that regulate abandonment.

Agricultural Shoreland Management Ordinances

A county, city, village or town may enact an agricultural shoreland management ordinance under s. 92.17, Stats., with DATCP approval. Current rules spell out standards for agricultural shoreland management ordinances. This rule adopts the current rules without change. DATCP must seek DNR and LWCB recommendations before it approves an ordinance or amendment, except that DATCP may summarily approve an ordinance amendment that presents no significant legal or policy issues.

Local Regulation of Livestock Operations

A local governmental unit may regulate livestock operations under s. 92.15, Stats. Local regulations must be consistent with this rule. A local regulation may not require a farmer to change or discontinue that part of a facility or practice that existed prior to the effective date of this rule unless the farmer's cost is insignificant or the farmer receives at least 70% cost-share funding.

Waivers

DATCP may grant a waiver from any standard or requirement under this rule if DATCP finds that the waiver is necessary to achieve the objectives of this rule. The DATCP secretary must sign the waiver. DATCP may not waive a statutory requirement.

Standards Incorporated by Reference

Pursuant to s. 227.21, Stats., DATCP has received permission from the attorney general and the revisor of statutes to incorporate by reference in this rule NRCS technical guide standards, ASAE engineering practice standards, DNR construction site erosion control standards, the UW- extension pollution control guide for milking center waste water management, and the UW-extension guide on rotational grazing. Copies of these standards are on file with the department, the secretary of state and the revisor of statutes, but are not reproduced in this rule.

NRCS technical guide nutrient management standard 590 is attached as Appendix D to this rule. Appendix B contains a summary of UWEX publication A-2809, Soil Test Recommendations for Field, Vegetable and Fruit Crops (copyright 1998), for selected crops. The department is seeking permission from the attorney general and revisor of statutes to incorporate the complete UWEX publication by reference in this rule. The complete publication and the summary are available from UW-extension, and will be on file with the department, the secretary of state and the revisor of statutes.

Fiscal Estimate

The proposed rule amends ATCP 3.02(1)(h), revising an administrative code reference; creates ATCP 40.11, related to nutrient management plan requirements for agricultural fertilizer sales; and repeals and recreates ch. ATCP 50, Wis. Adm. Code, interpreting Ch. 92, Stats., regarding the state's soil and water resource management program and the department's role in s. 281.16, Stats., related to water quality protection from nonpoint sources. The proposed rule incorporates changes to Ch. 92, and s. 281.16, Stats., made by 1997 Wisconsin Act 27 and 1999 Wisconsin Act 9, the past two biennial budget bills.

Impact of the Rule Revision on County Governments

The proposed rule establishes procedures and requirements for counties that prepare land and water resource management plans under s. 92.10, Stats. The initial plans were approved for two to three year periods. The next round of plans is expected primarily in 2001 and 2002. The department allocated an average of $2 million per year in 1999 and 2000 to counties to implement their land and water resource management plans. The department also allocates about $3.7 million annually (final allocation plan for 2000) to counties for basic annual staffing grants. The county's staff costs for preparing the county plans are eligible activities under these basic annual staffing grants.

The proposed rule establishes the procedures and standards that counties and other local governments must use to adopt local ordinances for manure storage systems (under s. 92.16, Stats.), shoreland management (under s. 92.17, Stats.), and for local regulation of livestock operations (s. 92.15, Stats.). The authority to adopt local regulations on livestock operations were established in 1997 Wisconsin Act 27. Local governments may adopt local ordinances, at their discretion. The department is required, under s. 92.05(3)(L), Stats., to review and comment on these ordinances and other ordinances adopted by local governments that regulate implementation of conservation practices.

As a result of the proposed rule, the department may be asked to increase the allocation of state funds to some county land conservation committees and some farmers. 1999 Wisconsin Act 9, the budget bill, included $3.575 million in new bond revenue, funding for cost-share grants; and transferred about $6.2 million from the Wisconsin DNR priority watershed program to the department in the second year of the biennium, fiscal year 2000-2001. The budget also directed the department to establish a goal of providing an average of three staff funded 100% for the first, 70% for the second, and 50% for the third staff person. The department is also directed to provide an average of $100,000 grant per year per county for cost-share assistance to implement county land and water resource management plans. The department is revising its allocation process to begin to phase in the new funding strategy for 2001. The proposed rule does not otherwise increase funding for the program; therefore any increases in grants to some counties must result in decreases in grants to other counties.

The department has estimated the cost to counties as a result of implementing the proposed performance standards and prohibitions included in the Department of Natural Resources' NR 151, and ATCP 50. The total staff costs to implement the agricultural performance standards and prohibitions are based on assumptions from the attached fiscal estimate worksheet. The total cost for staff to implement the performance standards and prohibitions are estimated at between about $80 million and $190 million over a ten year implementation period for low cost and high cost alternatives, respectively. Currently, there are about 400 county land conservation department staff, statewide. The department estimates that the average salary and fringe benefit for county staff is about $45,000 per year. For this fiscal estimate, the department assumes that about 75% of the needed staff resources to complete the technical and administrative work related to implementing the performance standards and prohibitions could come from redirecting current staff. Counties currently implement a number of local, state and federal programs that support implementation of the performance standards and prohibitions. Using the 75% assumption, implementing the rule over an assumed ten-year implementation period would result in an unmet need of about 450 staff (45 staff per year), or about $2 million per year for the low cost alternative. Assuming the high cost alternative, the department estimates that about 1,050 staff years would be needed over ten years, or about 105 staff per year, or about $4.7 million per year. The table below illustrates the assumptions used for the fiscal estimate. Please refer to the totals at the bottom of Appendix B for the total staff needs over ten years to implement the agricultural performance standards and prohibitions.

	Low Cost	High Cost
Total Staff Needed Over Ten-year Implementation	1,786	4,218
Annual Staff Needs for Implementation	179	422
75% of Need From Redirecting Current Staff	134	317
Difference Which Estimates Annual Additional Staff Needs	45	105
Estimated Annual Cost (Assuming $45,000 per staff per year)	$20 million	$4.7 million

The department recognizes that current workload analysis shows that from the estimates made by the USDA Natural Resources Conservation Service, with assistance from counties, that there is already an unmet staff need to implement current programs.

If less than 75% of the needed staff to implement the performance standards and prohibitions were from redirecting current staff, the staff costs would increase proportionately. The result of redirecting these current staff would result in fewer staff available to implement current programs. Especially, those programs that do not directly or indirectly implement the agricultural performance standards and prohibitions. The department believes the low cost estimate for this fiscal estimate is more accurate. The department believes the low cost is more accurate, because these estimates do not include the staffing contributions made by the federal government.

Impact of the Rule Revision to State Government

1999 Wis. Act 9, the biennial budget bill, transfers $170,000 in fiscal year 1999-2000 and $190,000 in 2000-2001 from the Department of Natural Resources (DNR) to the department for three staff positions. These staff will work on the new responsibilities resulting from the budget and the redesign of the state's nonpoint source programs. The department is assuming responsibilities to implement the agricultural component of DNR's nonpoint source program.

The department will have increased work associated with implementing a statewide nutrient management program. The proposed rule includes a process to certify soil-testing laboratories. The increased cost and work to administer the statewide nutrient management program and certify soil test laboratories will be done as a result of the new staff mentioned above and otherwise absorbed by the department.

The department will have increased work associated with reviewing ordinances proposed by local governments. Again, this activity will be included with the responsibilities of the new staff or otherwise absorbed by the department.

The department will have increased work associated with reviewing and approving county land and water resource management plans. The department previously had staff that assisted the Department of Natural Resources by developing portions of the priority watershed plans under DNR's nonpoint source pollution abatement program. The priority watershed program is being phased out and the department's staff that worked on the watershed plans will now be assigned to review and work with counties on land and water resource management plans.

The department also has new responsibility, under s. 281.16, Stats., to develop conservation practices and develop and disseminate technical standards to implement agricultural performance standards and prohibitions. The proposed rule establishes the procedures the department will use to accomplish this task. The department will utilize the new staff, or otherwise absorb this work activity.

Finally, the department will have increased work related to the grants issued to counties to implement land and water resource management plans and the agricultural performance standards and prohibitions in Department of Natural Resources NR 151 and ATCP 50. The department will utilize the new staff, or otherwise absorb this work activity into the current operating budget.

Initial Regulatory Flexibility Analysis

General Overview

The proposed rule for the soil and water resource management program establishes the standards and requirements for soil erosion control, animal waste management, nonpoint source water pollution abatement, and nutrient management for the soil and water resource management program in Wisconsin. Among other things, the proposed rule: requires farm conservation practices, creates a nutrient management program, sets guidelines for county land and water resource management plans, updates procedures for the allocation of grants, establishes technical standards for conservation practices, and transfers some of the nonpoint source water pollution abatement program from DNR to the department as directed by the legislature.

The proposed rule is closely tied to DNR's proposed rule, NR 151, which establishes seven agricultural performance standards that farmers are required to meet. Existing farming operations will be required to meet the performance standards if at least 70% cost sharing is made available to them. This proposed rule spells out the implementation strategy the department will follow to meet those performance standards. That strategy consists of having the department provide funds to implement county land and water resource management plans. By statute, the department must work toward funding an average of three staff positions in each county and an average of $100,000 per year in cost-share funds.

The small businesses primarily affected by this rule are farmers. Other businesses affected to a lesser degree are private crop consultants, farm cooperatives and farm supply organizations that perform nutrient management planning and that sell fertilizers to farmers. A third type of business affected by the rule are contractors who install conservation practices.

Farmers

The proposed rule and DNR's proposed rule, NR 151, require farmers to meet seven agricultural performance standards. The department has conducted a fiscal estimate of the costs farmers might have to implement practices to come into compliance with the standards. The worksheet for that fiscal estimate is attached to the environmental analysis for this proposed rule.

The proposed rule will affect small to moderate sized livestock operations in Wisconsin. Large livestock operations, those with more than 1000 animal units, are regulated by the Department of Natural Resources and treated as potential point sources of pollution. This proposed rule will also affect all farmers who apply manure, sludge or commercial fertilizers to their fields. This proposed rule will also affect all farmers with cropland eroding at more than tolerable levels.

A summary of the fiscal impact of this rule on farmers is as follows for each proposed performance standard. These costs represent out-of-pocket costs to farmers and associated costs for maintaining practices, lost opportunity costs, and local county staff costs. The estimates do not include anticipated financial benefits from the practices.

1. Proposed performance standard: All farmland must be cropped to achieve a soil erosion rate equal to, or less than, the `tolerable' (T) rate established for that soil.

	Ten-Year Low Cost	Ten Year High Cost
Farmer's costs (30%)	$ 36,450,000	$ 89,910,000
State's costs (70%)	$ 85,050,000	$209,790,000
Total	$121,500,000	$299,700,000

2. Proposed performance standard: Grass vegetation shall be established and maintained in concentrated flow channels within cropland areas where runoff would otherwise cause erosion or sediment delivery to navigable surface waters.

	Ten-Year Low Cost	Ten Year High Cost
Farmer's costs	$2,700,000	$ 5,400,000
State's costs	$6,300,000	$12,600,000
Total	$9,000,000	$18,000,000

3. Proposed performance standard: Soil loss from any portion of cultivated fields located within water quality management areas that drain to navigable surface waters shall not exceed 0.33 of tolerable soil loss (“T")

	Ten-Year Low Cost	Ten Year High Cost
Farmer's costs	$ 739,440	$11,091,600
State's costs	$1,725,360	$25,880,400
Total	$2,464,800	$36,972,000

4. Proposed performance standard: New or substantially altered existing manure storage facilities must be constructed to meet NRCS standard 313. Abandonment of manure storage facilities shall be completed according to NRCS standard 313 requirements.

This proposed standard does not require any farmer to construct or abandon facilities. It merely states that if they are going to construct or abandon manure storage facilities, they must do it safely and according to standards. Those farmers with unexpected costs associated with this standard are those livestock operations with manure storage facilities that are going out of business. Their estimated costs are as follows.

	Ten-Year Low Cost	Ten Year High Cost
Farmer's costs (30%)	$ 4,500,000	$ 7,500,000
State's costs (70%)	$10,500,000	$17,500,000
Total	$15,000,000	$25,000,000

5. Proposed performance standard: Runoff shall be diverted away from contacting feedlot and barnyard areas within water quality management areas.

The cost estimates for diverting runoff from barnyards and feedlots are included in the cost estimates for performance standard number seven, the performance standard for the four Animal Waste Advisory Committee prohibitions.

6.   Proposed performance standard: Any application of manure, sludge or commercial nitrogen and phosphorus fertilizer shall be done in conformance with a plan developed in accordance with NRCS standard 590.

Nutrient Management Planning

	Ten-Year Low Cost	Ten Year High Cost
Farmer's costs 30%	$ 85,500,000	$ 97,500,000
State's costs 70%	$199,500,000	$227,500,000
Total	$285,000,000	$325,000,000

Required Manure Storage

	Ten-Year Low Cost	Ten Year High Cost
Farmer's costs	$ 21,661,500	$28,875,000
State's costs	$ 50,543,500	$67,375,000
Total	$ 72,205,000	$96,250,000

7. Proposed performance standard: “A livestock operation shall have no overflow of manure storage facilities." “A livestock operation shall have no unconfined manure pile in a water quality management area." “A livestock operation shall have no direct runoff from a feedlot or stored manure into the waters of the state." A livestock operation shall not allow unlimited access by livestock to waters of the state in a location where high concentrations of animals prevent the maintenance of adequate sod cover.

	Ten-Year Low Cost	Ten Year High Cost
Farmer's costs 30%	$ 36,904,800	$ 38,750,040
State's costs 70%	$ 86,111,200	$ 90,416,760
Total	$123,016,000	$129,166,800

Because the estimated costs are so large, much of the required work may not get done, or at least it will not get done in the immediate future. The law requires that at least 70% cost sharing must be provided before a farmer may be required to do work to meet a performance standard. Therefore, the governing factor determining what a farmer must do is the amount of cost-share dollars the state has available each year. DATCP currently has approximately $3,000,000 in cost-share funds. Added to the farmers' share, this will install about $4,300,000 worth of conservation practices each year. The average grant amount for a contract issued by the department is between $15,000 and $20,000. If the department's cost-share funding stays at approximately $3,000,000, the total number of farmers that we will be able to work with will be between 150 and 200 each year. In their land and water resource management plans, counties may find different ways to reach more people with the available cost-share dollars.

This proposed rule does require additional reporting and record-keeping activities from farmers. For farmers who have not been doing conservation or nutrient management work, these reporting and record-keeping activities will be new. It is anticipated that more cost-share dollars will be made available under this new program and, therefore, more farmers will have to do the reporting, record keeping and other requirements associated with receiving grants. The procedures required of these farmers includes preparing and following conservation or erosion control plans for cropland fields, preparing and following nutrient management plans for fields on which nutrients are applied, and agreeing to and following contracts as a condition for receiving cost-share funds. Farmers will have to keep track of plans and be able to document activities to demonstrate compliance with them. These rule requirements will mean that farmers must understand and keep records of soil types, nutrient requirements of various crops, nutrient content of various kinds and amounts of manure and planned schedules for applying nutrients and conservation practices.

Most farmers are aware of conservation and nutrient management plans and the factors that go into determining erosion rates and amounts of nutrients to be applied. County-based conservation professionals are available to assist farmers with making calculations, interpreting plans and reading designs and specifications. The requirement for all farmers to prepare and follow nutrient management plans may require some farmers to become more familiar with crop needs, soil types and nutrient levels in livestock manure. We can assume that most farmers have this knowledge and these skills, but they may have to be increased or refined to meet the nutrient management requirements, depending on the skill of the individual farmer involved.

Crop consultants, farm cooperatives, farm supply organizations, and manure-haulers

Those providing nutrient management planning services to farmers and those selling fertilizers to farmers will be affected by this rule. Nutrient management planners will have to be recognized by the department as being qualified to prepare plans. Their work will be reviewed periodically by the department.

More state and landowner funds will likely be spent on preparing nutrient management plans, thereby increasing business opportunities for this industry. By 2006, all cropland acres will be required to be following nutrient management plans. As many as nine to ten million cropland acres could require nutrient management plans at an average cost of between six and ten dollars an acre.

On the other hand, the sale of commercial fertilizers will probably be reduced. In addition, those who sell fertilizers to farmers will have to keep records of who prepared nutrient management plans for those farmers purchasing the fertilizers. Those selling fertilizers will not be required to refuse sales if no nutrient management plan has been prepared, but they must make records available to department inspectors upon request.

Nutrient management planners will have to become familiar with the University of Wisconsin nutrient recommendations in the UW Extension publication number A2809. They will have to become familiar with, and follow, department guidelines and requirements for approvable nutrient management plans.

This proposed rule will result in an increased demand for manure-haulers throughout the state. As part of implementing their nutrient management plans, many farmers will have to rely on commercial manure-haulers to apply their manure on appropriate fields. This industry should see increased revenue and business from many farmers.

Construction contractors

Statewide, the impact of this proposed rule on construction contractors will differ from what it has been in the past. There will be no different professional skills required and no increase in reporting and record-keeping requirements. The main impact of this proposed rule on contractors will be the redistribution of projects across the state. This may not affect large contractors who are more mobile and can set up branch offices, but smaller, less mobile operations may see a negative impact.

Instead of having project concentrated in a relatively few priority areas in the state, under the new program each county will receive some funds for projects. This will result in more evenly distributed projects across the state. This will benefit those contractors which are more mobile than those which are not. After about a one or two year period of adjustment, this change on the industry will likely stabilize.

Draft Environmental Assessment

The department has prepared a draft environmental assessment for this proposed rule. Copies are available from the department upon request and will be available at the public hearings. Copies of the environmental assessment can from: Wisconsin Department of Agriculture, Trade and Consumer Protection, Agricultural Resource Management Division, Bureau of Land and Water Resources, 2811 Agricultural Drive, P.O. Box 8911, Madison, WI 53708-8911; telephone [phone]. The department will accept comments on the draft environmental assessment at the public hearings and will accept written comments on the environmental assessment until April 14, 2000.

Notice of Hearings

Dept. of Commerce

(Anhydrous Ammonia, Ch. Comm 43)

[CR 00-38]

Notice is hereby given that pursuant to ss. 101.02 (15) (h) to (j) and 101.17, Stats., the Department of Commerce announces that it will hold public hearings on proposed rules repealing and recreating ch. Comm 43, relating to anhydrous ammonia.

Hearing Information

The public hearings will be held as follows:

Date & Time   Location

March 16, 2000   Room 3C

Thursday   Thompson Commerce Ctr.

10:00 a.m.   201 West Washington Ave.

  MADISON, WI

March 17, 2000   Room 105

Friday   Eau Claire State Office Bldg.

11:00 a.m.   718 West Clairemont Ave.

  EAU CLAIRE, WI

These hearings are held in accessible facilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call [phone] or TTY at [phone] at least 10 days prior to the hearing date. Accommodations such as interpreters, English translators, or materials in audio tape format will, to the fullest extent possible, be made available upon request by a person with a disability.