DATCP currently provides grants to pay for county soil and water conservation staff (see above). Under the redesigned nonpoint source pollution abatement program, DATCP will also fund county and local staff who are still engaged in DNR's priority watershed program. Funding for these county staff will be added to, and included in, DATCP's annual staffing grants to counties.
Agricultural Engineering Practitioners; Certification
Under s.
92.18, Stats., DATCP must certify persons who design, review or approve cost-shared agricultural engineering practices. This rule identifies the agricultural engineering practices for which certification is required. This rule continues, without change, the certification program established under current rules. No certification is required for a professional engineer certified under ch.
443, Stats.
Applying for Certification
Under this rule, a person who wishes to be certified as an agricultural engineering practitioner must apply to DATCP or a county land conservation committee. A person may apply orally or in writing. DATCP or the committee must promptly refer the application to a DATCP field engineer. Within 30 days, the DATCP field engineer must rate the applicant and issue a decision granting or denying the application.
Certification Rating
The DATCP field engineer must rate an applicant using the rating form shown in Appendix E to this rule. The field engineer must rate the applicant based on the applicant's demonstrated knowledge, training, experience, and record of appropriately seeking assistance. For the purpose of rating an applicant, a field engineer may conduct interviews, perform inspections, and require answers and documentation from the applicant.
For each type of agricultural engineering practice, the rating form identifies 5 job classes requiring progressively more complex planning, design and construction. Under this rule, the field engineer must identify the most complex of the 5 job classes for which the applicant is authorized to certify that the practice is properly designed and installed. A certified practitioner may not certify any agricultural engineering practice in a job class more complex than that for which the practitioner is certified.
Appealing a Certification Decision
A field engineer must issue a certification decision in writing, and must include a complete rating form. An applicant may appeal a certification decision or rating by filing a written appeal with the field engineer. The field engineer must meet with the appellant in person or by telephone to discuss the matters at issue.
If the appeal is not resolved, DATCP must schedule an informal hearing before a qualified DATCP employee other than the field engineer. After the informal hearing, the presiding officer must issue a written decision that affirms, modifies or reverses the field engineer's action. If the applicant disputes the presiding officer's decision, the applicant may request a formal hearing under ch.
227, Stats.
Reviewing Certification Ratings
Under this rule, a DATCP field engineer must review the certification rating of every agricultural engineering practitioner at least once every 3 years. A field engineer must also review a certification rating at the request of the person certified. A field engineer may not reduce a rating without good cause, and all reductions must be in writing.
Suspending or Revoking Certification
Under this rule, DATCP may suspend or revoke a certification for cause. DATCP may summarily suspend a certification, without prior notice or hearing, if DATCP makes a written finding that the summary suspension is necessary to prevent an imminent threat to the public health, safety or welfare. The practitioner may request a formal hearing under ch.
227, Stats.
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 county 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 must submit relevant ordinances for review. They need not obtain DATCP approval of their proposed ordinances, except in specific cases provided by statute. 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., and other statutes. Local regulations must comply with s.
92.15, Stats., as applicable.
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. Where technical standards have changed, DATCP is seeking permission from the attorney general and the revisor of statutes to incorporate by reference the modified standards.
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 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 2002 and 2003. The department allocated an average of $2 million per year in 1999, 2000 and 2001 to counties to implement their land and water resource management plans. The department also allocates about $10.2 million annually (final allocation plan for 2001) to counties for annual staffing grants. The county's staff costs for preparing the county plans are eligible activities under these 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 was 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 2002. 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) $ 2.0 million $ 4.7 million
A workload analysis prepared by the USDA Natural Resources Conservation Service, (with assistance from counties), shows an unmet staff need to implement current programs. If less than 75% of the needed staff to implement the performance standards and prohibitions were available 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. The programs affected under this scenario include those that do not directly or indirectly implement the agricultural performance standards and prohibitions. However, the department believes the low cost estimate for this fiscal estimate 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 Wisconsin Act 9, the biennial budget bill transferred $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 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
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, and establishes technical standards for conservation practices.
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, and lost opportunity costs. The estimates do not include anticipated financial benefits from the practices.
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 Ten-Year
Low Cost High Cost
Farmers' costs $ 49,500,000 $ 76,500,000
State's costs $115,500,000 $178,500,000
Total $165,000,000 $255,000,000
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 Ten-Year
Low Cost High Cost
Farmers' costs $2,700,00 $ 4,050,000
State's costs $6,300,000 $ 9,450,000
Total $9,000,000 $13,500,000
Proposed performance standard: All cropped fields, pastures or woodlots located within water quality management areas, not including sites defined under s.
NR 151.01518) (a) to (f), shall have a minimum water quality corridor that conforms to one of the following options: (1) a ten foot permanent vegetation cover corridor with 90 feet of cropland with at least 50% residual cover; (2) a 20 foot permanent vegetation cover corridor with 30 feet of cropland with 30% residual cover; (3) a 20 foot permanent vegetation cover corridor with 100 feet of cropland with no residual cover if the slope is less than 2%; and (4) a 35 foot permanent vegetation cover corridor with no residual cover on adjoining cropland.
Ten-Year Ten-Year
Low Cost High Cost
Farmers' costs $ 42,000,000 $63,900,000
State's costs $ 98,000,000 $149,100,000
Total $140,000,000 $213,000,000
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 Ten-Year
Low Cost
High Cost
Farmers' costs $ 300,000 $ 600,000
State's costs $ 700,000 $1,400,000
Total $1,000,000 $2,000,000
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.
