Rule-Making Notices (Hearing Notices)

- Maintain a phosphorus index, calculated according to the Wisconsin phosphorus index model, at or below a level of 6. Stop phosphorus applications to fields that exceed that index level, unless UW recommendations call for additional phosphorus applications (based on soil tests and crop needs).

- Regulate phosphorus applications based on soil tests. Forego or limit phosphorus applications as necessary, based on soil test levels and phosphorus removal by relevant crops (the standard specifies application limits based on soil test levels).

Excess Nutrient Applications

Under current DATCP rules, a nutrient management plan may not recommend nutrient applications that exceed the amounts needed to achieve fertility levels recommended by the university of Wisconsin for relevant crops. However the current rules allow certain exceptions.

One current exception allows for excess soil nutrient values caused by manure applications in prior years. This rule limits that exception, so that it only applies to manure applications in the year immediately preceding implementation of the nutrient management plan.

The current rules also permit excess nutrient applications for the following reasons:

• The farmer applies only organic nutrients (such as manure).

• Excess nutrients from organic nutrient applications will be used later in the planned crop rotation.

• Fields with corn following corn receive conservation tillage with greater than 50% residue after planting.

• Starter fertilizer is properly applied to row crops.

• The crop is irrigated.

This rule eliminates these exceptions, because these conditions are more precisely addressed in the (updated) NRCS technical guide nutrient management standard 590 (incorporated in this rule). This rule, like the current rules, permits excess nutrient applications based on special agronomic conditions documented by the nutrient management planner.

Cost-Sharing and Initial Applicability Not Affected

This rule does not change the previously-established effective dates for DATCP nutrient management rules (2005 in some watersheds, and 2008 elsewhere), nor does it change current cost-sharing requirements (enforcement of nutrient management standards is normally contingent on cost-sharing). Those effective dates and cost-sharing provisions still apply under this rule.

Environmental Impact

This rule will protect the environment by preventing excess nutrient applications that can result in nonpoint source pollution of surface water and groundwater. Nonpoint source pollution from farms has a major impact on surface water and groundwater quality.

Fiscal Impact

This rule will not have a major fiscal impact on DATCP or local units of government. This rule will change applicable standards for nutrient management plans, but will not increase the number of nutrient management plans required. Enforcement of this rule is generally contingent on cost-sharing. DATCP estimates that approximately $25 million in additional cost-share funding would be needed each year in order to fully implement this rule within 10 years. This rule does not mandate additional state or local review of nutrient management plans (beyond what already exists). County conservation staff currently review and monitor nutrient management plans as necessary, on farms that are required to have those plans.

DATCP and county land conservation staff will need to become familiar with the new standards. Staff will need to provide information and education about the new standards, and respond to questions from farmers and others. DATCP will undertake these new responsibilities with existing staff. DATCP estimates that counties will likewise be able to implement the revised standards with existing staff. A complete fiscal estimate may be obtained by calling [phone] or emailing [e-mail].

Business Impact

This rule will have a substantial impact on agricultural producers and other businesses.

Agricultural Producers

To the extent that it is implemented, this rule will increase costs for livestock operators and crop producers who are required to implement nutrient management plans. However, rule implementation is contingent on cost-sharing. Actual implementation will depend on the availability of cost-share funds. Without cost-sharing, most agricultural producers will not be obligated to comply.

This rule will not increase the number of nutrient management plans required, but will affect the content of the plans. It will also affect the farming practices needed to comply. This rule will have the greatest impact on livestock operations. It will have less impact on non-livestock crop producers. For livestock operations, the impact is primarily related to new phosphorus management requirements (current standards are based primarily on nitrogen, not phosphorus).

Manure generally provides higher amounts of phosphorus than nitrogen, compared to typical crop needs. So, livestock operators may need more acreage for manure disposal, to avoid excessive phosphorus applications. Costs will vary widely by livestock species, size of livestock operation, geographic location, cropping patterns, current nutrient content of soil, and availability of acreage for manure disposal. Non-livestock crop producers will be less affected, and may actually reduce their fertilizer costs by avoiding excessive phosphorus applications.

DATCP has estimated the costs to implement the new phosphorus standard, assuming that the standard is fully implemented (this will require cost-share funding that is not currently available). The estimate represents the annual incremental cost, over and above the cost to implement the existing (nitrogen-based) standard. DATCP estimates the statewide incremental cost, by livestock sector, as follows (estimation method described in attached business impact assessment):

Dairy:   $1.5 million

Beef:   $1.5 million

Swine:   $0.5 million

Poultry:   $2.8 million

Actual costs to the industry will be much less, because compliance is contingent on cost-sharing and cost-share funds are limited. Many farmers may never be required to comply. Cost-share payments will offset part of the cost for many who comply.

Under current rules, a cost-share offer must cover 70% of the cost to conduct soil tests and prepare a nutrient management plan (90% if there is financial hardship), or $7 per cropland acre, whichever amount is greater (the farmer chooses). The percentage rate applies only to costs of writing a nutrient management plan and performing soil tests (not manure hauling, etc.). The flat-rate payment ($7 per acre) applies regardless of actual costs.

Cost-share payments (whether flat-rate or percentage) are limited to 4 years. After that, the farmer assumes the full cost of compliance. Once a farmer achieves compliance, the farmer must maintain compliance regardless of cost-sharing. If a farmer falls out of compliance, the farmer is not eligible for cost-sharing to regain compliance.

In cost-share transactions to date, nearly all farmers have chosen the flat-rate ($7 per acre) payment. If farmers need additional acres to landspread manure (as many will under a phosphorus standard), the total cost-share payment will increase accordingly (even if the rate per acre does not change). The limited availability of state cost-share funds will limit actual enforcement of nutrient management requirements. Available funds will be allocated among fewer operations.

Some livestock operators must comply with nutrient management requirements under other applicable law, regardless of cost-sharing (and regardless of whether DATCP nutrient management rules would otherwise apply prior to 2008). These include:

• Operators who need a point source pollution discharge permit under NR 243 (mainly operations over 1,000 animal units).

• Operators who need a permit, under a local manure storage ordinance, for a voluntarily constructed manure storage facility (see current ATCP 50.54 (2) (b)).

• Operators who need a local permit for a new or expanded livestock facility with 500 or more “animal units," according to DATCP's proposed livestock facility siting rule (not this rule).

For more information contact DATCP small business regulatory coordinator Dennis Fay at [phone] or email at [e-mail].

Federal Regulations

The federal government does not regulate nutrient management on farms except that, under the federal Clean Water Act, certain concentrated animal feeding operations are subject to federal regulation as water pollution “point sources." DNR regulates these operations by permit, under authority delegated from the United States Environmental Protection Agency (EPA).

NRCS is proposing updated nutrient management standards based on phosphorus as well as nitrogen. NRCS does not enforce its standards as mandatory standards, except for operations that receive cost-share funding from NRCS. However, DNR and DATCP have incorporated these federal standards in state nutrient management rules. DATCP is proposing to incorporate updated NRCS standards in this rule.

Adjacent State Regulations

Surrounding states regulate nutrient management in a variety of different ways. Most of the states regulate phosphorus, as well as nitrogen. A description of other state programs is found in the plain language analysis that accompanies this rule.

Businesses Affected

Those effected are small businesses, as defined by s. 227.114 (1) (a), Stats.

This rule will have a substantial impact on agricultural producers as discussed above in the Business Impact section. In addition, this rule may increase farmer demand for services provided by the following businesses:

• Nutrient management planners.

• Soil and manure testing laboratories.

• Manure haulers.

• Construction contractors and conservation planners (practices to reduce soil erosion).

This rule will likely reduce sales of commercial phosphorus fertilizers, but may increase sales of commercial nitrogen fertilizer to meet crop needs (where manure applications are curtailed because of phosphorus constraints).

Reporting, Recordkeeping and Other Procedures Required for Compliance

Reporting and recordkeeping requirements of the NRCS nutrient management standard are stated above in the Rule Content section. Current DATCP rules incorporate an outdated version (March, 1999) of the NRCS nutrient management standard. This rule incorporates an updated NRCS standard. A nutrient management plan (if required) must adhere to the following provisions in the new standard (many, but not all, of these provisions already apply under the current standard).

The updated NRCS standard requires field features to be identified on maps or aerial photos in the plan. These features include field boundary, soil type, field identification, areas prohibited from receiving nutrients such as surface water, grassed waterways, sinkholes, land where vegetation is not removed, areas within 50 feet of a potable drinking well, and fields eroding at a rate exceeding tolerable soil loss (T). Other field features to be identified on maps are areas restricted from receiving winter nutrient applications. These areas are slopes greater than 12% and slopes greater than 9% that are not contoured, surface water quality management areas (land within 1,000 feet of lakes and ponds or within 300 feet of perennial streams), and areas within 200 feet upslope of direct conduits to groundwater.

All farmers required to have a nutrient management plan, will need to maintain planned and applied records for each fields nutrient application rates, timing, and methods of all forms of N, P, and K listed in the plan and consistent with UW Publication A 2809, Soil Test Recommendations for Field, Vegetable and Fruit Crops, and the 590 standard. This procedure is already required under the current rule.

A single phosphorus assessment of either the Phosphorus Index or soil test phosphorus management strategy must be uniformly applied to all fields within a tract.

Professional Skills Required to Comply

The proposed changes affect how nutrients, particularly phosphorus can be applied to fields. This rule may require moving manure to fields testing lower in phosphorus. However, phosphorus applications can still occur on fields testing excessively high for phosphorus if they are 25% less than the crop rotation's phosphorus removal over a 4 year period. Because nutrient management planning involves crop rotations, crop nutrient removal, and the predicted soil erosion levels of these crop rotations, nutrient management planners need an understanding of conservation planning and soil fertility management.

While anyone can develop nutrient management plans if they are knowledgeable, adoption of nutrient management planning on individual farms will in some cases require assistance. Training for producers, agronomists, and conservation staff has been provided by University of Wisconsin Extension personnel and agency staff in the past. In recent years, many farmers have been using crop consultants to plan and recommend nutrient applications. The department anticipates these information sources will continue to be used as the primary sources of information for crop producers.

Notice of Hearings

Agriculture, Trade and Consumer Protection
(reprinted from 2/15/05 Register)

[CR 05-014]

The Wisconsin Department of Agriculture, Trade and Consumer Protection (“DATCP") announces that it will hold public hearings on a proposed rule (ATCP 51) to implement Wisconsin's Livestock Facility Siting Law (s. 93.90, Stats.). DATCP will hold the hearings at the times and places shown below. DATCP invites the public to attend the hearings and comment on this proposed rule. DATCP will manage oral testimony to ensure that everyone has an opportunity to speak.

DATCP will hold these hearings in conjunction with hearings on another rule (ATCP 50), relating to nutrient management. This livestock siting rule (ATCP 51) incorporates the same nutrient management standards proposed in that other rule. DATCP has issued a separate notice of hearing on the nutrient management rule.

Following the public hearing, the hearing record will remain open until April 7, 2005, for additional written comments. Written comments should be sent to the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management attention Dilip Patel, 2811 Agriculture Drive, P.O. Box 8911, Madison WI 53708. Written comments can be submitted via email to [e-mail].

You may obtain a free copy of the proposed rule, and supporting documents such the environmental assessment, by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or 224-4610 or emailing [e-mail] or [e-mail]. Copies will also be available at the hearings. To view this proposed rule online, go to:

http://www.datcp.state.wi.us/core/environment/land-water/siting_rule.html

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by February 28, 2005, by writing to Dilip Patel, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911, telephone [phone]. Alternatively, you may contact the Department TDD at [phone]. Handicap access is available at the hearings.

Hearings with location information:

Date:   Monday, March 14, 2005

Location:   Fort Community Credit Union

  100 N. Main St.

  Jefferson, WI 53549

Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.

Date:   Tuesday, March 15, 2005

Location:   Heidel House Resort

  643 Illinois Avenue

  Green Lake, WI 54941

Times: 12:30-4:30 p.m. and 5:30 p.m. to 9:30 p.m.

Date:   Thursday, March 17, 2005

Location:   Ramada White House

  1450 Veterans Dr.

  Hwy 14 East & Veterans Dr.