Summary of factual data and analytical methodologies
The Department reviewed statutes that authorize enforcement to determine the limitations if any of whether discretionary enforcement could be used and the extent of that discretion.
Analysis and supporting documents used to determine effect on small business
Entities that may be affected by the proposed rules include the following: Emergency Medical and Ambulance Service Providers; Asbestos & Lead Abatement Providers, Consultants, and Trainers; Hotels and Motels; Bed and Breakfast Establishments; Tourist Rooming Houses; Recreational and Educational Campgrounds; Restaurants (including mobile restaurants); Tattoo and Body Piercing Establishments; Tanning Bed Facilities; Public Pools; Vending Machine Operators; WIC Vendors; persons subject to licensing and regulation under ch.
DHS 157; other entities regulated by the Department's Division of Public Health; and certain Medical Assistance providers regulated by the Department's Division of Health Care Access and Accountability.
Section
895.59, Stats., is applicable only to small businesses that are not covered under ss.
48.685 or
50.065, Stats. Because the rule requires a reduction or waiver of a penalty for voluntary disclosure of a violation, it is likely that the rule will have a positive fiscal effect on those businesses that receive a waiver or reduction.
Small Business Impact
The proposed rules will have a direct impact on a substantial number of small businesses that are not covered under ss.
48.685 or
50.065, Stats. The economic impact on the businesses affected by this rule is indeterminate.
Small business regulatory coordinator
Rosie Greer
Phone: 608-266-1279
Fiscal Estimate
A copy of the full fiscal estimate may be obtained from the department's contact person listed below upon request.
State fiscal effect
None.
Local government fiscal effect
None.
Private sector fiscal effect
Indeterminate.
Agency Contact Person
Rosie Greer
Department of Health Services
1 W. Wilson Street, Room 650
Madison, WI 53707
Phone: 608-226-1279
Natural Resources
Environmental Protection — General, Chs.
NR 100—
NOTICE IS HEREBY GIVEN THAT pursuant to ss.
227.11 (2) (a),
281.16,
281.19,
281.65 and
281.66, Stats., the Department of Natural Resources will hold public hearings on proposed revisions to Chapters
NR 151,
153 and
155, Wis. Adm. Code, relating to the control of polluted runoff and two grant programs that help fund those controls.
Hearing Information
The hearings will be held on:
January 25, 2010 Outagamie County Highway Dept.
at 1:00 p.m. Highway Shop Conference Room
1313 Holland Road
Appleton
January 28, 2010 Best Western Trail Lodge
at 1:00 p.m. 3340 Mondovi Road
Room: Chippewa #1
Eau Claire
February 2, 2010 State Office Bldg.
at 1:00 p.m. 141 NW Barstow St., Room 151
Waukesha
February 10, 2010 Lyman F. Anderson Agricultural and
at 1:00 p.m. Conservation Center
1 Fen Oak Court
Classrooms A & B (1st floor)
Madison
February 11, 2010 Rib Mountain Municipal Center
at 1:00 p.m. 3700 N. Mountain Road (HWY NN)
Wausau
February 25, 2010 UW Platteville, Pioneer Student Center
at 1:00 p.m. University North Room
One University Plaza
Platteville
Each hearing will begin with a 1 hour informational session followed by formal testimony.
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided to qualified individuals with disabilities upon request. Please call Carol Holden at (608) 266-0140 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed Rule and Fiscal Estimate
The proposed rule revisions and supporting documents, including the fiscal estimate may be viewed and downloaded and comments electronically submitted at the following internet site:
https://health.wisconsin.gov/admrules/public/ Home (Search this website using “NR 151", select “NR 151, 153, 155 Relating to Runoff Management Performance Standards and Grants."). If you do not have internet access, a personal copy of the proposed rules and supporting documents, including the fiscal estimate may be obtained from Carol Holden, DNR – WT/3, P.O. Box 7921, Madison, WI 53707-7921 or by calling (608) 266-0140.
Submission of Written Comments
Written comments on the proposed rules may be submitted via U.S. mail to Carol Holden, DNR – WT/3, P.O. Box 7921, Madison, WI 53707-7921 or by e-mail to carol.holden@ wisconsin.gov. Comments may be submitted until March 12, 2010. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings.
Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Related statute or rule
Plain language analysis of the rule
Chapter NR 151, Runoff Management
The rule adds new and modifies existing performance standards that address nonpoint source pollution from both agricultural and non-agricultural sources, including transportation. The new performance standards include:
•
a setback from waterbodies in agricultural fields within which no tillage would be allowed;
•
a limit on the amount of phosphorus that may run off croplands as measured by a phosphorus index;
•
a prohibition against significant discharge of process wastewater from milk houses, feedlots, and other similar sources;
•
a standard that requires implementation of best management practices designed to meet a load allocation specified in an approved Total Maximum Daily Load (TMDL).
Modifications are made to the agricultural performance standards addressing cropland soil erosion control, nutrient management and manure storage. The rule also changes the non-agricultural performance standards that address construction site erosion control, post-construction storm water management and developed urban areas. The subchapter addressing transportation performance standards is moved to the non-agricultural performance standards sections. The agricultural implementation and enforcement sections are modified to clarify cost-share eligibility and to better align with the department's stepped enforcement procedures. Some definitions are added and other definitions that are no longer used are deleted.
Chapter NR 153, Targeted Runoff Management And Notice Of Discharge Grant Programs
This existing rule contains policies and procedures for administering targeted runoff management grants to reduce both agricultural and urban nonpoint source pollution. Grants may be used to cost share the installation of best management practices as well as to support a variety of local administrative and planning functions. Projects are selected through a competitive scoring system and generally take two to three years to complete.
The revisions create four project categories for the targeted runoff management grant program instead of one category in the existing rule. The categories include large-scale/TMDL implementation, large-scale/non-TMDL control, small-scale/TMDL implementation and small-scale/ non-TMDL control projects. The rule will help the state make progress in meeting its obligation to address impaired waters by focused funding of projects addressing TMDLs.
To implement recent statutory changes to the grant program, the rule creates a mechanism outside the competitive TRM process to fund Notices of Discharge (NODs) issued under ch.
NR 243. Other provisions allow the department more flexibility in allocating grant funds and ensure an equitable scoring system. Portions of ch. NR 153 are repealed and recreated to accommodate the newly created categories, to eliminate or add definitions, clarify and expand restrictions on cost sharing, require the establishment of a local ch.
NR 151 implementation program as a grant condition and allow for additional safeguards in the application documents.
Chapter NR 155, Urban Nonpoint Source Pollution Abatement And Storm Water Management Grant Program
This existing rule contains policy and procedures for administering the urban nonpoint source and storm water management grant program authorized under s.
281.66, Stats. The department may make grants under this program to governmental units for practices to control both point and nonpoint sources of storm water runoff from existing urban areas, and to fund storm water management plans for developing urban areas and areas of urban redevelopment. The goal of this grant program is to achieve water quality standards, minimize flooding, protect groundwater, coordinate urban nonpoint source management activities with the municipal storm water discharge permit program and implement the non-agricultural nonpoint source performance standards under ch.
NR 151. Grants to a governmental unit may be used to cost share the installation of best management practices as well as to support a variety of local administrative and planning functions. The department may also make grants to the board of regents of the University of Wisconsin System to control urban storm water runoff from campuses in selected locations. Projects are selected through a competitive scoring system and generally take one to two years to complete.
The revisions to ch.
NR 155 increase the department's management oversight and accountability of grants while at the same time increase flexibility in how the grants are used. The revisions limit on the amount of money a grantee may receive in a given grant year, increase the department's management oversight of grants by approving all contracts, regardless of cost, provide the department greater flexibility in awarding funds and allow for additional safeguards in the application documents.
The rule also allows the use of local assistance grants to pay for work done by competent in-house staff rather than hiring an outside consultant thus increasing local government's flexibility to control costs. The rule adds requirements that hired consultants be competent in storm water management, all outstanding grants be completed on schedule prior to a new grant award, a final report be submitted and that the department may deny a grant to an otherwise eligible project if there is a potential impact on hazardous sites in addition to historic sites, cultural resources or endangered resources. Other parts of ch. NR 155 are repealed and recreated to define terms, clarify concepts and merge similar sections, giving the department greater flexibility in awarding funds.
Comparison with federal regulations
The rule revisions are consistent with federal regulations that apply to control of nonpoint sources of pollution, animal feeding operations, nutrient management and storm water management. While federal regulations do not apply specifically to cropland practices or livestock operations that have only nonpoint source runoff, there are federal regulations for concentrated animal feeding operations (point sources) that specify control of nutrients entering surface waters. Certain modifications also better align state grant funding priorities with those of the federal government regarding total maximum daily loads.
The rule's phosphorus index performance standard is based on national policy and guidelines on nutrient management issued by the US Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) in April, 1999. The national policy and guidelines suggested the use of one of three phosphorus risk assessment tools, the most comprehensive of which is the phosphorus index. Prior to the adoption of this national policy, states began developing phosphorus-based nutrient management guidelines or regulations. The tillage setback performance standard is based on the phosphorus index calculation that assumes no tillage to the edge of the bank. The performance standard specifying BMPs to meet the load requirements of approved TMDLs will help the state to control nonpoint source pollutants to achieve federally required and approved TMDLs. The control of process wastewater discharge is of sufficient concern that USDA has developed technical standards for management of process wastewater.
Comparison of similar rules in adjacent states
In general, the adjacent states do not use statewide performance standards specifically designed to address polluted runoff from agricultural sources. However, these states have various regulations and procedures in place to address many of the polluted runoff sources that these rule revisions address. All four states use the phosphorus index in some form but none have proposed using it as a statewide performance standard as this rule does. The rule differs from the adjacent states' rules because it has more detail in its phosphorus index, is more quantitative and has more research to validate it. Also, in Wisconsin, pursuant to s.
281.16, Stats., cost sharing must be made available to existing agricultural operations before the state may require compliance with the standards.
Illinois:
Illinois does not have a tillage setback requirement, but it does offer a property tax incentive for the construction of livestock waste management facilities including the development of vegetative filter strips. The filter strips must be in cropland that is surrounding a surface-water or groundwater conduit, must be part of a conservation plan, and must have a uniform ground cover. The minimum and maximum widths that are eligible for the tax reduction is determined by the slope. Illinois does not allow raw materials, by-products and products of livestock management facilities, including milkhouse waste, silage leachate, and other similar products to be discharged to waters of the state. In addition to tax incentives, Illinois relies on federal Clean Water Act section 319 funds from US EPA to fund nonpoint source projects in the state.
Illinois requires that permit applicants follow a series of technical standards that are in the Illinois Urban Manual for both construction and post-construction. If the developer uses the technical standards they are considered in compliance, unless an inspection indicates that the technical standard is not working adequately. The developer will then need to make changes to their construction site or storm water management plan.
Iowa:
Iowa requires that nutrient management plans for livestock operation of 500 or more animal units be based on the phosphorus index. The rule's version of the phosphorus index uses Iowa's “quasi-modeling" approach but the equations are based on Wisconsin research. Iowa does not require a separation distance between tillage activities and waterbodies. Iowa prohibits discharge to waters of the state, polluting waters of the state and discharge to road ditches.
Iowa does not have a performance standard approach to construction projects, but does require BMP implementation. There is no specific goal for post-construction other than to have a storm water management plan similar to the way Wisconsin's program was set up before ch.
NR 151 was promulgated in 2002. The requirement on the municipality is to try to control runoff from new development. There are no specific goals.
Iowa is making an effort to coordinate the development of TMDLs with the implementation of water quality improvement plans based on TMDLs. There is not yet a separate funding source specifically for implementing TMDL plans, but there are several different funding sources currently used for watershed project implementation, including section 319 funds and three different sources of state-funded watershed implementation funds. There is also a state-funded lakes restoration fund which may be partly used for watershed restoration work. Wherever possible, watershed projects try to leverage EQIP and other federal sources of funds.
Iowa does not currently offer a separate source of funds for Animal Feeding Operation BMPs in response to a Notice of Discharge violation. However, Iowa does not preclude a producer from funding because of a Notice of Violation (NOV), except in the case where the NOV results in the requirement for an NPDES permit. Funding from State Revolving Funds and federal section 319 cannot be used for BMPs requiring an NPDES permit, but can be used for non-permitted BMPs. EQIP funds in Iowa are currently allocated such that counties with water quality livestock projects receive 40 percent of the eligible points when scoring for EQIP funding. The Iowa Department of Agriculture and Land Stewardship has a nutrient management program designed to offer financial assistance for livestock producers for manure management, but the program has not been funded in over 10 years.
Michigan:
Michigan does not require a separation distance between tillage activities and waterbodies. The state's rules regarding process wastewater only apply to permitted concentrated animal feeding operations, but discharges from smaller farms are generally prohibited as a violation of water quality standards.
Within permits that apply to municipal separate storm sewer systems (MS4s), Michigan has similar performance standards for post-construction total suspended solids control and peak flow control in new development. It has a minimum treatment volume standard of one inch (or ½ inch if technically supported) where they must achieve an 80 percent total suspended solids reduction. It also has a channel protection criteria where the post-peak flow rate and volume must match the pre-peak flow rate and volume for all storms up to the 2-yr, 24-hr event. The peak flow control standard is more stringent than this rule because it also controls volume. Wisconsin is trying to control streambank erosion by controlling a greater number of smaller storms. Michigan has also identified some water bodies that are not required to meet the channel protection standard, similar to Wisconsin's approach. Michigan has an option to use low impact development to meet these two standards, which is very different from Wisconsin. However, unlike Wisconsin, Michigan is only implementing these performance standards on new development in municipalities that have an MS4 permit. Also, if the municipality had an ordinance in place prior to this rule that addressed water quality for new development even if the performance standard was not included, they are grandfathered in.
Michigan has a pass through grant (section 319 and Clean Michigan Initiative funds) that places a priority on projects that will restore impaired waters or achieve progress toward meeting TMDL load reductions. Michigan does not have a program similar to the rule's mechanism to fund NODs outside of a competitive grant process.
Minnesota:
Minnesota does not have a tillage setback requirement along all waterbodies in agricultural areas, but the state does require a 16.5 foot (one rod) grass strip along certain public drainage ditches as well as vegetated strips, restored wetlands, and other voluntary set-aside lands through federal, state and local programs. For process wastewater, Minnesota rules place a limit of less than 25 mg/l BOD5 (biological oxygen demand) that can be released to surface water and, if released to a leach field, the threshold is less than 200 mg/l BOD5.
For non-agricultural practices, Minnesota recently reissued construction permits that require infiltration and the need for additional BMPs when sites are located near s. 303 (d) or outstanding resource waters. Its permit generally is more prescriptive in terms of how to design a BMP for optimal control, but it is not usually presented as a performance standard which would provide more flexibility. Based on Minnesota's documentation, it appears to require BMPs that will achieve an 80 percent total suspended solids reduction and ones that will infiltrate the first half inch of runoff from impervious surfaces. Minnesota requires more BMPs, including temperature control, if the receiving water has special needs such as ORW/ERW waters or s. 303 (d) waters.
Minnesota provides funding for TMDLs through its Clean Water Legacy Act and section 319 of the federal Clean Water Act. The state does not have a funding mechanism to fund notices of discharge specifically, but is looking for ways to provide more financial support for runoff from feedlots. There is a state cost-share program which is used alone or in combination with federal cost share.
