• ASCE and other private sector-developed engineering practice standards.
• State agency (DNR, DOT) erosion control standards for construction sites and storm water management.
• UW-Extension publications including fertilizer recommendations, milking center waste water management, rotational grazing, and soil and manure testing.
• NRCS standards for determining soil erosion (RUSLE 2, WEPS).
Copies of these standards will be on file with the Department and the Legislative Reference Bureau. The Department has discontinued the practice of including key documents as appendices and will utilize its website to indicate where documents may be obtained.
Land and Water Conservation Board
The Land and Water Conservation Board has reviewed this rule as required by s. 92.04(3)(a), Stats. Summary of, and Comparison with, Existing or Proposed Federal statutes and Regulations
NRCS has adopted standards for conservation practices cost shared by NRCS. Current Department rules incorporate many NRCS standards by reference. In most cases, the standards apply only to conservation practices cost shared with Department funds. But in some cases (such as nutrient management), Department rules incorporate the NRCS standards as mandatory pollution-control standards. Enforcement of these mandatory standards is generally contingent on cost-sharing (there are limited exceptions).
While NRCS sets national standards, standards vary, to some extent, between states. NRCS coordinates its Wisconsin standard-setting process with the Department, DNR, counties, and others. For purposes of Wisconsin’s soil and water conservation program, the Department may incorporate NRCS standards as written or may modify the standards as appropriate.
NRCS certifies engineering practitioners who design, install, or approve conservation engineering practices cost-shared by NRCS. The Department certifies practitioners who perform similar functions under the Department’s rules. The Department’s proposed rule revision enables the Department to simplify the process for cancelling a conservation engineer’s certification if agreed to in writing. The rule also provides for a person with the appropriate level of NRCS job approval authority to certify in writing that the practice complies with this rule.
The U.S. Department of Agriculture administers a number of federal programs that offer voluntary conservation incentives to farmers. The Environmental Quality Incentives Program (EQIP) is a key program offering cost-sharing for conservation improvements, including nutrient management plans, manure storage improvements and other conservation practices. As a result of confidentiality requirements, federal cost-sharing provided to landowners through this and other NRCS cost share programs cannot be publicly disclosed. Without accurate historical data about past use of NRCS cost-sharing to implement state conservation standards, it is difficult to account for the role these funds may play in the future.
Comparison with Rule in Adjacent States
This comparison examines how surrounding states are addressing issues related to agricultural runoff and nutrient management planning and regulation and its relationship with farmland preservation activities. 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 this rule revision addresses. All four states use the NRCS 590 Nutrient Management Standard to steer their implementation of agricultural nutrient management, but none use it to the extent of Wisconsin’s nonpoint program. All four states use the phosphorus index in some form but none use it in the same manner as NR 151 provides. For example, nutrient management strategies in Michigan are implemented as part of the state’s Generally Accepted Agricultural and Management Practices (GAAMPs). Wisconsin’s approach differs from the programs in adjacent states in that it has more detail in its state nutrient management standard and applies to more small and medium size farming operations than in other states. 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. Cost sharing is often tied to compliance responsibilities in adjacent states, but there are instances where farmers must meet standards other than the phosphorus index as part of regulatory programs. Illinois
Using a different framework and programming, Illinois implements several standards similar to those adopted in Wisconsin. In addition to implementing a phosphorus index for large livestock operations, Illinois encourages voluntary participation in nutrient management for small and medium operations and only requires the use of the PI in areas draining to impaired waterbodies.
While Illinois has a statewide farmland preservation program in which landowners may restrict the use of their land to agricultural or related uses in exchange for tax credits, the program does not include conservation compliance requirements.
Iowa
Like Illinois, Iowa requires that manure management plans for livestock operations of 500 or more animal units be based on the phosphorus index. Iowa nutrient management planning includes a nitrogen leaching index and, like Wisconsin, includes restrictions on manure applications near surface water, groundwater conduits, and frozen soil. See Iowa’s website at: http://www.iowadnr.gov/portals/idnr/uploads/afo/fs_desncriteria_medcafo.pdf While Iowa operates a county-based statewide farmland preservation program in which landowners may restrict the use of their land to agricultural or related uses in exchange for tax credits, the program does not include conservation compliance requirements.
Michigan
Michigan relies on GAAMPs [see Generally Accepted Agricultural and Management Practices for Manure Management and Utilization (January 2012)] to support the Michigan Agriculture Environmental Assurance Program (MAEAP), which includes a compliance verification process that ensures nuisance protection to farmers under Michigan’s Right to Farm law. GAAMPs covers standards similar to those in Wisconsin including standards for nutrient management. These standards are implemented as part of the state’s right to farm law and its complaint investigation program. The state assesses problems identified through complaints, and farmers must take corrective action to earn nuisance protection under the right to farm law. Michigan uses a risk assessment formula to rank a field’s risk for runoff and allows farms to use conservation practices to reduce the risk for those fields, thereby allowing farmers to apply manure in the winter.
While Michigan has a statewide farmland preservation program in which landowners may restrict the use of their land to agricultural or related uses in exchange for tax credits, the program does not include conservation compliance requirements
Minnesota
Minnesota requires a manure management plan for farms greater than 100 animal units if the farm requests a permit for one of several state programs. Like Wisconsin, the plans do not need to be submitted annually but need to be available upon request. Minnesota also utilizes setback from surface and groundwater features to reduce the risk of nonpoint contamination.
Under its feedlot program, Minnesota imposes mandatory requirements on about
25,000 registered feedlots. This program requires feedlot owners, ranging in size from small farms to large-scale commercial livestock operations, to “register with the MPCA, and meet the requirements for runoff discharge, manure application and storage, and processed wastewater.”
While Minnesota has a statewide farmland preservation program in which landowners may restrict the use of their land to agricultural or related uses in exchange for tax credits, the program does not include conservation compliance requirements.
Summary of Factual Data and Analytical Methodologies
The Department participated in the Wisconsin USDA NRCS development of the 2015 version of the Wisconsin 590 Nutrient Management Standard with technical assistance from agronomists, farmers, UW scientists, and agency staff. In Wisconsin, the 590 Standard uses the current 2012 version of UW Pub. A2809 Nutrient Application Guidelines for Field, Vegetable and Fruit Crops to determine the crop’s nutrient needs and includes other restrictions required of NM plans developed for: Department of Natural Resources (DNR) – Notice of Discharge or Wisconsin Pollution Discharge Elimination System permits for >1000 animal unit operations; Ordinances for manure storage or livestock siting; Department cost share or Farmland Preservation; DNR cost share; USDA cost share; or voluntary reasons. Currently about 2.9 million acres are implementing nutrient management plans, which leaves 6.27 million acres yet to have plans developed. The cost share rates of $7 per acre increased to $10 per acre due to the additional costs and spreading restrictions. With 6.27 million acres yet to have a NM plan, at $3 per acre, an additional $19 million estimate for the cost of full implementation or $1.9 million annually for the next ten years. If these landowners are offered 70% cost-sharing, they would be responsible for paying 30% of the $10 cost per acre or about $2.7 million annually.
Analysis and Supporting Documents Used to Determine Effect on Small Business or in Preparation of an Economic Impact Analysis
The Department worked with all federal and state agencies and stakeholders, including farmers, agronomists, and conservation staff to update the current federal standard, which resulted in the 2015-590 Nutrient Management Standard. Adopting the 2015-590 Standard was recommended based on the desire for one standard to apply to farms rather than varying federal and state standards. The changes from the 2005-590 to the 2015-590 were compared for cost of implementation.
Effects on Small Business
Most impacts of this rule will be on farmers, a great majority of whom qualify as “small businesses.” The analysis of the impacts on farms takes into consideration the following factors:
• Most farmers will be insulated from some of the costs of implementation by the state’s cost share requirement and the limited state funding available to provide cost-sharing.
• For farmers receiving farmland preservation tax credits, this rule provides farmers flexibility to minimize the financial impacts related to compliance (which range from $8 to $12 million state-wide), including a delay in the effective date for compliance with the 2011 DNR standards, the use of performance schedules, pursuit of cost-sharing for which they are eligible, use of a tax credit to offset some implementation costs, or if needed, withdrawal from the farmland preservation program to avoid unmanageable costs.
The proposed rule changes will have small, but positive impacts on businesses other than farmers. Those businesses include nutrient management planners, soil testing laboratories, farm supply organizations, agricultural engineering practitioners, and contractors installing farm conservation practices. The Initial Regulatory Flexibility Analysis, which will be filed with this rule, provides a more complete analysis of this issue.
Department Contact
Sara Walling
Department of Agriculture, Trade and Consumer Protection
P.O. Box 8911
Madison, WI 53718-8911
Telephone (608) 224-4501
Place Where Comments are to be Submitted and Deadline for Submission
Questions and comments related to this rule may be directed to:
Sue Porter
Department of Agriculture, Trade and Consumer Protection
