October 28,2019Client Alert

Update on Wisconsin’s Targeted Performance Standard Rule Development for Nitrates

Ever since Governor Evers’ January 2019 declaration of the “Year of Clean Drinking Water,” the Administration has been moving forward with various rulemaking developments targeted toward surface and ground water protection. One such development was a directive issued to the Wisconsin Department of Natural Resources (WDNR) by the Governor at the end of July to propose regulatory changes targeting the presence of nitrates in groundwater. 

Nitrates in groundwater in Wisconsin is a “new” old problem. The Groundwater Coordinating Council has been studying and documenting the incidence of nitrates in groundwater for several years. Sources of nitrates to groundwater can include failing septic systems, the use of chemical fertilizers in agricultural, commercial, and residential settings, and agricultural production practices utilizing organic sources of fertilizers such as livestock manure.

Following this directive, WDNR promptly developed a scope statement providing for the development of targeted performance standards in Chapter NR 151, Wis. Adm. Code, the so-called Nonpoint Rules. You will remember when this provision in NR 151 (NR 151.004) was used to develop targeted performance standards for manure application on lands with shallow soils over Silurian bedrock in certain parts of the state, which took effect July 1, 2018. WDNR staff reported on the progress of the implementation of those targeted performance standards at the October 2019 meeting of the Natural Resources Board.

Governor Evers approved of the scope statement for the targeted performance standard development for nitrates in groundwater on August 9, 2019. On August 27, 2019, the Legislature’s Joint Committee for Review of Administrative Rules (JCRAR) directed WDNR Secretary-designee Preston Cole to hold a preliminary public hearing and comment period concerning the scope statement, suspending all activity on rule development until such public hearing occurs. 

At the October meeting of the Natural Resources Board, the Board approved three public hearings in early November and authorized the acceptance of written comments through November 8, 2019. Additionally, WDNR has begun outreach with various affected stakeholders by scheduling meetings to discuss the proposed approach to the rulemaking. The scope statement indicates that sensitive areas subject to the targeted performance standards will be developed through the use of maps, groundwater quality information, and modeling, and that the targeted performance standards may include modifications required to nutrient management plans, application rates of manure or commercial fertilizers, timing of nutrient applications and setbacks applicable thereto, and additional management practices concerning crop rotations.

We will participate in this process as it moves forward and will provide further updates.

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