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June 17, 2016Client Alert

Wisconsin DNR Initiates Significant Agricultural Non-Point Pollution, CAFO Rulemaking

The Wisconsin Department of Natural Resources (WDNR or the Department) took the first step toward revising existing rules applicable to Concentrated Animal Feeding Operations (CAFO) and other agricultural producers in the state by issuing two Statements of Scope (WT-15-16 and WT-14-16) that outline significant revisions to Wisconsin’s non-point source pollution and CAFO permitting rules. This rulemaking effort is likely the result of increased public pressure to address groundwater quality concerns in certain areas of the state alleged to be related to agricultural practices. While the scope statements themselves do not create any legally binding obligations, they signify regulatory changes WDNR will be seeking in the coming months.

The scope statements outline WDNR’s intent to pursue concurrent revisions to the non-point source pollution regulations found in Wis. Admin. Code Ch. NR 151 and certain provisions of the CAFO rule at Wis. Admin. Code Ch. NR 243. To update NR 151, WDNR proposes adding new performance standards and adopting new prohibitions for identified “sensitive areas” (areas with Karst geology and shallow soils over bedrock) of the state. These new performance standards may involve additional or new best management practices for agricultural producers that WDNR concludes are necessary to achieve groundwater protection standards in these areas of the state. WDNR’s scope statement says that it will include a definition of the targeted sensitive areas in the rulemaking— but it is clear these efforts will have a nearly statewide impact.

WDNR is also planning to initiate significant revisions to Chapter NR 243, the CAFO permitting rule in Wisconsin. Specifically, WDNR proposes to update the rule to:

  • reference more current federal Natural Resources Conservation Service technical standards;
  • redefine the term “wetland;”
  • add maximum hydraulic application rates for manure based on soil type and thickness;
  • include total maximum daily load allocations in CAFO permits;
  • address land application of manure through irrigation;
  • implement the new performance standards developed in NR 151; and
  • make other various significant revisions.

These numerous changes indicate WDNR is pursuing a set of proposals that could have significant economic and regulatory impacts on every CAFO in the state.

The scope statements must be approved by the Governor and Natural Resources Board before WDNR may begin the drafting process. The Governor is expected to approve these scope statements quickly, but the Natural Resources Board is not expected to consider this matter until its August meeting. There will be opportunities for formal stakeholder input throughout the rulemaking process, in addition to many informal opportunities for input by our attorneys and government relations team.

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