Expanded Prohibited Practices on the Farm

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January 27, 2010

Rules were made to be . . . ? In the complex world of farm regulation, rules were made to be acted upon and then re-created, modified, and expanded. A significant revision of existing rules that affect farming, particularly dairy producers, is underway. As part of that process, the Wisconsin Department of Natural Resources has issued proposed revisions and has scheduled public informational meetings to explain the proposed revisions and to take public comment before finalizing the revised rules.
The existing and expanded rules are designed to protect water quality from the impacts of farming. Runoff from farms tends to load water bodies with excess nutrients, phosphorus chief among them, which cause algae blooms, decreased dissolved oxygen, and degraded water quality. Following federal and state legislative mandates, the Wisconsin Department of Natural Resources, the Wisconsin Department of Agriculture, Trade and Consumer Protection, and the Wisconsin Department of Transportation, promulgated on October 1, 2002, a complex set of regulations aimed at managing runoff in transportation, non-agricultural, and agricultural sectors. At that time the rules package established cropland performance standards (in the forms of erosion control and nutrient management), livestock performance standards (in the forms of manure management storage facilities and clean water diversions), and manure management prohibitions.
Enforcement of the performance standards was conditioned on the availability of cost sharing and determinations of “new” or “existing” crops or facilities. For example, existing croplands not part of the cost sharing program are not enforceable by cropland performance standards, unless those standards were already being met or if best management practices could be implemented without the necessity of cost sharing. Likewise, the livestock performance standards for existing livestock operations were not enforceable unless and until such operation was determined to be existing and cost sharing was made available or if they were already being met.
Croplands and livestock operations determined to be new were subject to the performance standards and prohibitions irrespective of the availability of cost sharing. The county land conservation staff has been, and continues to be, key to the determinations of “new,” “existing,” and whether cost sharing was available. If you have any question about the status of your operation and the availability of cost sharing, please contact your county conservation office.
The manure management prohibitions adopted in 2002 were:

No overflow of manure storage facilities;
No unconfined manure pile in a water quality management area, which is defined as 1,000 feet of a lake or 300 feet of a stream;
No direct runoff from a feedlot or stored manure into the waters of the state (the term “waters of the state” includes wetlands and groundwater); and

No unlimited access by livestock in a location where high concentrations of livestock prevent the maintenance of adequate sod or self-sustaining vegetative cover. Now the 2002 rule package is up for periodic review.

Several proposed revisions could impact dairy producers and other farmers. Among the significant provisions are:

A 20 foot tillage setback from navigable waters. The 20 foot setback would prohibit tilling within 20 feet of any “navigable” water. This provision could operate to significantly reduce the amount of land available for tillage because even intermittent waterways may be determined to be “navigable.” There is no provision to compensate for the loss of cropland. This proposed rule would not prohibit harvesting crops within the 20 foot setback, but only if the area supports self-sustaining vegetative cover and is not tilled.
Expansion of erosion controls to “pastures.” Erosion control performance standards are designed to minimize the loss of soil and runoff of sediments and nutrients into streams and lakes. Croplands are subject to a rate of erosion that is considered to be “tolerable” for a particular soil type. The proposed rules would expand this “(T) rate” to include pastures and winter grazing areas as well. In addition, all of these areas would be subject to a maximum average score of 6 on the phosphorus index. There may be uncertainty as to how, or even if, compliance may be achieved.
Best management practices would have to comply with TMDLs. Total maximum daily loads (“TMDLs”) are scientific studies of impaired bodies of water. The purpose of the TMDL process is to ascertain how much pollution a body of water can receive and yet be improved allowing it to be removed from the list of impaired water bodies. The effect of TMDLs as they are promulgated is to reduce the amount of pollutants that a permit holder may discharge in accordance with the permit terms. Certain large livestock operations requiring such permits must be renewed every five years. Accordingly, the discharge limits in these permits can be expected to become more stringent as TMDLs are completed.
Process waste water would have to be controlled. The proposed rules would prohibit any significant discharge of process waste water, such as feed storage leachate and milk house waste, to the waters of the state. This process water would have to be managed so as to avoid mingling with ground or surface waters, which could entail cost.

The rules package can be downloaded from the State of Wisconsin’s Administrative Rules section of the Web site. Members of the public may submit comments online at that website or by mailing them to Carol Holden, WDNR – WT3, P. O. Box 7921, Madison, WI 53707-7921. Public informational hearings are being held around the state, follow this link for a complete list.
These one hour informational sessions will be followed by an opportunity for members of the public to provide their comments. The revised rules package is important to agriculture and the implications are far reaching. As a result, you may wish to have your voice heard in this process.
If you have questions regarding the above, please contact Russell Wilson, the author of this article, or any of the attorneys in the Business Transactions Practice Group, or on the Agriculture Focus Team of Ruder Ware.

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