Governor Evers Directs DNR and DATCP to Address Nitrate Contamination in Ground Water

 By: Gillian Pomplun 8/2/19 SW News4u

SOUTHWEST WISCONSIN - At a press conference held in Watertown on Thursday, August 1, Governor Tony Evers announced additional efforts by the Wisconsin Department of Natural Resources (DNR) and the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) to address nitrates in ground and surface water in the state.

Evers was joined at the press conference by DNR Secretary designee Preston Cole, DATCP Secretary designee Brad Pfaff, and State Representative Katrina Shankland, who has served as co-chair of the State Assembly Speaker’s Task Force on Water Quality.

“In traveling around the state to Water Quality Task Force hearings, basically, I heard the same thing everywhere we went,” Shankland said. “We were told that clean drinking water is one of the most important things the state can provide to its citizens, they believe the state is obligated to protect water quality, and they want the state to do more to prevent water contamination through implementing nutrient management plans designed to reduce application of nitrogen.”

Specifically, the two agencies will engage in a 30-month process to pursue rule making to develop targeted agricultural runoff standards for areas of the state with an underlying geology that puts ground and surface water quality at risk.

“Today, I am announcing an initiative to address nitrate contamination from agricultural runoff in areas of the state where the soils are permeable and more vulnerable to contamination of drinking water,” Evers said. “Farmers in the state are already showing us that they can change the way they farm and take big steps toward protecting our water, and our goal is to take the necessary steps to prevent groundwater from being contaminated in the first place.”

The initiative aims to develop targeted performance standards for agricultural runoff in areas of the state where the current NR151 rule for runoff management, often described as ‘one-size-fits-all,’ are not sufficient to fulfill the state’s responsibility under the federal  ‘Clean Water Act’ to protect drinking water.

Farmers as partners

DATCP Secretary Brad Pfaff, began his comments by acknowledging that family farmers in the state are suffering under difficult economic conditions for the last four-to-five years.

“For our family farmers, every penny counts, and they have to spend their money wisely and responsibly,” Pfaff said. “Through DATCPs Producer-Led Watershed Protection grants, farmers are already showing they can lead the way in testing and implementing best management practices targeted to the particular needs of their watersheds.”

Pfaff said that DATCP recognizes that the state needs to work with farmers to evaluate how we are using nitrogen as a nutrient.

“We are committed to working with producers and processors to implement science-based nutrient management standards for fertilizers and manure spreading,” Pfaff said. “I look forward to working with DNR Secretary Cole as we continue to provide our family farmers with up-to-date standards and tools they can apply to protect the state’s waters from nitrate contamination.”

To this end, DATCP will:

• engage in a public input process around proposed changes in the state’s Livestock Facility Siting Law, ATCP 51, with the goal of updating the law to better protect ground and surface water;
• distribute $350,000 to 23 entities across the state in 2020 through DATCPs ‘Nutrient Management Education Grant’ program to help farmers understand how to minimize nutrients lost in their farming operations;
• increase funding to the UW-System to support nutrient management education and training throughout the state;
• provide two million dollars in cost sharing for farmers to implement nutrient management plans.

Sensitive Areas

DNR Secretary Preston Cole specified in his discussion of the rulemaking process that his agency would lead, that the new targeted standards would “follow the Silurian dolomite around the entire horseshoe-shaped area of the state where it is present” and would affect Southwest Wisconsin. He specifically mentioned Grant, Iowa and Lafayette counties where the Southwest Wisconsin Groundwater and Geology study (SWIGG) is currently bringing to light problems with water quality.

In December of 2017, the Wisconsin Natural Resources Board (NRB) passed the ‘Sensitive Areas’ revision to the NR151 rule for 16 counties in eastern Wisconsin with an underlying silurian dolomite or ‘karst’ geology.

In the proposal before the NRB at that time, the proposed order, known as ‘WT 15-16,’ stated the following:

“The department has found that, in areas of the state where Silurian bedrock is present, groundwater and surface water standards will not be attained by imple-menting the statewide agricultural performance standards and prohibitions in ch. NR 151, Wis. Adm. Code.

“This is because Silurian bedrock has the capacity to allow rapid transport of contaminants without attenuating those contaminants. Silurian bedrock is located in the eastern portions of the state, including areas in Brown, Calumet, Dodge, Door, Fond du Lac, Kenosha, Kewaunee, Manitowoc, Milwaukee, Out-agamie, Ozaukee, Racine, Sheboygan, Walworth, Washington and Waukesha counties.”

The document goes on to state:

“This rule identifies ‘Silurian bedrock’ as the targeted area where certain rock formations are overlain by soils of 20 feet or less and establishes performance standards that will apply. The performance standards in the proposed rule are designed to minimize the risk for pathogen delivery to groundwater. Within the Silurian bedrock area, the rule sets forth manure spreading rates and practices that vary according to the soil depth and texture. The most restrictive practices apply to those limited areas of the highest risk for pathogen delivery. Less restrictive requirements apply in areas with 5 to 20 feet to bedrock.”

This NRB action ignored other areas of the state (essentially a horsheshoe-shaped area that starts in the Green Bay area, runs down the eastern side of the state, along the southern part of the state, and then up the western side of the state) that are also dominated by Silurian bedrock or ‘karst geology.’

The prevailing rationale for the decision not to implement the targeted standards in these additional areas was the lack of scientific studies of bedrock and water quality. The Central Sands area of the state is another distinct area where the overlying sandy soils make groundwater vulnerable.

That situation has changed with the release of results from the SWIGG study in recent months. Another similar study is being developed for Crawford, Vernon and Richland counties – the Driftless Area Water Study (DAWS).

Five of the completely karstic counties in the state are located in Southwest Wisconsin, two in Western Wisconsin, two in South Central Wisconsin, and only one in Eastern Wisconsin.

Counties in the state where virtually the entire area is karstic include Crawford, Door, Grant, Green, Iowa, Lafayette, LaCrosse, Pierce, Richland and Vernon. Counties in the state where most of the area is karstic include Dane, Dodge, Rock, St. Croix and Trempealeau.

Counties where part of the area is karstic include Buffalo, Fondulac, Jeffer-son, Kewaunee, Manitowoc, Marinette, Monroe, Oconto, Ozaukee, Outagamie, Pepin, Sauk, Shawano, Sheboygan, Walworth, Washington, Waukesha and Winnebago.

Rule provisions

The rulemaking direction provided to DNR and DATCP in 2017 for 16 eastern counties was targeted to the particular needs of that area. While areas in other parts of the state share strong similarities, there is no guarantee that the provisions of the rule for places like Southwest Wisconsin will be identical. Nevertheless, the rule developed then gives some insight into the types of changes that may come out of the process. It is likely that in addition to focusing on application of manure, the scope of the rulemaking will be expanded to nitrogen applied to crops as fertilizers, for instance.

As an example of what citizens in Southwest Wisconsin might expect to see come out of the process, in the NRB’s direction to the state to begin special rulemaking in 2017, the order WT 15-16 specified the following:

“Before mechanically applying manure in the Silurian bedrock area, the proposed rule requires a farmer to verify the depth of soils to bedrock where County soil maps provide an initial indication of less than five feet of depth to bedrock. The farmer’s field verification will establish the boundary of areas where the depth is less than five feet and what that depth actually is. This will determine which practices the farmer will need to employ to apply manure on those fields. The methodology to verify depth to bedrock (such as number of borings per acre, time of year taken, etc.) or tools available for this effort is a technical standard, and so will be developed by DATCP rather than DNR. Representatives from DATCP have worked closely with the department in the development of this rule and DATCP is expected to promulgate in ch. ATCP 50 the best management practices, conservation practices or technical standards used to demonstrate compliance with this rule.

“CAFOs in the Silurian bedrock areas will be required to comply with the standards in the rule through their WPDES permit, regardless of any local ordinance and absent cost sharing. Large CAFOs are not eligible for cost sharing under chs. NR 153 and 154, but are required to comply with the livestock performance standards in NR 151. A cross-reference to the targeted performance standard language will be added to ch. NR 243, Wis. Adm. Code.

“Non-permitted farms in Silurian bedrock areas will be required to comply with the standards in the rule in certain limited situations. Where construction of appropriate best management practices is needed for compliance and those practices are eligible for cost share under chs. NR 153 and NR 154, Wis. Adm. Code, non-permitted farms will be required to comply only where cost share is offered. Certain practices are not eligible for cost share under chs. NR 153 and 154, Wis. Adm. Code.  Non-permitted farms may be required to adopt certain changes absent cost share if a local unit of government adopts a local ordinance re-quiring farms to adopt changes consistent with the rule.”