Rule No.: Relating to: Rule Type: STATEMENT OF SCOPE Department of Natural Resources Concentrated Animal Feeding Operation (CAFO) rule revisions to update references to current NRCS Standards and Construction Specifications; to update for consistency with other current rules and statutes; to incorporate workgroup results; to make corrections and clarifications; and to streamline the regulatory process. The proposed revisions are in ch. NR 243, Wis. Adm. Code, Animal Feeding Operations and apply to CAFOs that are subject to a WPDES Permit for protection of water quality. Permanent 1. Finding/nature of emergency (Emergency Rule only): Not Applicable 2. Detailed description of the objective of the proposed rule: Chapter NR 243 is proposed to be revised to improve compliance with Wisconsin?s water quality standards and groundwater standards. Changes will also include updates to technical standards, incorporation of livestock performance standards and targeted standards, revisions to permit processing, application and reporting requirements, additional land application requirements, revisions to specific practices at the production area, definition changes and other related housekeeping changes. 3. Description of the existing policies relevant to the rule, new policies proposed to be included in the rule, and an analysis of policy alternatives: a. b. NRCS Standards and Construction Specifications Reference Update: All of the NRCS Standards referenced by the current rule are out of date. The current rule also lacks reference to standards developed since the last revision to NR 243. The current rule references NRCS Standards that apply to all of the following: 0 Design criteria for storage reception tanks, piping and pumping systems used to contain and transfer manure and other process wastes managed at a CAFO. 0 Requirements for nutrient management plans, which are plans that describe the methods, rates and field locations for application of manure from a CAFO, and application of other nutrients. It is proposed to reference the NRCS Standards that are the most current at the time of public hearing. The NRCS Standards that are currently incorporated by reference at 5. NR also include other materials such as the appropriate rainfali data. Chapter NR 243, Table 1, lists probabie 25-year and loo?year, 24?hour rainfall depths for each Wisconsin County. Table 1 is proposed to be revised to be consistent with updated rainfall depths and an updated design storrn type, known as Atlas 14, developed by NRCS and NOAA. Consistency with Other Current Rules and Statutes: Since the last revision to ch. NR 243, inconsistencies with other rules and statutes have been identified either during implementation or as other rules and statutes changed, including but not limited to the following: (1) Propose revision to the definition of ?wetland? in 3. NR 243.03(75) to be consistent with s. Wis. Stats, which references the meaning given in s. 2332(1), Wis. Stats. Rev.05/19/2016 (2) Propose revision to add public notice requirements related to the Nutrient Management Plan (NMP), as well as to define substantial revision to an NMP, to be consistent with Federal Regulations. (3) Review ch. NR 151 agricultual performance standards and definitions that apply to livestock operations for consistency with ch. NR 243, and incorporate performance standards and definitions as may be appropriate such as the definition of "site susceptible to groundwater contamination?. (4) Section NR 243.14 (2) is proposed to be revised to add maximum hydraulic application rates, based on site soil type and thickness over saturation and bedrock, such as is in the currents. NR 214.17, Table 3. (5) Section NR last Note, is proposed to be revised to update the department website reference. (6) Propose rules to include TMDL allocations in CAFO WPDES Permits. (7) Consider additional practices to reduce pollutant load to impaired waters (303(d) listed), and to waters classified as ORW or ERW. Incorporate Targeted Performance into ch. NR Propose revisions to incorporate by reference anticipated new Targeted Performance Standards into ch. NR 243. The proposed revisions to ch. NR 151 to develop Targeted Performance Standards are addressed in a separate scope statement. It is important that these practices be implemented in CAFO NMPs. Mnure Irrigation Revisions: Add new language under s, NR 243.14 to address land application of manure through irrigation. The proposal is to consolidate sections where irrigation is currently addressed, and to incorporate where appropriate the recommendations of a workgroup on manure irrigation practices and the research findings. Corrections and Clarifications: Accurate and clear information is important to achieve compliance with water quality standards. Therefore, in addition to substantive revisions, revisions to ch. NR 243 are aiso proposed to make corrections, and provide clarifications, including but not iimited to the following. (1) Section NR and/or (3) are proposed to be revised to specify a percentage of "extra land? that is required in the NMP, and to require land control documentation by listing acceptable options. (2) Section NR 243.03 is proposed to be revised to add a definition of ?limited acreage?, or 5. NR is proposed to be revised to add an explanation of the term. (3) Section NR 243.13(2) is proposed to be revised to clarify that a bermed area, such as an infiltration area, is acceptable to prevent discharge up to the prescribed rainfaii event. (4) Consider rule revisions to prevent over application of manure and other nutrient sources, such as by improving the ability to identify fields that have multiple users and ensure all nutrient applications are accounted for. (5) Section NR is proposed to be revised to clarify setback requirements. (6) Propose revisions to allow the use of additional tools to verify depth to bedrock in fields. (7) Consider whether additional references to ch. NR 108 are appropriate in ch. NR 243 for plans and specifications submittais. (8) Consider specifying by rule industrial by-products, chemical additions and substrates (off-site, non?agricultural wastewaters), that may be used or accepted without need for department approval. (9) Consider minor revisions to CAFO owner inspections, recordkeeping and reporting requirements to protect surface and groundwater quality. (10) Make minor changes to the notices issued and procedures under subch. ill of NR 243. f. Streamline the Requlatorv Process: In addition to substantive revisions to improve compliance with Wisconsin?s water quality standards, revisions to ch. NR 243 are also proposed to streamline the regulatory process. These include: Consider requiring the use of additional forms, such as checklists and reporting forms; requiring location identification by coordinates; and requiring eiectronic submittai of information. Examples of forms include checklists the department has developed for agricultural consultants to guide the Nutrient Management Plan submittals, and engineering submittais such as Plans and Specifications (for proposed facilities to be constructed at a production area). Consider revisions to Post- Construction Report submittal requirements to specify information necessary to ensure facilties as constructed are protective of water quality. 4. Detailed expianation of statutory authority for the rule (including the statutory citation and language): Section Wis. Stats, provides that a state agency, "may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute,? subject to certain restrictions. Chapter 281, Wis. Stats, Water and Sewage, Subchapter ll Water Resources, provides the Department?s authority to promulgate rules directed at water pollution sources, to protect, maintain and improve water quality. This authority is explicitly conferred in ss. 281.16, and Wis. Stats. Chapter 283, Wis. Stats, Pollution Discharge Elimination, provides the Department?s authority to promulgate rules to establish, administer and maintain a state pollutant discharge elimination system to protect water quality and implement the requirements of the Federal Water Pollution Control Act Amendments of 1972. Pursuant to s. concentrated animal feeding operations are definited as point sources. The Department's authority in chapter 283is explicitly conferred as follows: 0 Section 283.11, Stats, provides authority to promulgate rules to comply with federal standards 0 Section Stats, provides authority to include more stringent limitations in permits when necessary to meet water quality standards or other federal or state requirements Section 283.31, Stats, provides authority to include terms and conditions in a permit to comply with water quality standards, ground water standards and federal requirements. Section 283.37, Stats, provides authority to establish permit application requirements 0 Section Stats, provides specific permit processing procedures for modifications to nutrient management pians Seciton 283.55, Stats, provides authority to promulgate rules for monitoring and reporting requriements 5. Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule: The total state employee time is estimated at 3,000 hours. This includes 1,000 hours each for two staff people, and 1000 hours for all others involved (rules coordinator, first line supervisor, attorney, etc, through the DNR Secretary). 6. List with description of all entities that may be affected by the proposed rule: Livestock operation owners (specifically CAFOs), agricultural consultants serving CAFOs, and the public. 7. Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule: Under the Clean Water Act and federal regulations (40 CFR 122.23), CAFOS are required to obtain WPDES permits. The proposed changes to the rules are not related to any changes in federal regulations. Many of the proposed changes are related to protection of state groundwater standards and surface water standards. The updates to technical standards relate to plans and specification reviews of CAFO facilities that are conducted pursuant to s. 281.41, Stats. USEPA does not conduct plan and specification reviews. 8. Anticipated economic impact of implementing the rule (note if the rule is likely to have a significant economic impact on small businesses): It is estimated that the economic impact of this rulemaking would be ?moderate? (between $50,000 and $20 million per year, combined for all impacted stakeholders). Wisconsin has nearly 300 large concentrated animal feeding operations (CAFOs) that are the subject of this proposed rule revision. Every livestock operation in Wisconsin is believed to be a ?small business? (less than 500 employees). 9. Anticipated number, month and locations of public hearings: The Department anticipates holding public hearings near Madison and Oshkosh. In addition, a webinar hearing could also be held. The months of May- June 2017 have been selected for hearings, based on the anticipated rulemaking schedule. Contactferson: Gretchen Wheat, (608) 264-6273 Cr/Sr/(a Date Submitted