NR 243 Will Have Aug. 3 Joint Hearing Before Ag Committees Agri-View: Capitol News

The date has been set for when both the Assembly Agriculture Committee and the Senate Agriculture and Insurance Committee will hold a joint public hearing on the Department of Natural Resources (DNR) revised NR 243 rule.

In case anyone is wondering why NR 243, since it is a DNR rule, is not sent to the Natural Resources committees of the legislature, it's because the law requires it to go to ag committees.

Erin Ruby, research assistant to Rep. Al Ott (R-Forest Junction), chair of the Assembly Agriculture Committee, said Wis. Statutes ch. 13.565 "requires anything dealing with animal waste treatment shall be referred to the Assembly and Senate Agriculture Committees and those committees are to hold a public hearing." That's precisely what those committees will be doing on Aug. 3.

The exact time of the hearing has not been determined but Ruby said it will likely begin at 9 or 9:30 a.m. and be held in one of the capitol's larger hearing rooms.

NR 243 and the EPA

The 72-page rule was unanimously approved by the DNR board at its May meeting. The regulations in NR 243 deal with water quality impacts from Concentrated Animal Feeding Operations (CAFOs) such as requirements for CAFOs (large, medium and small) under the Wisconsin Pollutant Discharge Elimination System (WPDES) program. The WPDES program has been in place since the mid-'80s.

The DNR said it needed to update and revise NR 243 to meet new federal guidelines that are part of the Clean Water Act (CWA) and are administered by the Environmental Protection Agency (EPA).

Not everyone agrees because the Wisconsin rule, in many instances, is more stringent than the federal requirements.

Interestingly enough the EPA has a proposal under consideration that could mean other changes for CAFO rules.

On June 22, the EPA, responding to a recent Second Circuit Court of Appeals decision, issued a proposal to revamp various CAFO rules.

In its Agribusiness Alert of last week, Attorney David Crass, Michael Best & Friedrich LLP, wrote, "if adopted, the revisions would significantly change several aspects of EPA's current CAFO discharge regulations."

Paul Zimmerman, executive director of governmental relations for the Wisconsin Farm Bureau Federation (WFBF) pointed out "the DNR claims in NR 243 that all CAFOs discharge. The EPA does not presume this, so we are looking at this compared to EPA's recent proposal."

Crass said the proposed new EPA rule makes four major revisions:

1. First and foremost, the rule redefines the NPDES applicability provisions: under EPA's new proposal only CAFOs that directly discharge or propose to discharge need to apply for an NPDES permit. CAFOs that only land apply manure, litter, or wastewater do not need an NPDES permit if their only potential discharge is from stormwater runoff. However, if a facility has an actual discharge and failed to obtain a permit, it would be in violation of the NPDES rules and the Clean Water Act. Thus, the rule's preamble provides a list of those Large CAFOs that should consider getting a permit:

Where the CAFO is located in close proximity to water of the United States with land classified in USDA Land Use Capability Classes III through VIII;

Where the CAFO's production area is not designed and operated for zero discharge, including where the containment structure is not designed or maintained to contain all manure, litter, process wastewater, precipitation, and runoff that may accumulate during periods when the facility is unable to land apply;

Where a CAFO that land applies does not have or is not implementing nutrient management planning that is designed to ensure that any land application runoff qualifies for the agricultural stormwater exemption; or

Where the CAFO has had a discharge in the past and has not corrected the factors that caused the discharge.

2. While this first revision loosens the CAFO regulations, the second proposed revision tightens the regulations for those CAFOs that still must obtain a NPDES permit. The rule requires CAFOs to submit a facility-specific nutrient management plan (NMP) with their permit application; permit authorities are then required to review the NMP, allow public comment, and incorporate the NMP's terms into the permit as enforceable elements. A draft NMP template is available on EPA's website.

3. The rule proposes to clarify that water-quality based effluent limitations (WQBELs) are available in permits with respect to production area discharges (except for swine and poultry sectors) and non-precipitation related land application discharges. WQBELs are not, however, available for large CAFO precipitation-based discharges related to land application.

4. Last, but certainly not least, the proposal reaffirms EPA's decision to set the best conventional pollution control technology (BCT) for fecal coliform to be equal to the 2003 CAFO rule's best practicable control technology (BPT) limits.

Crass outlined a number of places where Wisconsin's proposed rulemaking, "continues to be more stringent than the federal rule in a number of important aspects."

The reason Wisconsin's rule can differ from the EPA's, Crass said, "is because Wisconsin is a Delegated Authority State under the Clean Water Act. Therefore federal rulemaking (by the EPA) is interesting but the Wisconsin program is more stringent for Wisconsin producers."

These ways in which Wisconsin is more stringent than the feds include:

Requiring all animal feeding operations that confine more than 1,000 animal units to obtain a permit regardless of whether the CAFO actually discharges or is proposing to discharge;

Mandating a minimum of 180-days storage capacity for liquid manure rather than simply requiring "adequate" storage as is required in the federal rule;

Prohibiting surface application of manure when there is a 70 percent chance or greater of a 1/2 inch rain on non-frozen or non-snow covered ground or a 50 percent chance or greater of a 1/4 inch rain during frozen and snow covered conditions, predicted to occur within 24 hours of the end of the application as predicted by the National Weather Service. All the federal rules require is that records be maintained concerning weather conditions 24 hours before, at the time of and 24 hours after the application;

The proposed Wisconsin rule calculates animal units by aggregating different species and animal sizes into the calculation whereas the federal rule requires calculation only based on one type or size of animal;

The proposed Wisconsin rule incorporates by reference the September 2005 Wisconsin version of NRCS 590 Nutrient Management Code as its performance standard, a new phosphorus-based nutrient management standard. Additionally, the rule includes restrictive nutrient application restrictions far beyond those resource protection restrictions in the 590 Nutrient Management Code. "The rule results in a 'one size fits all' regulatory approach to nutrient management rather than a performance-based system," Crass concluded.

More on EPA proposal

Producers wishing more information on the EPA's proposal can visit: http://www.epa.gov/npdes/afo/revisedrule. Kawana Cohen at EPA can also provide additional information. Her e-mail address is cohen.kawana@epa.gov or by phone 202-564-2345.

The EPA proposal was published in the Federal Register on June 30. The agency is planning to hold six public hearings around the country. The closest one to Wisconsin is set for July 25, in Ames, Iowa, beginning at 9 a.m. and will be held at the Iowa State Center Scheman Conference Center.

Anyone wishing to comment on the EPA proposal may do so in a number of ways. However, they must be received on or before Aug. 14.

To comment online, go to: http://www.regulations.gov and follow the online instructions.

E-mails may be sent to ow-docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-2005-07.

To comment by mail, send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail code 4203M, 1200 Pennsylvania Ave., NW, Washington, DC 20460, Attention Docket ID No. OW-2005-0037.

All comments will be available later online at http://www.regulations.gov.

The best way Wisconsin producers can comment on the proposed NR 243 is by contacting their farm organizations, their elected state representatives and state senators, and/or by showing up on Aug. 3 and being ready to testify about how the proposal would affect their operations.

Cranberry lawsuit

A number of agricultural organizations are expected to once again form an ag coalition to fight Attorney General Peg Lautenschlager's challenge to the right-to-farm law. Last month Lautenschlager said she would appeal the ruling of Circuit Judge John Anderson of Washburn who dismissed an earlier suit against William Zawistowski, a Sawyer County cranberry grower.

Lautenschlager had filed the suit on behalf of 14 out-of-state residents, which charged Zawistowski with creating a public and private nuisance with his Musky Bay cranberry operation. Zawistowski had never been cited by the DNR, the DATCP or any other governmental unit for environmental violations.

In June Zawistowski and his insurance company, Rural Mutual Insurance Company, filed documents in Sawyer County Circuit Court to recover $492,369 in trial expenses from the landowners who had filed the nuisance lawsuit against him.

Of that amount, $310,324 is for attorney fees and $109,962 is for disbursements. Rural Mutual Insurance Company seeks to recover $66,697 for attorney's fees and $5,368 for costs and disbursements.

In their filing request Zawistowski and Rural Mutual say they are entitled to the expenses under the state's Right to farm law. The law allows for recovery of litigation expenses if an agricultural use is alleged to be a nuisance and is not found to be one.

The Wisconsin Farm Bureau Federation's (WFBF) board of directors last month voted to authorize its legal counsel to petition the Wisconsin Court of Appeals to intervene in the appeal by the attorney general against Zawistowski by filing a non-party brief to protect the constitutionality of the state's Right to Farm law.

A non-party brief is for information.

Interstate meat shipments

U.S. Senator Herb Kohl (D-Wisconsin) has introduced new legislation to level the playing field for Wisconsin processing facilities by allowing interstate sales of state-inspected meat and poultry products. Kohl's bill will help spark economic growth throughout Wisconsin's processing industry by allowing them to expand their market share, boost sales and increase income.

"Wisconsin has more state inspected processing facilities than any other state, and these plants are required to meet the same standards as USDA-inspected facilities," the senator said.

"My proposal will level the playing field for these Wisconsin businesses by allowing state-inspected processors and the producers who use them to market their products across state lines. It should be especially helpful for producers and processors that operate near major metropolitan areas in neighboring states, and it will provide consumers with additional choices to purchase domestic food products," he said.

Current law allows foreign-produced meat to be sold anywhere in the U.S. as long as that nation's inspection program is equivalent to U.S. federal standards. However current law does not allow interstate sales of beef, poultry, pork, lamb or goat meat from state-inspected processing facilities that meet federal standards, like Wisconsin's. Kohl's bill would fix this inequity.

Kohl's new bill comes on the heels of his successful efforts to secure federal funding for state meat inspection programs. As the Ranking Member of the Senate Agriculture Appropriations Subcommittee, Kohl helped secure $56,557,000 to support state meat inspection programs in the FY2007 Agriculture Appropriations bill.

For years, the DATCP Board has recommended interstate shipments from state-inspected meat plants be allowed.

Lock and dam system held up

Last week the presidents of four Wisconsin farm organizations signed a letter to newspapers highlighting a request they made to U.S. Senator Russ Feingold (D-Wisconsin) asking him to move forward a bill that would upgrade locks and dams on the Mississippi and Illinois Rivers.

Signing the letter were Bill Bruins, president of WFBF; Bill Oemichen, CEO of Wisconsin Federation of Cooperatives; Tom Novak, president of Wisconsin Corn Growers Association; and Robert Derr, president of Wisconsin Soybean Association.

The farm leaders noted the House of Representatives last summer passed the Water Resources Development Act (WRDA) on a vote of 406-14.

"Among other things, the compromise legislation worked out over several years authorizes the upgrading of the locks and dams on the upper Mississippi River and Illinois River, which is so important to commerce, while providing restoration of the ecosystem," the writers said.

They point out "today, that bill is languishing in the U.S. Senate because of Senator Feingold's insistence on holding up the process with amendments to reform the Army Corps of Engineers."

Last April 10, Feingold met with a group of farm, labor, maritime and cooperative representatives. "At that time, he was supportive of WRDA and was not interested in holding up the bill, however he and Senator John McCain (R-Arizona) had some 'corps reform' amendments they wanted to address," the group recalled.

Meantime, Environment and Public Works Committee Chairman James Inhofe (Oklahoma) and Senator Kit Bond (Missouri) tried to work with Feingold to address his concerns. "When extensive negotiations failed to achieve workable compromises, the two senators introduced two proactive amendments for consideration on the floor concerning project prioritization and independent peer review. These provisions were crafted in a bipartisan spirit and are key to passage of WRDA in the Senate," the ag leaders emphasized.

"We respectfully request Senator Feingold to allow the bill to move forward so renovation of our lock and dam system can begin," is the request.

While the writers said they respect Feingold's passion to reform the Corps, they point out his amendments would in effect:

Stop projects crucial to maintaining a robust water resources program, including modernization on the Upper Mississippi and Illinois River system, and

Impose redundant bureaucratic layers that go far beyond true reform.

"We support the amendments being offered by Senators Inhofe and Bond because they provide a sensible and workable solution on project prioritization and independent peer review," the group said.

Not only does WRDA help farmers who depend on the inland waterway system to deliver their crops to market, it helps Wisconsin businesses who rely on the river to move raw materials and products, they said.

But more than that, the ag leaders call WRDA "a jobs bill." That's because the construction of seven needed locks would create jobs for many skilled trades throughout the Midwest for years. Besides that, the ecosystem restoration provisions will create even more jobs.

"The reinvestment potential to our communities from this opportunity is enormous," the writers said.

Capitol Notes:

Rep. Lee Nerison (R-Westby) wants feral hogs added to the list of "harmful wild animals" that are illegal to possess and propagate. At present, that list only includes cougars and certain kinds of bears. The feral hogs have caused significant agricultural damage in Vernon, Richland and Crawford counties.

Dane County Circuit Court Judge Richard Niess has denied a request by the DNR to quash a petition by Rep. Sheryl Albers (R-Reedsburg) to release documents related to the Wild River Forest Legacy purchase. Albers said "access to relevant documents, particularly appraisals, will provide insight on the DNR's level of compliance with laws governing state purchases."

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