Rule to protect drinking water from manure may face gauntlet
Jan. 13--After more than two years of study and debate, Gov. Scott Walker's administration is seeking approval for a rule the state's powerful dairy industry has criticized as going too far in restricting disposal of manure near vulnerable drinking water supplies.
The proposed rule is a compromise between what the industry and conservationists wanted to see. At least one environmental group has been telling key lawmakers the rules don't go far enough, but that it's crucial that they be put in place as soon as possible as a first step to protect as many as 25,000 drinking water wells.
But it's likely that business lobbyists will seek to delay or weaken the new restrictions, and state lawmakers will have opportunities to block the rule or demand changes, according to representatives of the Natural Resources Board and an aide to a key state senator.
The state's business lobby, Wisconsin Manufacturers Commerce, will oppose the rule if the state Department of Natural Resources doesn't provide sufficient proof that existing regulations can't protect public health, said WMC general counsel Lucas Vebber.
Ultimately, leaders of the agriculture industry will back the rule, predicted Bill Bruins, a farmer and member of the DNR's policy board who specializes in water quality issues.
However, Bruins said he doesn't think the industry will watch the rules move toward final approval without seeking changes to minimize costs for farmers.
"That would be asking a little bit too much," Bruins said.
Natural Resources Board members, who are appointed by Walker, will consider the proposed rule Jan. 24. Approval would clear the way for the governor to send it to the Legislature, where leaders would have the option of taking no action and allowing the rule -- called NR 151 -- to take effect.
It's likely that one or more legislative committees will hold a public hearing, but it's too early to say if lawmakers will seek changes, said Mike Mikalson, an aide to Sen. Stephen Nass. Nass, a Whitewater Republican, is co-chairman of the Joint Committee for the Review of Administrative Rules.
The joint committee could recommend that the Legislature block the rule, but typically agencies make changes requested by committee leaders, Mikalson said.
The legislative session ends March 22. If the Legislature doesn't block the rule or demand changes that would be time-consuming to write, the DNR could have the rule in place by fall, he said.
The rule is designed to address persistent problems of drinking water tainted by bacteria and other pathogens that cause serious illnesses in parts of the state where millions of gallons of manure are spread on fields each year.
In much of the state, the aquifer that is tapped for drinking water is protected from pollutants -- but not always very well -- by bedrock that is fractured and porous. Especially in places with shallow topsoil and little clay, rain can carry manure into ground water in a few hours.
Even with 18 feet of topsoil, relatively unfiltered pollutants can reach drinking water within 24 hours in places like Kewaunee County near Green Bay.
For years, about one-third of tested wells in Kewaunee County have been tainted, and more recent tests have found double that rate.
The proposed rule would limit disposal of manure on fields depending on the depth of bedrock and the presence of sinkholes and other conduits for pollutants.
Limits would be set for places with 20 feet of topsoil or less in Brown, Calumet, Dodge, Door, Fond du Lac, Kenosha, Kewaunee, Manitowoc, Milwaukee, Outagamie, Ozaukee, Racine, Walworth, Washington and Waukesha counties.
The same type of bedrock is found in southern and western Wisconsin, but there has been less study in those areas and industry representatives resisted their inclusion.
The dairy business association has said it accepts the proposed restrictions on topsoil that is 5 feet thick or less, but opposes limits for places with more because it's more difficult to determine depth to bedrock in those areas.
Scott Laeser of Clean Wisconsin said a rule that covered only 5 feet of topsoil or less would leave over 13,000 drinking water wells without needed protection. The group estimates 25,000 wells would be protected if the rule is adopted.
The DNR and a task force rated ground water vulnerability below fractured bedrock as "extreme" with 5 feet or less of topsoil, "high" with 5 feet to 15 feet, and "significant" with 15 to 50 feet.
In 2014, citizen groups petitioned the U.S. Environmental Protection Agency to force the state to do something about drinking water in Kewaunee County. The federal and state governments oversaw scientific studies and convened a variety of groups for talks.
By 2016, the DNR had sought Walker's approval to rewrite administrative rules. The DNR narrowed the scope of the revision after Walker's office distributed the agency's original plan to groups like dairy business association and they insisted on changes.
Walker to evaluate
If the Natural Resources Board approves the manure limits this month, Walker could send them back to the DNR for revisions or to the Legislature for final approval.
"This process is ongoing," Walker spokeswoman Amy Hasenberg said Friday. "Once this proposed change reaches the governor's desk, he will evaluate it."
The proposed rule would affect too many dairy producers, are too strict, and could be difficult to follow, the state Dairy Business Association and the Kaukauna-based Milk Source, which operates several large dairy feedlots, said during a public comment period last year.
William Bruins, who is a farmer in addition to serving on the DNR policy board, said it was important for the state to act.
"Nobody gets everything they want," Bruins said. "Is it perfect? No. But it's a good piece of work that has the potential to make a significant improvement in people's water quality as far as pathogens are concerned."