Environmental

Although long considered a natural fertilizer that can benefit our soils, manure has a history of increased regulation in recent years based on potential impacts to water quality.   The following explains how state and federal law regulates the production, storage and application of animal manure in Ohio.  

Livestock Environmental Permitting Program

The Ohio Department of Agriculture’s Division of Livestock Environmental Permitting (ODA) administers a permit program for Ohio’s largest confined livestock operations, or Concentrated Animal Feeding Facilities (CAFFs).  Ohio Revised Code Chapter 903 and Ohio Administrative Code 901:10 contain the program’s legal provisions.

An owner must obtain a “permit to install” and a “permit to operate” from ODA before operating a CAFF.  The permit requirement applies to a CAFF that houses any of the following, at a minimum:

• 700 mature dairy cows
• 2,500 hogs over 55 pounds
• 10,000 baby pigs under 55 pounds
• 82,000 laying hens
• 125,000 pullets or broilers
• 1,000 head of beef animals of any size
• 500 horses
• 10,000 sheep or lambs
• 55,000 turkeys

Related to manure, obtaining the “permit to install” requires a CAFF owner to submit information on:

• Maps indicating CAFF boundaries, manure storage facility dimensions, location and siting distances and locations of subsurface drains within 100 feet of manure storage.
• Geological study results with information on soil; groundwater sampling and analysis; hydrology; geology and topography of land used for manure storage.
• Listing of the type, amount and nutrient content of manure from the facility.

For the permit to operate, the CAFF must submit a Manure Management Plan that outlines the Best Management Practices the CAFF will implement to minimize water impacts from the storage and use of manure.  The Manure Management Plan must include:

• A nutrient budget.
• Manure and soil characterizations.
• Manure distribution and utilization methods
• Methods for minimizing odor.
• Inspection, maintenance and monitoring practices.
• Land application methods.

Land Application of Manure for Permitted CAFFs

Land application of manure by a permitted CAFF or by a Certified Livestock Manager working with the CAFF must be in accordance with ODA regulations, which include requirements for:

• Soil and manure tests.
• Crop yields and rotations to determine nutrient needs.
• Setbacks from streams, neighbors and wells
• Limitations on amounts of nitrogen, phosphorus and liquid applied.
• Weather predictions.
• Examination of soil condition for cracks, earthworm burrows and plant root pathways to tile or tile blowouts in the field.
• Monitoring of tile outlets during and after application.
• Restrictions against runoff or ponding of manure.
• Recordkeeping requirements.
• Inspection requirements.

If a local farmer uses manure from a permitted CAFF for application on another farm, the CAFF must provide the farmer with the ODA’s application requirements and a current manure test.  The farmer must certify when and how much manure was taken from the CAFF.  The farmer’s land application of manure then falls under the Agricultural Pollution Abatement Program, described below.

National Pollutant Discharge Elimination System (NPDES) Permits

The federal Clean Water Act requires livestock operations defined as “Confined Animal Feeding Operations” (CAFOs) to obtain a federal NPDES permit if they discharge or propose to discharge a pollutant to surface waters, even if the operation has obtained a permit from ODA. The Ohio EPA administers the NPDES permit process, which requires operators to control spills and runoff from their facilities and from the land application of manure.   To obtain a permit, a CAFO must develop and implement a Manure Management Plan that addresses:

• Practices to ensure adequate manure storage capacity and proper maintenance and operation of storage facilities.
• Practices to divert clean storm water away from production areas.
• Practices to ensure that animals and manure in the production area do not come into direct contact with waters of the State.
• A land application plan that includes:

• A nutrient budget.
• Manure and soil characterizations.
• Application methods and timing.
• Agronomic application rates.

CAFO owners must also meet ongoing monitoring, recordkeeping and reporting requirements and are subject to enforcement actions for violations.

Certified Livestock Manager Certification

Ohio law requires Ohio’s largest CAFFs and every manure broker or manure applicator who handles more than 4,500 dry tons or 25 million liquid gallons of manure per year to obtain the Certified Livestock Manager (CLM) certification from ODA.  The applicant must complete core classes on nutrient management standards, manure storage and handling and Ohio manure regulations and must also complete three elective classes on water quality, soil testing, stockpiling, emergency action plans, spill reporting, value of manure nutrients, recordkeeping, biosecurity, liability or applying manure to growing crops. CLMs must complete ten hours of continuing education every three years to maintain their certification.

Ohio Agricultural Pollution Abatement Program

Ohio’s Agricultural Pollution Abatement Program (APAP) applies to agricultural operations that are not subject to the above state and federal permit programs for CAFFs and CAFOs.   As stated in Ohio Revised Code 1511 and Ohio Administrative Code 1501:15-5, APAP provides state standards for management and conservation practices that aim to abate water pollution resulting from animal manure.   The Ohio Department of Natural Resources Division of Soil and Water Resources (ODNR) administers APAP in cooperation with local Soil and Water Conservation Districts (SWCD).

Ohio’s APAP regulations establish Best Management Practices (BMPs) for livestock operators.  The standards encourage operators to:

• Operate and maintain animal manure collection, storage or treatment facilities to prevent seepage, overflow or discharge of animal manure into waters of the state.
• Prevent the discharge of manure-contaminated runoff from animal feedlots and animal manure management facilities.
• Prevent pollution caused by flooding; construct animal feeding operations so that animal manure will not be inundated by a 25 year frequency flood.
• Minimize pollution from land application of manure by adopting manure application practices that consider the characteristics of the animal manure, available land, topography, cropping system, method of application, weather, time of the year, condition of the soil, other nutrients applied and nutrient status of the soil.

Technical expertise and cost-share assistance is available through APAP to help operators install and implement BMPs and develop Operation and Management Plans.   The law provides a complaint-driven process for suspected pollution incidents that can result in an investigation by ODNR or SWCD.   Farms that cause pollution and fail to adopt the recommended BMPs to address pollution abatement must develop and implement modifications to their facilities as approved by ODNR or SWCD, or face enforcement actions.

Watershed in Distress Regulations

The Ohio APAP regulations also contain rules that apply to certain producers of manure within areas designated as “watersheds in distress,” located in Ohio Administrative Code 1501:15-5-19 to 20.   The chief of ODNR’s Division of Soil and Water Resources, with approval of the Ohio Soil and Water Conservation Commission, may designate a watershed to be in distress when aquatic life and health is impaired by nutrients or sediment from agricultural land uses and where there is a threat to public health, drinking water supplies, recreation, or public safety and welfare.  Within the boundaries of a designated watershed in distress, these additional regulations apply to animal facility owners and operators and manure applicators:

• No land application of manure may occur between December 15 and March 1 without prior approval from the agency; before and after these dates, applications of manure on frozen ground or ground covered in more than one inch of snow may occur only if injected into the ground or incorporated within 24 hours of surface application.
• No land application of manure if the local weather forecast shows more than a 50% chance that precipitation would exceed one-half inch of rain in the 24 hours after the proposed application.
• Restrictions on the application of snowpack manure.
• An operation must ensure a minimum of 120 days of manure storage as of December 1 of each year and keep records of manure storage volumes.
• Anyone who produces, applies or receives more than 350 tons or 150,000 gallons of manure per year must have an approved Nutrient Management Plan that addresses the methods, amount, form, placement, cropping system and timing of all nutrient applications, unless the farm is already operating under a permit from ODA’s DLEP or an NPDES permit from OEPA.

For more information on the regulation of animal manure in Ohio, refer to these resources:

ODA Livestock Environmental Permitting and Certified Livestock Manager Programs - www.agri.ohio.gov/divs/DLEP/dlep.aspx

Ohio EPA Confined Animal Feeding Operations - www.epa.ohio.gov/dsw/cafo/index

Ohio DNR Agricultural Pollution Abatement  - www2.ohiodnr.com/soilwater/water-conservation/agricultural-pollution-abatement

Ohio Revised Code - http://codes.ohio.gov/orc

Ohio Administrative Code - http://codes.ohio.gov/oac

Fourteen years after the Ohio Legislature transferred permitting authority for confined animal feeding operations (CAFOs) from the Ohio EPA to the Ohio Department of Agriculture (ODA), a Wood County couple is challenging the transfer in federal court as a violation of the federal Clean Water Act.   Larry and Vickie Askins filed the lawsuit on August 4, 2014 in the U.S. District Court Northern Division against the ODA, Ohio EPA and U.S. EPA.  The lawsuit seeks an injunction to prevent ODA from further issuing National Pollutant Discharge Elimination System (NPDES) permits to CAFOs.  The lawsuit also asks the court to order that only the Ohio EPA can administer the NPDES permit program in Ohio, that the Ohio EPA violated federal law by failing to notify the U.S. EPA of the transfer of CAFO permitting authority to ODA and that the U.S. EPA violated federal law by failing to suspend Ohio’s ability to issue NPDES permits after the transfer of authority.

The Ohio Legislature passed S.B. 141 in 2000, which transferred authority to issue NPDES permits for CAFOs from Ohio EPA to ODA.  The lawsuit alleges that this transfer violated the terms of a 1974 Memorandum of Agreement between the U.S. EPA and Ohio EPA, in which the U.S. EPA, which has original authority over NPDES permits, delegated its authority to the Ohio EPA for purposes of administering the NPDES program in Ohio.  To date, U.S. EPA has delegated full or partial NPDES authority to 45 states. 

According to the Askins lawsuit, Ohio also violated Clean Water Act regulations by not notifying the U.S. EPA of the transfer until 2006.  Since the notification in 2006, the U.S. EPA still has not granted ODA the authority to administer an NPDES permit program for CAFOs, claims the lawsuit.

The lawsuit arises under the Clean Water Act’s “citizen suit” provision, which allows a citizen who has been or may be adversely affected to file a claim against someone who is violating the Clean Water Act or against an EPA Administrator that fails to perform any non-discretionary act or duty under the Clean Water Act.

While the CWA citizen suit provision grants citizens the right to enforce the law, citizens must also satisfy the “legal standing” doctrine of the U.S. Constitution’s Article III, which requires a suing party to have personally suffered actual or threatened injury that can fairly be traced to the defendant’s actions and for which the court can provide a remedy.  Thus, the Askinses must be able to prove that they have suffered or will suffer particular injuries from the transfer of NPDES permit authority to ODA, from Ohio EPA’s failure to notify of the transfer and from the U.S. EPA’s failure to approve the transfer or withdraw authority, and must also show that the injunctions and orders they seek from the court will address their injuries.   A review of the Askins’ complaint, however, does not indicate the injuries the couple claim to have suffered or will suffer due to the agencies' alleged violations of the Clean Water Act.

Read the complaint in Askins v Ohio Dept. of Agriculture here.

The Ohio House of Representatives gave final approval on May 21, 2014 to a bill initiated in the Senate that addresses invasive plants.  As approved by both chambers, Senate Bill 192 grants regulatory authority over invasive plants to the Ohio Department of Agriculture (ODA).  While ODA, Ohio EPA and Ohio's Division of Forestry already have programs in place to educate and assist in the identification and removal of invasive species, the new law clarifies that the director of ODA has "sole and exclusive authority to regulate invasive plant species in this state."  This authority includes the identification of invasive plant species and the establishment of prohibited activities regarding invasive plants.

The bill defines "invasive plant species" as:

"plant species that are not native to this state whose introduction causes or is likely to cause economic or environmental harm or harm to human health as determined by scientific studies."

A committee amendment to the bill clarifies that the definition of invasive plant species does not include "cultivated plants grown as food or livestock feed in accordance with generally accepted agricultural practices, including all plants authorized by the animal and plant health inspection service in the USDA."   In committee hearings, the Ohio Invasive Plants Council expressed serious concerns about this exclusion for cultivated crops.  The group's concern is that ODA would not have authority to evaluate plants with invasive properties if they are grown for livestock feed.  Other groups have raised similar worries about plants with invasive characteristics grown for biofuel production.  The Ohio Farm Bureau submitted testimony supporting the exemption, stating that the federal government already regulates plants grown for agricultural crops.

The bill contains one exception to ODA's authority over invasive plant regulation.  The director of Ohio EPA may continue to consider invasive plant species when evaluating applications and permits for wetlands under Ohio's Water Pollution Control Act.   Once ODA develops invasive plant regulations, however,  the EPA must refer to ODA's list of invasive plant species when reviewing wetland applications and permits.

Read S.B. 192 here.

The Ohio Department of Agriculture (ODA) has announced that pesticide applicators, commercial sensitive crop producers and apiaries may now use the online Ohio Sensitive Crop Registry (OSCR).  ODA developed OSCR as a “voluntary informational tool designed to allow stakeholders an effective way to communicate and protect pesticide-sensitive crops and apiaries.”  The registry will enable applicators to determine whether there are any sensitive crops in an area before applying pesticides.

How does the registry work?

ODA designed the tool for registered apiaries and "commercial" sensitive crop producers who produce at least one-half acre of a single type of sensitve crop.  The ODA defines sensitive crops as follows:

Apiaries – any ODA-registered apiary
Aquaculture – a location with any fish and other aquatics grown outdoors
Brambles – aggregated total of fruit such as raspberries and blackberries of at least .5 acres
Certified Organic – an organic farm certified by a USDA-accredited agent; certified organic crops, forage, and livestock of at least .5 acres
Nurseries – nursery stock and flowers of at least .5 acres
Greenhouse/High Tunnels – must be for commercial use and produce at least .5 acre of any combination of crops annually
Orchards – fruit or nut-producing trees of at least .5 acres
Grapes – vineyards of at least .5 acres
Tomatoes – all tomato cultivars of at least .5 acres
Fruit (other) - non-tree simple, aggregate and multiple fruits of at least .5 acres, excluding tomatoes, grapes, and brambles
Herbs – herbs and plants for spices of at least .5 acres
Vegetables – root and leafy vegetables, legumes, and pumpkins of at least .5 acres
 

Registration on OSCR is completely voluntary; a sensitive crop producer may create an account on the OSCR website and map the locations of their crops.  ODA will then verify the producer's information before it is available on the registry.  Private and commercial pesticide applicators may also voluntarily register on the site.  If approved by ODA, an applicator may search the registry to identify the locations of sensitive crops and apiaries.  The registry includes a mapping tool with options to search by address, parcel number, township, county, city, village and other methods.

It is important to note that the information provided in the registry is not available to the general public.  It is only available to those who have registered on OSCR and have been verified by ODA.

Implications for crop producers and pesticide applicators

The registry offers a good risk management tool to sensitive crop producers.  By allowing producers to communicate the existence of sensitive crops, which are typically not as easily observed as other crops, the registry should reduce pesticide drift impacts.  One possible implication for sensitive crop producers is the risk of sharing crop information through the registry, but the ODA verification process should minimize potential misuse of registry information.

Reduced drift impacts will also benefit pesticide applicators who use OSCR.  However, the voluntary nature of the registry raises potential implications for pesticide applicators.  What is the liability exposure for an applicator who knows the registry is available but chooses not to use the tool?  Could a harmed party argue that an applicator "should have known" about a sensitive crop because it was registered?  Does the availability of the information create a new legal duty for  pesticide applicators--a duty to take the additional step to identify nearby sensitive crops?  Could an insurer refuse to cover an applicator who failed to consult the registry?   Until Ohio courts receive and answer these legal questions, we don't have clear answers.

The caution to pesticide applicators, then, is to take the OSCR seriously.  Don't overlook the registry because participation is "voluntary" rather than mandatory.   The registry can provide important information that could reduce pesticide exposure to sensitive crops; a pesticide applicator who fails to utilize the information might be increasing his or her potential liability if pesticide drift occurs.

To learn more about the Ohio Sensitive Crop Registry, visit: http://www.agri.ohio.gov/scr/.