agricultural nutrient management
Written by Ellen Essman, Sr. Research Associate
Readers of the Ag Law Blog will recall our previous posts regarding Governor Kasich’s “watersheds in distress” executive order and the rules proposed to accompany the order. The proposed rules were recently filed and the Ohio Soil and Water Conservation Commission continues to hold meetings about which watersheds will actually be designated as “distressed.”
“Watersheds in Distress” rules are filed and hearing is scheduled
On October 15, 2018, the Ohio Department of Agriculture (ODA) filed the proposed watersheds in distress rules in the Register of Ohio, which would make changes to Ohio Administrative Code Sections 901:13-1-11, 901:13-1-19, and 901:13-1-99. A hearing on the proposed amendments will be held on November 20, 2018 at 9:00 a.m. in the Ohio Department of Agriculture, Bromfield Administration Building, Auditorium 141, 8995 East Main Street, Reynoldsburg, Ohio, 43068-3399. Interested members of the public are invited to attend and participate. Written comments are also welcomed, and information about where to send such comments can be found here. Below, we will outline the proposed changes to each rule in turn.
- OAC 901:13-1-11
OAC 901:13-1-11 currently only applies to land application of manure in watersheds in distress. The proposed changes to the rule would also make it applicable to the land application of “nutrients,” or “nitrogen, phosphorous, or a combination of both,” in watersheds in distress. Under the proposed amendments, those responsible “for the land application of nutrients on more than fifty acres” of agricultural land would not be allowed to “surface apply nutrients:”
On snow-covered or frozen soil;
When the top two inches of soil are saturated from precipitation; and
In a granular form when the local weather forecast for the application area contains greater than a fifty per cent chance of precipitation exceeding one inch in a twelve-hour period.
The same restrictions would apply for manure. If either manure or nutrients are “injected into the ground,” “incorporated within twenty-four hours of surface application,” or “applied to a growing crop,” however, the above restrictions would not apply.
The proposed changes would also alter and remove some language currently in the rule. The new rule would also remove the date restrictions on the surface application of manure that currently exist, as well as the requirement that the responsible party keep records of the local weather forecast. A document with the proposed amendments can be found here.
- OAC 901:13-19
Proposed changes to OAC 901:13-19 would require those who apply nutrients to more than fifty acres annually in a watershed in distress to “develop and operate in conformance with a nutrient management plan.” The original rule only applies to those applying manure. The new rule would also require “an attestation to the completion” of nutrient management plans to be “submitted” to the Director of ODA. The Director would also be given the power to “establish a deadline for all NMPs to be completed,” which would have to happen twelve to thirty-six months after the designation of a watershed in distress. The Director would also have the power to request NMPs from producers. The new rule would further require ODA to audit at least five percent of the attestations every year. Attestations would have to be completed each time an NMP is updated.
As for the content in the NMPs, the proposed rule would remove date prohibitions on manure application. The proposed rule also prescribes the form that NMP plans for nutrient application must take, as well as the information that must be included. The proposed rule would also change some language around so that parts that once only applied to manure would apply to nutrients, as well. The proposed changes to OAC 901:13-19 can be found here.
- OAC 901:13-1-99
OAC 901:13-1-99 contains the civil penalties for violating any of the rules in 901:13-1. The proposed changes to this section would reflect the changes to the other sections discussed above by including penalties for violating the new rule provisions.
More meetings will be held to determine which watersheds are “distressed”
In addition to the proposed rules for watersheds in distress, activity is also taking place on which particular watersheds within the Western Lake Erie Basin will actually be designated “distressed.” To this end, the Ohio Soil and Water Conservation Commission has held several public meetings throughout the summer and fall to examine the question. Today, November 1, 2018, the Commission will hold yet another public meeting, where a vote on which watersheds are designated “distressed” may occur.
Stay tuned to the Ag Law Blog for updates on watershed in distress designations and the accompanying proposed rules!
Recent actions by the Ohio legislature and Governor Kasich will affect the management of agricultural nutrients in Ohio. The Ohio General Assembly has passed “Clean Lake 2020” legislation that will provide funding for reducing phosphorous in Lake Erie. Governor Kasich signed the Clean Lake 2020 bill on July 10, in tandem with issuing Executive Order 2018—09K, “Taking Steps to Protect Lake Erie.” The two actions aim to address the impact of agricultural nutrients on water quality in Lake Erie.
The Clean Lake 2020 legislation provides funding for the following:
- $20 million in FY 2019 for a Soil and Water Phosphorus Program in the Ohio Department of Agriculture (ODA). In utilizing the funds, ODA must:
- Consult with the Lake Erie Commission and the Ohio Soil and Water Conservation Commission to establish programs that help reduce total phosphorus and dissolved reactive phosphorus in the Western Lake Erie Basin and must give priority to sub-watersheds that are highest in total phosphorus and dissolved reactive phosphorus nutrient loading.
- Create specific programs that include the purchase of equipment for (1) subsurface placement of nutrients into soil; (2) nutrient placement based on geographic information system data; and (3) manure transformation and manure conversion technologies; soil testing; tributary monitoring; water management and edge-of-field drainage management; and an agricultural phosphorus reduction revolving loan program.
- Not use more than 40% of the funds on a single program or activity.
- $3.5 million for county soil and water conservation districts in the Western Lake Erie Basin for staffing costs and for soil testing and nutrient management plan assistance to farmers, including manure transformation and manure conversion technologies, enhanced filter strips, water management, and other conservation support.
- $2.65 million for OSU’s Sea Grant—Stone Laboratory on Lake Erie to construct new research lab space and purchase in-lake monitoring equipment including real-time buoys and water treatment plant monitoring sondes.
- A $2 million obligation increase for the Ohio Public Facilities Commission allocated to the costs of capital facilities for state-supported and state-assisted institutions of higher education.
Governor Kasich’s Executive Order contains two parts:
- Directs the ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission to designate the following Hydrologic Unit Code (HUC) watersheds or portions of watersheds in the Maumee River Basin as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment: Platter Creek Watershed, Little Flat Rock Creek Watershed, Little Auglaize River Watershed, Eagle Creek Watershed, Auglaize River, Blanchard River, St. Mary’s, Ottawa River.”
- If the Soil and Water Commission consents to a designation of a watershed in distress, ODA, the Ohio Department of Natural Resources and the Ohio EPA “should recommend a rule package that establishes the following . . . nutrient management requirements for all nutrient sources; development of associated management plans for agricultural land and operations within the designated watershed boundaries; requirements for the storage, handling, land application, and control of residual farm products, manure, and erosion of sediment and substances attached thereto within the designated watershed boundaries.”
EPA reaches decision on Ohio’s list of impaired waters
Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
The United States Environmental Protection Agency (EPA) has finally rendered a decision on Ohio’s list of impaired waters following several months of delay and two lawsuits filed to compel the EPA to make a decision. (For a background on impaired waters and the two lawsuits, check out our previous blog posts here and here.) On May 19, 2017, the EPA decided to accept the Ohio EPA’s proposed list of impaired waters for the State of Ohio. Ohio’s list does not include the open waters in the Western Basin of Lake Erie. However, the State of Michigan’s list of impaired waters previously approved by the EPA does include the open waters in its portion of the Western Basin of Lake Erie.
The EPA explained that the agency deferred to Ohio's judgment not to include the open waters of the Western Basin of Lake Erie on the impaired waters list. "EPA recognizes the State's ongoing efforts to control nutrient pollution in the Western Basin of Lake Erie," stated Chris Korleski, EPA's Region 5 Water Division Director and previously Ohio's EPA Director. "EPA understands that Ohio EPA intends to evaluate options for developing objective criteria (e.g., microcystin or other metrics) for use in making decisions regarding the Western Basin for the 2018 list. EPA expects the development of appropriate metrics, and is committed to working with you on them."
For now, the EPA appears satisfied with Ohio's plan for addressing nutrient reductions in Lake Erie's Western Basin. It is possible, however, that additional lawsuits could be filed against the EPA in order to reconcile Ohio and Michigan's different designations of water in the same general area.
Read the EPA's Approval of Ohio's Submission of the State's Integrated Report with Respect to Section 303(d) of the Clean Water Act here.
Senate and House bills on algae control differ
On March 10, the Ohio House of Representatives passed H.B. 61, a proposal to address Ohio’s toxic algae issues. Last month, the Ohio Senate approved a bill on the same issue, but with several points of difference. The two must now reconcile these differences and agree upon a plan for reducing the occurrence of toxic algae in Lake Erie, which they have stated they will soon accomplish. The House already began its hearings on the Senate bill on March 11.
Here's a summary of the similarities and variations between the two proposals.
Prohibitions of surface applications. Both bills prohibit the surface application of manure and fertilizer, defined as nitrogen or phosphorous, in the western Lake Erie basin on frozen ground, saturated soil, and when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a 12-hour period. The Senate version also prohibits the application of granular fertilizer with regard to weather conditions, and the House bill also prohibits reckless violation of EPA rules regarding the surface application of sewage sludge.
Exemptions from prohibitions. Both bills exempt a person from the above prohibitions for manure and fertilizer applications that are injected into the ground or applied on a growing crop. Each also contains an exemption for fertilizer that is incorporated into the soil within a certain time period; the House allows a 24-hour time period while the Senate allows 48 hours for incorporation of the fertilizer.
Exclusion from enforcement. The House bill allows a potential violator of the manure prohibitions to request assistance from ODNR, SWCD or other qualified persons on the development of technically feasible and economically reasonable measures that would cease or prevent violations; requires ODNR to assist with the request and set a schedule for implementing the measures; and prevents ODNR from enforcing violations if a person has made such a request, is receiving assistance or is implementing the measures. The Senate bill does not include these or similar exclusions from enforcement.
Enforcement of violations. If a person violates the prohibition against manure applications, the Senate authorizes ODNR to assess a civil penalty as determined by rulemaking and after allowing opportunity for a hearing. The House takes a "corrective action" approach, allowing ODNR to notify a violator and propose corrective actions within a specified time period, then to inspect for continued violations after the specified time period and determine whether violations are still occurring and a civil penalty should be assessed, with an opportunity for a hearing.
Review and sunset. The House bill requires a joint legislative committee review of the results of the prohibitions against fertilizer and manure applications and a report to the Governor of their findings and recommendations on whether to repeal or revise the prohibitions. The Senate version requires a joint review and report to the Governor after four years, but states that the prohibitions on fertilizer and manure applications will sunset after five years unless the committees jointly recommend continuing the prohibitions.
Agency coordinator. The Senate bill requires the EPA director to serve as the coordinator of harmful algae management and response and to develop plans, protocols and coordinated efforts to address harmful algae. The House proposal does not contain this or a similar provision.
Studies. In the Senate bill, the EPA is authorized to conduct studies of nutrient loading from point and nonpoint sources in the Lake Erie and Ohio River basins. The House bill does not contain this or a similar provision.
Healthy Lake Erie Fund. The House would not change the existing Healthy Lake Erie Fund, but the Senate proposes eliminating most current uses of the fund and revising it to allow the fund to be used for financial assistance with winter cover crops, edge of field testing, tributary monitoring and animal waste management and conservation measures in the western Lake Erie basin and for reduction of nutrient runoff as determined by ODNR’s Director.
Phosphorous monitoring. Both bills require certain publicly owned treatment works (POTWs) to conduct monthly monitoring of total and dissolved phosphorous by the end of 2016 and other POTWs to complete a study of their ability to reduce phosphorous, but the House bill would also require the Ohio EPA to modify NPDES permits to include these requirements.
Dredging. Both bills prohibit the deposit of dredged materials beginning July 1, 2020; the Senate applies the prohibition to Ohio’s entire portion of Lake Erie and its direct tributaries, while the House would limit the prohibition to the Maumee River basin.
Lead contamination. The House does not address lead contamination, but the Senate version prohibits the use in public water systems or water consumption facilities of certain plumbing supplies and materials that are not lead free and prohibits other actions related to lead pipes and fittings.
Emergency. The Senate version declares an emergency, allowing the legislation to be effective immediately upon passage, while the House bill does not declare an emergency.
In response to the recent drinking water ban in Toledo, three senators from Ohio's Lake Erie counties have introduced SB 356 to expand and accelerate fertilizer certification legislation passed earlier this year. Senators Brown, Cafaro and Turner's proposal would add "manure" to the definition of "fertilizer" for purposes of the fertilizer certification program enacted this May in SB 150. Whether or not manure applications should fall under the fertilzer certification requirement was a point of much debate in committee hearings for SB 150, with the legislature ultimately deciding to exclude manure applications from the new certification program.
SB 356 would also significantly change the deadline for fertilizer applicators to become certified--from September 30, 2017 to December 31, 2014. This change of deadline, which appears impracticable if not impossible, would require the Ohio Department of Agriculture (ODA) to establish the regulations for the fertilizer certification program and offer certification training so that any persons desiring to apply fertilizers after December 31, 2014 could become certified through the new program. Currently, SB 150 gives ODA and fertiler applicators three years to establish the new fertilizer certification program and complete certification training.
S.B. 356 is the first of several legislative proposals we expect to see in response to Toledo's water concern. The bills will likely present different approaches to address phosphorous runoff, which many point to as the cause of the algae problem. Representative Sheehy has announced his intent to introduce legislation soon that would limit applications of manure on frozen or snow-covered ground and would expand manure storage requirements for livestock operations.
A statewide Ohio Lake Erie Phosphorous Task Force formed in 2009 issued its second report and recommendations for addressing phosphorous in Ohio waterways last October.
The Ohio Legislature is one step closer to creating a unique fertilizer applicator certification program for Ohio agriculture. The Ohio House of Representatives recently approved the measure in S.B. 150, which had already passed the Senate in January (see our related post.) The legislation aims to reduce fertilizer runoff into Ohio's waters in response to recent problems with algae blooms in Lake Erie and Grand Lake St. Mary's. Other states with fertilizer applicator certification programs focus on professional, turf or urban applications of fertilizer, but Ohio's program would require farmers applying fertilizers on their own land to complete the knowledge-based certification program.
An amendment by the House extends the certification requirement to anyone applying fertilizer for agricultural production on more than 50 acres of land, rather than on more than 50 "contiguous" acres as approved by the Senate. The amendment will likely expand the program to more smaller-acreage farmers. Although urged to do so, neither the House of Representatives nor the Senate agreed to extend the proposal even further by including "manure" in the definition of "fertilizer."
The Senate must now approve the House-amended version when it reconvenes in early May. Upon Senate approval, the legislation would move to the Governor by mid-May. If enacted, the bill gives the Ohio Department of Agriculture three years to establish and implement the fertilizer applicator certification program. The bill also contains provisions for voluntary nutrient mangement plans, operation and management plans for animal feeding operations, and a few changes to Ohio's fertilizer license laws.
Watch for our final analysis of S.B. 150 as it continues the legislative process next month.
The Ohio Senate has approved a bill directing the Ohio Department of Agriculture (ODA) to establish a fertilizer applicator certification program in Ohio. The sponsors of Senate Bill 150, Senator Cliff Hite and Senator Bob Peterson, designed the legislation to address agricultural nutrient runoff into Ohio waterways and the algae problems in Grand Lake St. Marys and Lake Erie. According to Senator Hite, the bill hinges on a new education and certification program that will give farmers additional information about fertilizer and nutrient use best practices.
Here are answers to a few basic questions farmers might have about the proposed program:
When would the program begin? If the bill is passed by the Ohio House of Representatives, the fertilizer application certification program would begin on September 30 on the third yearsfollowing the law’s effective date.
Who would have to be certified? Someone who applies “fertilizer” for agricultural production on land more than 50 acres in size would have to be certified by ODA as a fertilizer applicator, or would have to be acting under the instruction of a certified fertilizer applicator.
Would there be any exemptions from the program? Those who would make applications of fertilizer on land parcels of 50 acres or less would be exempt from the certification requirement. The bill would also allow the ODA director to establish additional exemptions for certain persons or certain “types of cultivation.”
What fertilizers would the program cover? Under the bill, “fertilizer” means any substance containing nitrogen, phosphorus, or potassium or any recognized plant nutrient element or compound that is used for its plant nutrient content or for compounding mixed fertilizers. The definition of fertilizer does not include lime, manure and residual farm products such as bedding, wash waters, waste feed, silage drainage and certain dead animal composts, unless those are mixed with fertilizer materials or distributed with a guaranteed analysis.
What would the certification program involve? The Senate’s bill directs that the program must educate applicants on the time, place, form, amount, handling, and application of fertilizer—commonly referred to as the "4-Rs" of nutrient stewardship (right fertilizer source at the right rate, at the right time and in the right place). The bill also states that the program must "serve as a component of a comprehensive state nutrient reduction strategy addressing all sources of relevant nutrients" and must "support generally practical and economically feasible best management practices."
Would there be a certification fee? The bill allows the ODA to establish a fee for applicants who seek certification, but the fee may not exceed the fee charged for the state’s pesticide applicator certification program. Additionally, the bill exempts persons who hold an Ohio commercial or private pesticide applicator’s license from paying an additional application fee if they also seek fertilizer application certification.
Other important provisions in Senate Bill 150 include:
Recordkeeping requirements. Certified applicators would have to maintain fertilizer application records for at least three years from the date of a fertilizer application. The records must include the date, place and rate of application, an analysis of the fertilizer and the name of the person applying the fertilizer. Applicators would not be required to submit the records to ODA on a regular basis, but would have to make the records available upon a request by the agency.
Emergency revocation and suspension powers. The bill would allow the ODA director to immediately deny, suspend, revoke, refuse to renew or modify a fertilizer applicator certificate if there is "substantial reason to believe the certificate holder recklessly applied fertilizer in such a manner that an emergency exists that presents a clear and present danger to human or animal health."
Voluntary Nutrient Management Plans. The bill would allow a person who owns or operates agricultural land to develop a voluntary nutrient management plan in collaboration with Ohio State University, the Soil and Water Conservation District or the Natural Resource Conservation Service or its certified providers and submit the plan for approval by the Soil and Water Conservation District. A voluntary nutrient management plan would be an important critieria for immunity from civil liability, discussed below.
Legal Defense against Civil Actions. Under the bill, a person sued in a claim involving liability for an application of fertilizer would have a legal defense that would prevent liability upon showing these three criteria:
- The person is a certified fertilizer applicator or under the control of a certified applicator;
- The person properly maintained fertilizer application records as required by the certification program;
- The fertilizer was applied according to and in substantial compliance with an approved voluntary nutrient management plan.
Watch now for the agricultural nutrient management bill to be introduced in the Ohio House of Representatives for final approval. More information about S.B. 150 is available here.