algae

By: Peggy Kirk Hall, Tuesday, March 31st, 2015

Ohio’s Senate and House of Representatives have agreed upon a final bill intended to control algae production in Lake Erie and its western basin.  Senate Bill 1, as amended by the House, passed both chambers on March 25 and now awaits Governor Kasich’s signature. (Post note:  Governor signed the bill on April 2, 2015; its effective date is July 3, 2015).

The law will regulate manure and fertilizer applications in the western basin of Lake Erie, require monitoring of phosphorous for certain publicly owned treatment works, regulate the placement of dredged materials in Lake Erie and its tributaries, change how the Healthy Lake Erie Fund may be used and establish agency coordination and research on harmful algae management and response.

In regards to fertilizer and manure applications, the legislation includes two new amendments that were not part of the original bills passed earlier by the Senate and House:

  • Certification requirements for persons using manure from CAFFs.  To utilize manure from a concentrated animal feeding facility that is regulated under ODA’s Division of Livestock Environmental Permitting, a person must hold either a Certified Livestock Manager license or certification under Ohio’s new fertilizer applicator certification program.  The provision pertains only if applying the manure for agricultural production on more than 50 acres.  This language closes the proclaimed “loophole” that allowed persons to receive and apply manure from a livestock facility without being subject to the same regulations as the facility.   ORC 903.40.
  • Exemptions for small and medium operations.  Small and medium agricultural operations may apply for a temporary exemption from the law’s restrictions on manure applications.  The chief of the division of soil and water resources may grant an exemption of up to one year for a medium agricultural operation and up to two years for a small operation, if the operation is working toward compliance.  An exempted operation may request technical assistance to reach compliance, and will not be subject to civil penalties for violations.  The law defines small and medium agricultural operations in the same way as the Livestock Environmental Permitting program, based on the number of livestock according to species.  ORC 1511(D). 

Other changes to the final bill include a removal of a five-year sunset provision and attempts to address lead contamination.  The final bill contains the following provisions:

Fertilizer application restrictions in the western basin

For applications of fertilizer in the western basin, a person may not apply fertilizer, defined as nitrogen or phosphorous, under these conditions:

(1) On snow-covered or frozen soil, or

(2) When the top two inches of soil are saturated from precipitation, or

(3) In a granular form when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a twelve-hour period,

unless the fertilizer is injected into the ground, incorporated within 24 hours of surface application or applied onto a growing crop.

Small and medium operations may apply for a temporary exemption from the restrictions, as explained above.  The ODA will have authority to investigate complaints of potential violations and to assess penalties for violations, which may not exceed $10,000 for each violation.  

Manure application restrictions in the western basin

A person may not surface apply manure in the western basin under any of the following circumstances:

(1) On snow-covered or frozen soil;

(2) When the top two inches of soil are saturated from precipitation;

(3) When the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one-half inch in a 24 hour period.

unless the manure is injected into the ground, incorporated within 24 hours of surface application, applied onto a growing crop, or if in the event of an emergency, the chief of the division of soil and water resources or the chief's designee provides written consent and the manure application is made in accordance with procedures established in the United States department of agriculture natural resources conservation service practice standard code 590 prepared for this state.

Small and medium operations may apply for a temporary exemption from the restrictions, as explained above.  The ODA will have authority to investigate complaints of potential violations and to assess penalties for violations, which may not exceed $10,000 for each violation.  

Applications of sewage sludge

In issuing sewage sludge management permits, the director of Ohio EPA may not allow the placement of sludge on frozen ground.

Agency responsibilities for harmful algal management and response

  • The law appoints the director of the Ohio EPA or his/her designee to serve as the coordinator of harmful algae management and response.
  • Requires the Director of Environmental Protection to consult with specified state and local officials and representatives to develop actions that protect against cyanobacteria in the western basin and public water supplies and that manage wastewater to limit nutrient loading into the western basin.
  • Requires the Director to develop and implement protocols and actions regarding monitoring and management of cyanobacteria and other agents that may result in harmful algal production.

Healthy Lake Erie Fund

The fund shall now be used in support of conservation measures in the western basin as determined by the director of ODNR; for funding assistance for soil testing, winter cover crops, edge of field testing, tributary monitoring and animal waste abatement; and for any additional efforts to reduce nutrient runoff as the director may decide. The director must give priority to recommendations that encourage farmers to adopt agricultural production guidelines commonly known as 4R nutrient stewardship

Phosphorous monitoring for publicly owned treatment works

  • Requires certain publicly owned treatment work to begin monthly monitoring of total and dissolved phosphorous by December 1, 2016.
  • Requires a publicly owned treatment works that is not subject to a specified phosphorous effluent limit on the bill's effective date to complete and submit an optimization study that evaluates its ability to reduce phosphorous to that limit.

Dredged material in Lake Erie and tributaries

  • Beginning on July 1, 2020, prohibits deposits of dredged material from harbor or navigation maintenance activities in Ohio’s portion of Lake Erie and direct tributaries of the lake unless authorized by the Director of Ohio EPA.
  • Allows the Ohio EPA Director to authorize a deposit of dredged material for confined disposal facilities; beneficial use; beach nourishment; placement in the littoral drift; habitat restoration and projects involving amounts of dredged material of less than 10,000 cubic yards.
  • Requires the Ohio EPA Director to endeavor to work with the U.S. Army Corps of Engineers on long-term planning for the disposition of dredged materials.

Implementation review

The final version of the legislation requires a review three years after the law’s effective date by the appropriate House and Senate committees, who must assess the results of implementing the new measures and issue a report of their findings and recommendations for revisions of repeal to the Governor.

Transfer of Agricultural Pollution Abatement Program

The law declares that the legislature intends to enact legislation to transfer the Ohio Agricultural Pollution Abatement Program from ODNR to ODA by July 1, 2015. 

The bill is now awaiting action by Governor Kasich.  The final version of the legislation and accompanying documents are available here.

By: Peggy Kirk Hall, Thursday, February 19th, 2015

Legislation intended to reduce the occurrence of harmful algae blooms in Ohio passed the Ohio Senate on February 18 after a fast track through the Senate Agriculture Committee.  The enacted version of Senate Bill 1 varies somewhat from the original bill introduced on February 2 by Senators Randy Gardner and Bob Peterson, but maintains a primary goal of prohibiting certain types of fertilizer and manure applications in Ohio's western basin in winter and rainfail weather conditions along with addressing other potential contributors to the algae problem. 

Revised from the original SB 1 were proposals to transfer the Ohio Agricultural Pollution Abatement Program to the Ohio Department of Agriculture, create a new Office of Harmful Algal Blooms and prohibit all open lake disposal of dredge material in Lake Erie and its tributaries.   The committee also tabled several attempts to amend the bill before sending it to the full Senate.  Those proposals included extending the bill's fertilizer and manure application prohibitions to the entire Lake Erie watershed, establishing a daily fine for violators of $333, removing the five year sunset, changing certification requirements for anyone using manure from a facility regulated by Ohio's Livestock Environmental Permitting Program and requiring standards for testing water for microcystin. 

The legislation passed by the Senate includes the following provisions:

Application of fertilizer and manure

  • Prohibits the surface application of fertilizer or manure in the western basin of Lake Erie on frozen or snow-covered soil or when the top two inches of soil are saturated from precipitation.
  • Prohibits the application of fertilizer in the western basin in granular form 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.
  • Prohibits the application of manure in the western basin when the local weather forecast contains greater than a 50% chance of precipitation exceeding one-half inch in a 24-hour period.
  • Provides exceptions from the prohibition for applications of fertilizer or manure that are injected into the ground, incorporated within 24 hours of surface application or applied onto a growing crop.
  • Provides an exception from the prohibition for applications of manure made in the event of an emergency with written consent of the chief of the division of soil and water resources and in accordance with procedures established in the USDA natural resources conservation service practice standard code 590.
  • Clarifies that the prohibition on fertilizer or manure applications does not apply to or affect any restrictions for facilities permitted under Ohio’s concentrated animal feeding facilities law.
  • Defines “fertilizer” as nitrogen or phosphorous.
  • Defines the “western basin” as the St. Mary’s, Auglaize, Blanchard, Sandusky, Cedar Portage, Lower Maumee, Upper Maumee, Tiffin, St. Joseph, Ottawa and River Raisin watersheds.
  • Grants investigation and enforcement authority for potential violations to the Director of Agriculture for fertilizer applications and the Chief of the Division of Soil and Water Resources for manure applications and allows each agency to establish by rule the civil penalty amounts for violations.
  • Requires a “sunsetting” of the above prohibition in five years, but requires the agriculture committees of the Ohio House and Senate to jointly review the effectiveness of the prohibitions, determine whether to prevent the sunset and to submit a report of findings to the Governor of Ohio.

Ohio Agricultural Pollution Abatement Program

  • Declares that it is the intent of the General Assembly that legislation transferring the administration and enforcement of the Agricultural Pollution Abatement Program from the Department of Natural Resources to the Department of Agriculture shall be enacted not later than July 1, 2015.

Harmful Algae Management

  • Appoints the Director of the Ohio Environmental Protection Agency or his/her designee as the coordinator of harmful algae management and response.
  • Requires the Director of Environmental Protection to consult with specified state and local officials and representatives to develop actions that protect against cyanobacteria in the western basin and public water supplies and that manage wastewater to limit nutrient loading into the western basin.
  • Requires the Director to develop and implement protocols and actions regarding monitoring and management of cyanobacteria and other agents that may result in harmful algal production.

Nutrient loading to Ohio watersheds

  • Authorizes the Director of Environmental Protection to study, calculate and evaluate nutrient loading to Ohio watersheds from point and nonpoint sources and to determine the most environmentally beneficial and cost-effective mechanisms to reduce nutrient loading.
  • Requires the Director or the Director's designee to report and update the study's results to coincide with the release of the Ohio Integrated Water Quality Monitoring and Assessment Report.

Phosphorous monitoring for publicly owned treatment works

  • Requires certain publicly owned treatment work to begin monthly monitoring of total and dissolved phosphorous by December 1, 2016.
  • Requires a publicly owned treatment works that is not subject to a specified phosphorous effluent limit on the bill's effective date to complete and submit an optimization study that evaluates its ability to reduce phosphorous to that limit.

Dredged material in Lake Erie and tributaries

  • Beginning on July 1, 2020, prohibits deposits of dredged material from harbor or navigation maintenance activities in Ohio’s portion of Lake Erie and direct tributaries of the lake unless authorized by the Director of Ohio EPA.
  • Allows the Ohio EPA Director to authorize a deposit of dredged material for confined disposal facilities; beneficial use; beach nourishment; placement in the littoral drift; habitat restoration and projects involving amounts of dredged material of less than 10,000 cubic yards.
  • Requires the Ohio EPA Director to endeavor to work with the U.S. Army Corps of Engineers on long-term planning for the disposition of dredged materials.

Lead contamination

  • Revises the definition of "lead free" and prohibits using or selling certain plumbing supplies and materials that are not lead free for public water systems or in a facility providing water for human consumption, with stated exceptions.

Emergency declaratation

  • The bill declares an emergency and would be effective immediately.

Visit this link to review SB 1.  The Ohio House of Representatives is currently considering its proposal to address algal blooms, with action expected on the proposal in the next few weeks.

By: Peggy Kirk Hall, Tuesday, August 19th, 2014

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.

 

 

 

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