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!
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
Program revisions include new rules to address manure impacts on Ohio lakes
The Ohio Department of Natural Resources (ODNR) will hold a public hearing next week for its proposed revisions to the Ohio Agricultural Pollution Abatement Program, a water quality program that encourages voluntary actions to manage water pollution impacts from agricultural and silvicultural land uses, provides cost-sharing for agricultural pollution prevention, and allows ODNR to take measures against those who do not voluntarily address an agricultural pollution problem. For purposes of the program, "agricultural pollution" is the failure to use appropriate practices in farming or silvicultural operations to abate soil erosion or water quality impacts caused by animal waste or soil sediments. Local Soil and Water Conservation Districts are initially responsible for implementing the program, with final oversight and enforcement authority held by ODNR's Division of Soil and Water Resources.
The rule revisions come partially as a result of the agency's mandatory five-year review of the program. However, several new rules--undoubtedly the most controversial proposals--are in response to the high blue-green algae levels in Grand Lake St. Mary's and other Ohio lakes this past summer. Studies indicate that manure is one of the contributors to the proliferation of the blue-green algae. A plan of action to improve the lake's water quality developed in July by ODNR, the Ohio Department of Health and the Ohio EPA proposed several actions related to manure management, including these new rules for the Agricultural Pollution Abatement Program:
- Declaration of a "watershed in distress." The rule would give the chief of ODNR's Division of Soil and Water Resources, with the approval of the Ohio Soil and Water Conservation Commission, the authority to declare a "watershed in distress" where the watershed has aquatic life and health that 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.
- Pollution minimization in distressed watersheds. The distressed watershed designation requires all owners, operators and persons responsible for land application of manure in the watershed to minimize pollution by following applicable standards, methods or management practices; failure to do so is a program violation, regardless of whether pollution actually results from the failure.
- Land applications of manure in distressed watersheds. After a watershed remains designated "in distress" for more than two years, the rule places restrictions on land applications of manure, including required prior approval from the state for applications between December 15 and March 1, injection or incorporation for manure applied to frozen or snow pack ground before December 15 or after March 1 and limitations on applications during certain types of weather. Additionally, all owners and operators in the distressed area must maintain 120 days of manure storage.
- Nutrient management plans in distressed watersheds. Each owner, operator or person responsible for producing, applying or receiving more than 350 tons or 100,000 gallons of manure annually in a distressed watershed must develop a nutrient management plan as specified by the regulations.
In response to the proposed new rules, the Ohio Farm Bureau has already indicated that, while it supports the general intent to address water quality issues in Grand Lake St. Marys, it is concerned that the distressed watershed provisions are too vague and may exceed ODNR's scope of authority. The legislature originally granted ODNR's authority for the Ohio Agricultural Pollution Abatement Program in Ohio Revised Code Chapter 1511. Interestingly, in the joint plan of state actions for water quality improvement at Grand Lake St. Mary's, the state agencies admitted that they were asking the Ohio General Assembly to support "additional state regulatory authority" by way of approval of the proposed rule revisions by the legislature's Joint Committee on Agency Rule Review (JCARR). Whether this additional authority exceeds the scope of authority originally granted by the Ohio legislature is a question that JCARR will address in its review of the proposed rules.
The remaining proposed revisions to the agricultural pollution abatement program regulations intend to address a need for more rapid handling of pollution situations as well as problems identified through a program review conducted last year by an appointed advisory committee. Other revisions in the rules package include:
- The inclusion of manure applicators as parties responsible for land application of manure, in addition to the current rule's allocation of responsibility for the owners or operators of animal feeding operations.
- A number of changes designed to create more flexibility and efficiency in program oversight and administration by allowing earlier involvement of the Division of Soil and Water Resources.
- An increase of cost share monies to a maximum of $30,000 and expansion of the types of practices eligible for cost-sharing;
- A change throughout the rules from "animal waste" to "manure," which includes animal excretia, discarded products, process waste water, process generated waste water, waste feed, silage drainage, and compost products from mortality composting, on farm biodigerster operations or animal excretia composting.
- Required facility modifications where seepage of animal manure occurs.
- Changing "concentrated animal feeding operations" to "animal feeding operations" throughout the rule and clarifying that the program does not apply to facilities regulated through the state's Livestock Environmental Permitting Program or NPDES permit program.
The ODNR has posted the rules package and supporting materials on its website. The public hearing for the rules proposal will take place on November 8, 2010.