Ohio's New Fertilizer and Manure Application Restrictions are in Effect

By:Peggy Kirk Hall, , Associate Professor, Agricultural & Resource Law , Associate Professor, Agricultural & Resource Law Monday, July 06th, 2015

Ohio's newest legislation addressing water quality concerns became effective on July 3, 2015.  The new law, enacted by the Ohio legislature earlier this year as Senate Bill 1, affects Ohio agriculture with the following provisions:

1.  Fertilizer application restrictions in the western basin.  In the western basin of Lake Erie, a person may not apply fertilizer (defined as nitrogen or phosphorous) under these conditions:

  1. On snow-covered or frozen soil
  2. When the top two inches of soil are saturated from precipitation
  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

Exceptions—the above restrictions do not apply if the fertilizer is:

  1. Injected into the ground
  2. Incorporated within 24 hours of surface application
  3. Applied onto a growing crop

2.  Manure application restrictions in the western basin.  In the western basin of Lake Erie, a person may not surface apply manure (defined as animal excreta) under these conditions:

  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 1/2 inch in a 24 hour period

Exceptions—the above restrictions do not apply if the manure is:

  1. Injected into the ground
  2. Incorporated within 24 hours of surface application
  3. Applied onto a growing crop
  4. Or if, in the event of an emergency, the chief of the division of soil and water resources provides written consent and the application is in accordance with NRCS practice standard code 590.

3.  Exemptions for small and medium operations.  Small and medium agricultural operations in the western basin, defined by number of species using the same criteria as Ohio Department of Agriculture's (ODA's) livesock environmental permitting program, may apply to the chief of the division of soil and water resources for a temporary exemption from the restrictions on manure applications. 

  1. A medium agricultural operation may be exempt for one year, up to July 3, 2016.
  2. A small operation may be exempt for two years, up to July 3, 2017.
  3. An exempt operation will not be subject to civil penalties for violations if working toward compliance and may request technical assistance to reach compliance standards.

4.  Certification requirements for any persons using manure from CAFFs anywhere in Ohio.  On 50 acres or more used in agricultural production anywhere in Ohio, no person may apply manure from a concentrated animal feeding facility regulated under a permit from ODA's Division of Livestock Environmental Permitting unless:

  1. The person has obtain Certified Livestock Manager (CLM) certification by ODA.
  2. The person has been certified by ODA through Ohio's fertilizer applicator certification program.

Complying with the new law

To ensure compliance with Senate Bill 1's fertilizer and manure restrictions that are now effective in Ohio, producers should consider these questions before making an application of manure or fertilizer:

1.  Will the application of fertilizer or manure occur in the western basin of Lake Erie?  If so, the new restrictions may apply to the application.  A map that outlines the 11 watersheds and all or parts of 25 counties that comprise the western basin is available here.

  • Does the application involve a restricted nutrient?  The new restrictions apply to any application that involves nitrogen, phosphorous or any type of animal manure.
  • Will the restricted nutrient be injected into the ground, incorporated within 24 hours, applied onto a growing crop or made with permission of the chief of soil and water resources due to an emergency involving manure applications?  If so, the application is permissible as an exception to the restrictions.
  • If one of the above exceptions does not apply to the application, do weather conditions prohibit the application?  
    • Is the ground frozen, snow covered or saturated two inches deep or more?  If so, the application is prohibited. 
    • Is there a greater than 50% chance that precipitation will exceed one inch in the next 12 hours for the area where the application will occur?  If so, an application of granular fertilizer is prohibited.
    • Is there a greater than 50% chance that precipitation will exceed one-half inch in the next 24 hours for the area where the application will occur?  If so, an application of manure is prohibited.
    • Refer to OSU Extension's C.O.R.N. newsletter for guidance on how to obtain important precipitation information prior to an application.

2.  Is a temporary exemption from the manure restrictions available?  If manure applications will be made by a "small" or "medium" animal feeding facility in the western basin, the facility may request the temporary exemption from the restrictions.  Refer to ODA's explanation of what qualifies as a small or medium animal feeding facility on its website, here.

3.  Is the manure or fertilizer obtained from a confined animal feeding facility regulated by ODA's Division of Livestock Environmental Permitting and to be applied on more than 50 acres of land in agricultural production anywhere in Ohio?  If so, the person applying the manure or fertilizer must be certified by ODA as a Certified Livestock Manager or agricultural fertilizer applicator.  A tool to search for concentrated animal feeding facilities operating under permit is available on ODA's website, here, as is information about CLM certification and the agricultural fertilizer certification program.

Non-compliance risk

ODA has authority to investigate potential violations of the new fertilizer application restrictions and the Division of Soil and Water Resources has similar authority over potential violations of manure application restrictions.  The agencies may investigate upon receiving a complaint from any person or receiving any information that suggests a potential violation.  If a violation has occurred or is occurring, the law grants the agencies rulemaking authority to establish penalty amounts for violations, which may not exceed $10,000 per separate violation.  To date, the agencies have not yet initiated proposed rules for the penalty amounts.  The agencies may not assess penalties until after providing an alleged violator opportunity for a hearing.

Due to the risk of non-compliance with the new law, producers should review insurance policies and determine whether insurance coverage exists or is available for a mishap under the new law. 

 

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