Revisions Coming to the Ohio Agricultural Pollution Abatement Program?
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.