Ohio Ag Law Blog--What are states doing about agricultural nutrient impacts on water quality?

By:Peggy Kirk Hall, , Associate Professor, Agricultural & Resource Law , Associate Professor, Agricultural & Resource Law Wednesday, June 12th, 2019

Sparse dry weather conditions haven't dampened concerns about the extent of agricultural water quality problems we may see when summer weather finally arrives.   Despite the weather, harmful algal bloom (HAB) predictions for the summer are already out and are one important  measure of water quality impacts that are attributed to agriculture.   As HABs arise, so too do the questions about what is being done  to reduce HABs and other water quality impacts resulting from agricultural production activities.  We set out to answer these questions by examining key players in the water quality arena:  the states. 

In our new national report, State Legal Approaches to Reducing Water Quality Impacts from the Use of Agricultural Nutrients on Farmland, we share the results of research that examines how states are legally responding to the impact of agricultural nutrients on water quality.  After examining state laws, regulations and policies across the country, we can make several observations about state responses to the agricultural water quality issue.  First, more activity occurs in states that are near significant water resources such as the Chesapeake Bay, Great Lakes, Mississippi River and coastal regions.  States in those areas have more legal solutions in place to address nutrient impacts.  Next, nearly all states rely heavily on nutrient management planning as a tool for reducing agricultural nutrient impacts on water quality.  We also note that there is an absence of monitoring, bench marking, and data collection requirements in the laws that address agricultural nutrient management and water quality.  Finally, many states have piecemeal, reactionary approaches rather than an organized statewide strategy accompanied by a locally-driven governance structure.

As we conducted our research, two types of approaches quickly emerged:  mandatory and voluntary.  Mandatory approaches are  those that require specific actions or inactions by persons who use nutrients on agricultural lands, while voluntary approaches allow a user of agricultural nutrients to decide whether to engage in programs and practices that relate to water quality, with or without incentives for doing so.  Because we could identify mandatory approaches through statutory and administrative codes, we were able to compile the laws into a database.  Our compilation of Mandatory Legal Approaches to Agricultural Nutrient Management is available on the National Agricultural Law Center's website. 

We classified the state mandatory approaches into three categories:

1.  Nutrient management planning is the most common mandatory tool used by the states.  All but two states mandate nutrient management planning, but the laws vary in terms of who must have or prepare a nutrient management plan (NMP).  In the report, we provide examples of states that require NMPs for animal feeding operations, those that require NMPs only in targeted areas, those that require all operators to have an NMP, and those that require preparers of NMPs to be certified.

2.  Nutrient application restrictions are becoming increasingly common across the states, but also vary by type of restrictions.  In the report, we categorize four types of nutrient application restrictions and present the combination of restrictions in place in five states across the country:

---Weather condition restrictions

---Setback and buffer requirements

---Restrictions on method of application

---Targeted area restrictions

3.  Certification of nutrient applicators is an approach used by 18 states, but state laws differ in terms of who must obtain certification.  Some states require only animal feeding operations and commercial "for hire" applicators to be certified, while others extend certification to private landowners, users of chemigation equipment, or those in targeted sensitive areas.  We provide examples of each type of certification approach.

The number and types of voluntary approaches to reducing agricultural nutrient impacts on water quality is extensive and more than we could identify and gather into a state compilation.  In our report, however, we present examples of four types of voluntary approaches states are taking:

1.  Technical assistance in the form of technical expertise and informational tools.

2.  Economic incentives such as cost share programs, tax credits and water quality trading programs.

3.  Legal protections for those who engage in nutrient reduction efforts.

4.  Research and education programs that aim to increase understanding of the problem and expand the knowledge base of those who use and work with nutrients.

Please read our report, available here, to learn more about legal approaches states are taking in response to concerns about the impact of agricultural nutrients on water quality.  We produced the report with funding from the USDA National Agricultural Library in partnership with the National Agricultural Law Center.

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