Ohio Agricultural Law Blog--A wave of "watersheds in distress" activity

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:”

1. On snow-covered or frozen soil;

2. When the top two inches of soil are saturated from precipitation; and

3. 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!