Tuesday, December 6, 2011

MD Dept of Ag to reconsider Nutrient Management Proposal

On December 1, the Maryland Department of Agriculture (MDA) confirmed to the Maryland Horse Council (MHC) that it had “delayed publication of the [new, proposed] nutrient management regulations in an effort to achieve consensus with concerned stakeholders.” On October 27, MDA had submitted proposed changes in those regulations to the State Legislature’s Joint Committee on Administrative, Executive and Legislative Review (AELR). If the AELR Committee had approved the proposed regulatory changes, they would have been published in the Maryland Register for a 45-day public comment period. The planned date for that publication was December 2. Instead, MDA announced that it was going back to the drawing board, and promised to include MHC in the process. On November 15, at MHC’s Annual Meeting, MDA representatives fielded a number of questions from MHC members who raised concerns about how the proposal would affect horse operations. The current nutrient management regulations (which basically govern manure and pasture management) as well as any proposed changes, apply only to those horse farms with 8 or more (non-draft sized) horses or with $2500 or more in gross annual income.

MDA has been struggling for months to come up with regulatory changes to help the State meet goals imposed by the Federal EPA related to the Chesapeake Bay clean up effort. (See below for more information on the Bay effort.) An initial draft of the proposed changes surfaced last Spring, and immediately drew outcry from the Maryland Horse Council, the Maryland Farm Bureau, and many farmers and individuals over the specifics of the proposed changes, some of which contained requirements that would have been difficult or impossible to implement in the context of the typical horse operation. As a result of these comments, the State’s Nutrient Management Advisory Committee (which includes representatives from the U.S. Department of Agriculture, MDA, University of Maryland, Maryland Department of the Environment and Natural Resources, Maryland Farm Bureau, Delaware-Maryland Agribusiness Association, Chesapeake Bay Foundation, Alliance for the Chesapeake Bay, commercial lawn care companies, the biosolids industry, as well as local governments and the state legislature, and which has been considering the proposed changes for the past year) made changes to the proposal.

A summary of the MDA’s proposed changes submitted to AELR, with a link to the full text of the proposed regulations, is available online at: http://www.mda.state.md.us/pdf/NM_Regs_Fact_Sheet.pdf The proposal contained the following requirements of particular interest to horse farmers:


Effective January 1, 2014, setbacks of vegetated areas, where no nutrients may be deposited or applied, will be required at the edge of surface water:

Pastures and hayfields are subject to a 10-foot application setback; no nutrients shall be applied mechanically or deposited by livestock with the setback. Sacrifice lots (less than 75% grass or grass legume mix) shall maintain a 35-foot setback.

Essentially, this means that streams and ponds must be fenced. One improvement in this provision over a previous version is that “ephemeral streams” are now excluded from the definition of surface water.


Operators are responsible for sediment and erosion control of stream crossing areas. Operators shall move livestock from one side of the stream to the other side only through stream crossings designed to prevent erosion and sediment loss. Operators shall gate crossing areas wider than 12 feet. Operators may allow livestock controlled access to streams for watering in accordance with the USDA-NRCRS Field Office Technical Guide standards and specifications.

There is no effective date specified for this provision. An MDA official commented at the MHC meeting that it was “not clear” whether this provision would apply to stream crossings on trails.

Timing of application of nutrients

During Spring and Summer (March 1 – September 9): manure may be spread or deposited directly on permanent pastures and land used for hay production. These applications will now be exempt from the requirement that nutrients be “injected or incorporated” within 72 hours, as was contained in a previous draft.

During the Fall (September 10 – November 15): livestock manure may be applied only if:

The operation making the application is generating the dairy/livestock manure or waste and storage is insufficient to accommodate additional materials generated before March 1st of the following year.

Again, there is no incorporation requirement for pastures or hayfields.

During the winter (November 16 – February 28): The proposal states that winter application of stackable manures (e.g., horse manure) is prohibited, which is also the case under the current regulations. Virtually all winter applications will be prohibited effective July 1, 2016. Famers will be expected to have adequate manure storage facilities in place to handle 120 days of manure production, and no manure may be applied to fields (except for what is directly applied by livestock).

However, the proposal will allow temporary field storage (up to 120 days) if certain standards are met regarding location, setbacks from water sources and residences, slope and grade, and cleanup of the site in the Spring. If these standards cannot be met, than a manure storage facility must be built by 2016.

The 2016 effective date is intended to give farmers enough time to plan for the installation of manure storage facilities, and to apply for cost-share and other government programs providing financial assistance. However, funds for these programs are limited and continue to be subject to budget cutting. Some farmers are not eligible at all for these programs, due to the nature of their operations.

In order to understand where MDA is coming from in its efforts to amend these regulations, it’s useful to have some background. In 1972 Congress passed the Clean Water Act, which in essence mandated that polluted water bodies be restored to environmental health. In the late 1990’s, several environmental groups brought suit against the federal Environmental Protection Agency (EPA), complaining of the slow progress in improving the Chesapeake Bay and the Potomac River. These lawsuits resulted in two consent decrees that eventually produced what are known as the Bay TMDL and the WIP. The Bay TMDL (or “Total Maximum Daily Load”) is essentially a prescription for the maximum amount of a pollutant that will be allowed to enter a water body. TMDL’s have been variously described as “pollution budgets” or “pollution diets” that must be adhered to if the Bay is to be restored to, and maintain, environmental health. For the Bay, the pollutants that are subject to the TMDL are nitrogen, phosphorus and sediment. in 2010, the EPA established the TMDLs for the Bay watershed, an area of 64,000 square miles including New York, Pennsylvania, West Virginia, Delaware, Maryland, Virginia and the District of Columbia, and required these jurisdictions to develop “Phase I Watershed Implementation Plans” (WIPs). These Phase I WIPs allocated the allowable pollutant load among different types of sources and identified statewide strategies for reducing these nutrient and sediment pollutants. You can read the Executive Summary of Maryland’s Phase 1 WIP here: http://www.mde.state.md.us/programs/Water/TMDL/Documents/www.mde.state.md.us/assets/document/MD_Phase_I_Plan_Exec_Sum_Submitted_Final.pdf; and see the entire Maryland Phase I WIP here: http://www.mde.state.md.us/programs/Water/TMDL/TMDLHome/Pages/Final_Bay_WIP_2010.aspx For general information, see: http://www.mde.state.md.us/programs/Water/TMDL/TMDLImplementation/Documents/Citizen%20Phase%20II%20WIP%20Guide_August2011_final.pdf

Maryland is now engaged in developing its Phase II WIP. The Maryland Phase I WIP identified the following broad sources of pollutants: agriculture, urban, septic, wastewater and forest. The Phase II WIP will refine the Phase I plan to include more local details about where and how nutrient and sediment loads will be reduced to clean up the Bay. Although the Phase II WIP is a State document, required by EPA, the State is working with local teams, organized at the county level, to produce the plan. These teams include representation by entities with responsibility and authority to control nutrient and sediment loads, such as county and municipal governments, soil conservation districts, and federal and State agencies among others. Meetings are currently underway on a county by county basis to discuss specific targets and goals for pollutant reduction and receive input from stakeholders about their realistic achievability.

To find out about the status in your county, see: www.mde.state.md.us/TMDL/Pages/PhaseIIBayWIPDev.aspx, and scroll down to click on your county.

So what does this all mean to you, the Maryland horse farm owner? TMDLs apply to both “point” (e.g., industrial facilities and sewage treatment plants) and “non-point” (e.g., runoff from the land following rain or snow melt) sources of pollutants. However, although there are direct regulatory mechanisms under the Clean Water Act for enforcing TMDL requirements for “point” sources, e.g., through the permitting process, “non-point” sources are generally not regulated and so there is no direct enforcement mechanism. (Although, theoretically, there are certain measures that could be taken that could transform non-point sources into point sources (e.g., the EPA could rewrite state-level CAFO (confined animal feeding operations) permits to “expand the universe of regulated operations” to include more livestock farmers.) Nevertheless, at least for the present, achievement of TMDL goals for non-point sources generally must be achieved by promoting the use of best management practices (BMPs) through incentives such as cost-sharing and grants (although in this era of budget cutting, there is admittedly not enough grant money to address all non-point source discharges). So, bottom line, in order to meet its TMDL goals for the agricultural sector, the state and county teams are looking at how the use of certain best management practices, e.g. cover crops, stream buffers and fencing, manure incorporation, etc., can be increased, with a resultant reduction in pollution reaching the Bay. Again, although at this point neither the State nor the federal government can force individual landowners to use certain BMPs, there is enormous pressure, both legal and political, on the State to meet its TMDL goals. According to MDA’s press release announcing the proposed changes to the nutrient management regulations, “a main purpose of the changes is to achieve consistency in how all sources of nutrients . . . are managed and applied to agricultural land throughout the state. That consistency will facilitate the State’s ability to demonstrate how it will meet its TMDL requirements.”

Horse farmers should not lose sight of the fact that they already play an important and positive role in protecting the health of the Bay. There is no more beneficial use of land in terms of protecting water quality than a well managed horse pasture. Given the inevitability of the TMDL requirements, horse farmers may well want to consider how they can get out in front of this issue, to help improve the Bay without hurting their bottom lines. In the meantime, lots of free advice and help are available from local soil conservation districts who can provide horse farmers with individualized soil conservation plans that improve both farm operational efficiency and the health of the environment. Help in finding and applying for cost share programs and grants is also available, and participation in these programs is voluntary. Information on local Soil Conservation Districts can be found here: http://www.mascd.net/scds/MDSCD05.htm. MHC has formed a new Farm Stewardship Committee which will be tracking regulatory and legislative developments and working to get the word out on the positive role that well managed horse farms already play in protecting the natural environment. To get more involved with the Farm Stewardship Committee, contact Jane Thery at jthery@starpower.net.

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