MDA once again proposes changes to rules governing manure management and stream fencing

In 2011, the Maryland Department of Agriculture proposed changes to its Nutrient Management Regulations that were intended to help the state meet its court mandated goals for improving the water quality of the Chesapeake Bay. These proposals primarily concerned, as far as horse people are concerned, manure spreading and stream fencing. After a hue and cry by farmers, who thought they were too strict, and environmentalists, who thought they weren't strict enough, MDA went back to the drawing board. (For a more complete description of the 2011 proposal, see our blogpost of Tuesday, december 6, 2011.)
MDA has now reissued the proposal, after hearing and considering the concerns of various stake holders. Below is a summary of the provisions of most interest to horse owners. MDA will hold public meetings in four locations around the state in July, to accept public comment.  All meetings will be held from 7:00 p.m. to 9:00 p.m. For more information, contact the Nutrient Management Program at 410-841-5959.

North Central Maryland                     Western Maryland                
Tuesday, July 10, 2012                      Wednesday, July 18, 2012
Harford Community College              Washington County Agricultural Education Center
Amoss Center                                     7313 Sharpsburg Place
401 Thomas Run Road                       Boonsboro, MD 21733
Bel Air, MD  21015

Eastern Shore                                      Southern Maryland
Monday, July 23, 2012                       Wednesday, July 25, 2012
Talbot Community Center                  Calvert County Fairgrounds
10028 Ocean Gateway                       140 Calvert Fair Drive
Easton, MD 21601                              Prince Frederick, MD 20610

The draft regulations were published in the Maryland Register on June 29, 2012.  To read the proposed regulations online visit the Maryland Register at:  http://www.dsd.state.md.us/MDRegister/3913.pdf  or MDA’s website: http://www.mda.maryland.gov/pdf/proposednmregs2.pdf.

Written comments may be sent to:
Jo A. Mercer, Ed.D.
Program Manager
MDA’s Nutrient Management Program
Maryland Department of Agriculture
50 Harry S. Truman Parkway
Annapolis, MD 21401,

or email jo.mercer@maryland.gov, or fax to (410) 841-5950.

Comments will be accepted through August 13, 2012

Now here is the summary:

The proposed changes to the Nutrient Management regulations concerning manure management and stream fencing include the following:

1. Changes to timing and rates of manure spreading and winter application ban
·         Spring and Summer (March 1 - September 9) application of organic nutrients must be injected or incorporated within 48 hours of application unless one of the following conditions apply:
            a. Livestock manures deposited directly by animals.
            b. Permanent pastures.
            c. Land used for hay production.
           [This is unchanged from the previous draft.]

·         New [as compared to previous draft] definition of “fall” for application purposes –
            a. For the years 2012 through 2015, nutrients applied from September 10 through November 15.
            b. After July 1, 2016, nutrients applied in counties east of the Chesapeake Bay and the Susquehanna River from September 10 through November 1.
            c. After July 1, 2016, nutrient applied in counties west of the Chesapeake Bay and the Susquehanna River from September 10 through November 15.
[Note that there is an unregulated gap between January 1 and July 1, 2016.]

·         Organic fertilizers in the fall – Except poultry litter, organic nutrient sources may be used in the fall for an existing crop or one to be planted in the fall or the following spring (before June 1) using rate restrictions outlined in Section 1-B of the Manual.
·         The same incorporation/injection provisions and exceptions apply for organic nutrient application in the fall as were outlined in the spring/summer section above.
·         Emergency applications in the event of an imminent overflow of a storage facility shall be managed in consultation with MDA.
[For Fall applications, the new version makes clear that manure can be spread on hay and pasture land. There is no mention of the “only if inadequate storage” requirement that was in the previous version.]

·         “Winter” as defined for application of nutrients is November 16th through February 28th, but beginning July 1, 2016 the definition will be November 2nd through February 28th east of the Bay.
·         The regulations ban the application of organic material in the winter.
·         The winter application ban does not apply to manure deposited by livestock.
·         After July 1, 2016 there is a ban on organic application in the winter except for a dairy or livestock operation with less than 50 animal units (fewer than 130 dairies in MD) or a municipal wastewater treatment plant with flow capacity of less than 0.5 million gallons per day (9 towns in MD).  These operations have until February 28, 2020 to observe the winter application ban.
[The winter provisions are unchanged from the prior version, except for the extension to 2020 for operations with fewer than 50 animal units.]


2.  Requirements for storage and handling of organic nutrient sources (manures, litter & sewage sludge)
·         Field storage – Stackable (including horse) manures (less than 60% moisture content) may be stored in fields temporarily when no other storage option is available .
·         Conditions for field storage include:
    Storage must be at least 35 feet from surface water and any irrigation or treatment ditch with vegetated buffer or at least 100 feet with no buffer; at least 100 feet from wells, springs or wetlands - but, if the well is down gradient, the distance must be at least 300 feet; 200 feet from any residence other than the property owner; outside flood prone areas subject to ponding; and if located on more than a 3% slope with no diversion installed, no farther than 150 feet from the top of the slope.
·         Poultry litter and other material must be stacked 6 feet high and peaked, and staged in a manner to prevent runoff.
·         Temporary storage for future piles should stay in the same place.
·         All nutrients in temporary stockpiling must be removed completely and the ground scraped and reseeded if necessary to restore to original condition.
[There appear to be no changes in the field storage provision from the previous version, except that the reference to the limit of 120 days of stockpiling has been removed.]

3.  Setbacks for the application of nutrients by machine and livestock - Effective January 1, 2014
·         For pastures and hayfields: 10-foot setback from surface water, perennial streams and intermittent streams (defined as a stream or the reach of a stream that is below the water table for at least some part of the year, and obtains its flow from surface runoff and ground water discharge). No manure may be spread or deposited by livestock. Ephemeral streams (flow only in direct response to precipitation in the immediate watershed and have a channel bottom that is always above the local water table) and irrigation and treatment ditches are exempt.
·         10-foot setback may not include plants that would be considered part of the crop grown in the field, except perennial forage for hay or pasture.
·         Stream fencing at least 10-feet from the stream bank is required to keep livestock out of streams, unless a farmer works with the Soil Conservation District to develop and implement a Soil Conservation and Water Quality Plan that includes BMPs such as stream crossings, alternative watering facilities, pasture management and other MDA-approved BMPs that are equally protective of water quality and stream health.  Operators are required to gate crossing areas wider than 12-feet.  Operators may allow livestock controlled access to streams for watering in accordance with NRCS standards.
·         Stream Crossings for movement of livestock – Operators are responsible for sediment and erosion control of stream crossing areas.  Operators are required to move livestock from one side of a stream to the other only through stream crossings designed to prevent erosion and sediment loss.
·         Alternatives to the nutrient application setback may be approved by MDA if they are equally protective of water quality and stream health.
·         35-foot setback on sacrifice lots (less than 75% grass or grass legume mix)
[The opportunity to work out alternatives to stream fencing and setbacks with the Soil Conservation District is new to this draft.

EPA has proposed a new draft guidance on the scope of the Clean Water Act

EPA has proposed a new draft guidance on the scope of the Clean Water Act (CWA): fhttp://www.epa.gov/indian/pdf/wous_guidance_4-2011.pdf
Although they do not have the force of law, guidances help the field offices apply the law. This draft guidance interprets several recent court decisions, especially as to how to decide if bodies of water are covered by the CWA. It discusses "navigable and interstate waters," but also discusses whether and how other wet areas (e.g., wetlands, tributaries, etc.) might be considered to be covered by the CWA, and therefore subject to regulation by EPA. See page 5 of the document for a summary of key points.
EPA has stated its intent to finalize the documents based on comments received, and then to begin a rule making to incorporate it into EPA regulations. Comments can be submitted directly to the EPA and/or to US Senators and Representatives.

Letter to the WSSC's Patuxent Watershed Trails Study Team

Here is the letter we submitted for one of the two upcoming public meetings (June 18 at Laurel Library; June 19 at the Izaak Walton League in Mt. Airy; both meetings start at 7:00 pm - try to attend!)


Patuxent Watershed Study
c/o EA Engineering, Science and Technology
15 Loveton Circle
Sparks, MD 21152

To: Patuxent Study Team:

I am the Vice President of the Maryland Horse Council, which is the trade association representing Maryland's equestrian farms, businesses, interest associations and enthusiasts. Together, our membership represents over 30,000 Marylanders, many of whom live, own property and/or ride in the Patuxent Watershed.

We are aware of the recent actions taken by the WSSC to restrict public access to its watershed lands. We are very interested in your study and welcome the opportunity to express our views on its scope and conduct, as well as on the historic importance of the watershed to equestrian users - and, we would argue, on the importance of equestrian users to the watershed.

Horse back riders and other recreational users have had access to these lands for generations. They have in many cases taken on the role of volunteer stewards of the land and water, and it can be said that their routine presence as eyes and ears “on the ground” has contributed vastly to the security of the water, the land and the public at large.

In this time when citizen confidence in government and public institutions is at historic lows, it is imperative that the conduct of this study be transparent, objective and grounded in observable fact and provable data. If adverse impact by recreational users including horseback riders cannot be proven by clear and verifiable facts, the recently imposed restrictions should not continue.

Respectfully,

Jane Seigler

MDA re-proposes changes to Nutrient Management regulations

Yesterday, the Maryland Department of Agriculture issued a press release, announcing that it has re-issued proposed changes to the Nutrient Management regulations, which will affect things like manure spreading and stream fencing. Here is the press release, which outlines the changes and explains the next steps in the process:

ANNAPOLIS, MD (May 22, 2012) – Proposed changes to Maryland’s Nutrient Management Regulations were submitted to the Joint Committee on Administrative, Executive and Legislative Review (AELR) for review today, announced Agriculture Secretary Buddy Hance. Following months of negotiations with stakeholder groups, the Maryland Department of Agriculture (MDA) has finalized its new rules for the use of manure, biosolids and other organic nutrient sources on crop fields. The goal of the process is to achieve consistency in the way all sources of nutrients are managed. Once the proposed changes are published in the Maryland Register, MDA will provide public notice and offer a 45-day public comment period.

In crafting the nutrient management regulations, Maryland has considered recommendations of Governor Martin O’Malley’s BayStat Science Panel as well as concerns raised by environmental, agricultural and municipal stakeholders.

“The revised regulations strike a balance between maximizing water quality benefits, addressing the practical needs of implementing requirements in the field, and assuring economic impacts are manageable,” said Secretary Hance. “When taken as a whole, the revised regulations will advance agricultural water quality management far beyond any efforts existing in other jurisdictions.”

Ultimately, the new regulations are designed to help Maryland meet nitrogen and phosphorus reduction goals spelled out in its Watershed Implementation Plan (WIP) to protect and restore the Chesapeake Bay. Once approved, the proposed changes will be included in MDA’s Nutrient Management Manual. Following are key features of the new regulations:

Beginning July 1, 2016, nutrient applications will be prohibited between November 1 and March 1 for Eastern Shore farmers and between November 15 and March 1 for Western Shore farmers.  
Organic nutrients will need to be incorporated into the soil within 48 hours of application.
Farmers will be required to plant cover crops when they use organic nutrient sources in the fall.
Beginning 2014, farmers will be required to establish a 10 to 35 foot “no fertilizer application zone” adjacent to surface water and streams.
Beginning 2014, farmers will be required to protect streams from livestock traffic by providing fencing or approved alternative best management practices.
Fall fertilizer applications for small grains will be limited.
Guidance and clarification is provided on the use of soil amendments and soil conditioners.
“The implementation schedule addresses a major stakeholder concern and should provide farmers and local governments with adequate time to comply with the new regulations and to apply for cost-share funding to install additional best management practices,” said Secretary Hance. “The O’Malley Administration is committed to providing farmers with the critical financial resources necessary to meet our shared environmental goals.”

The Nutrient Management Advisory Committee has been working on the revised regulations for more than a year.  The new rules were originally introduced last fall; however, due to overwhelming feedback Governor O’Malley asked that the proposed regulations be placed on hold to provide an additional opportunity for stakeholders to further discuss the proposal.

If the AELR Committee approves the proposed regulatory changes, they will be published in the Maryland Register for a 45-day public comment period. After the comment period closes, MDA will review any comments. If MDA makes substantive changes as a result of the public comment, the revised regulations will be resubmitted to the AELR and the Maryland Register.

Established in 1998 to develop and refine regulations and requirements for Maryland's Nutrient Management Program, the 16-member Nutrient Management Advisory Committee includes representatives from the U.S. Department of Agriculture, MDA, University of Maryland, Maryland departments of the Environment and Natural Resources, Maryland Farm Bureau, Delaware-Maryland Agribusiness Association, Chesapeake Bay Foundation, commercial lawn care companies, the biosolids industry, as well as local governments and the state legislature.

A summary of the MDA’s proposed changes submitted to AELR is available online at www.mda.maryland.gov/pdf/proposednmregs2.pdf.

US Dept of Labor finalizes changes to H-2B visa rules

Via the American Horse Council:

On February 21, 2012 the Department of Labor (DOL) issued a final rule concerning the H-2B temporary guest worker program. This new rule, which will go into effect on April 23, 2012, will make significant changes to the way the H-2B program operates for all employers including those in the horse industry.

“Anyone in the horse industry who uses the H-2B program needs to be aware of this new rule. It makes major changes to the responsibilities of employers using the program and if the new guidelines aren’t followed employers could be fined and barred from using the program,” said AHC President Jay Hickey.

The H-2B program is used by members of the horse industry, principally horse trainers and owners who cannot find American workers to fill semi-skilled jobs at racetracks, horse shows, fairs and in similar non-agricultural activities.

The AHC believes the new rule will make the H-2B program more costly and burdensome for employers who are forced to use the program and has opposed the new rule. “It is unfortunate the DOL decide to finalize this rule,” said AHC Legislative Director Ben Pendergrass. “This rule will make it difficult for trainers and others in the horse industry to use the program and could impact American jobs. The current rule was working well for the industry and included many protections for foreign and American workers.”

The final rule, among other things, will:

• Require an employer to pay most inbound and outbound travel expenses for H-2B workers.
• Extend H-2B program benefits, such as reimbursement of transportation cost, to American “corresponding workers” that work alongside H-2B workers and perform substantially the same work.
• Require employers to provide documentation that they have taken appropriate steps to recruit U.S. workers, rather than permitting employers to attest to such compliance.
• Increase the amount of time employers must try to recruit U.S. workers.
• Prohibit job contractors from using the program.
• Define temporary need as 9 months, previously it was 10 months.
• Define full time employment as 35 hours a week, previously it was 30 hours.

“This final rule is complex and has many new provisions and changes. If you are an employer who uses the program you should review the new guidelines and contact the lawyer or agent you use to process H-2B applications to ensure you are in compliance with the new rule when it goes into effect on April 23,” said Pendergrass.

DOL guidance and the complete rule can be found here on DOL’s website.

“Many Members of Congress are also displeased with this new rule and believe it could hurt industries in their states. The AHC is going to continue to work with those Members to try and roll back this new rule. Unfortunately, gridlock in Washington will prevent any quick action by Congress and the horse industry will have to comply with the new rule for the foreseeable future,” said Hickey.

Limited liability for Maryland owners who permit recreational use of their land

Did you know that Maryland landowners who permit others to use their land for recreational purposes (such as horseback riding), according to Maryland law do NOT:

(1) Extend any assurance that the premises are safe for any purpose;

(2) Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed; or

(3) Assume responsibility for or incur liability as a result of any injury to the person or property caused by an act of omission of the person.

- as long as the landowner does not charge for the use.

Good news for trail riders, and the kind landowners who host them!

For the full text of the law, click here.

General Assembly regular session ends with no budget agreement

At midnight on April 9, the Maryland General Assembly ended its 2012 session - without enacting an apparent compromise that would have balanced the budget through both spending cuts and revenue increases. This means that the so-called "Doomsday Budget," which is balanced through deep cuts in expenditures, will go into effect on July 1, unless a special session of the General Assembly is convened to try again. A Special Session is a virtual certainty, but as of this writing, when it will convene and whether it will be confined to just budget issues is still up in the air.

In any event, the legislature did manage to dispose of a number of legislative issues of interest to the Maryland equine community. Here's a summary of the outcomes of several proposed pieces of legislation that we have been following. For a more complete description of these bills, see the MD Horse Council's legislative Blogpost of March 6.

SB 108 (making clarifying changes to the stable license law) and HB 680 (requiring the state to incorporate education about sustainable ag into science curricula) passed both houses of the General Assembly.

In addition, Sunday hunting bills in Dorchester and Caroline (SB 105/HB 114 & SB 390/HB 129), Harford (SB 346/HB 321), Cecil(HB 877), and Calvert, Charles and St. Mary's counties(HB 1431) passed. Only the PG County bill (HB 809) failed to move.

On the racing side, SB 49 (making certain changes to the Maryland-Bred Race Fund) and SB 794/HB947 (eliminating the restriction on the use of Purse Dedication Account funds for operating expenses at Ocean Downs and Rosecroft through 2015) were passed by both houses.

Bills that failed to emerge successfully include HB 912 (changing "owner" to "guardian" in certain laws applying to dogs); SB 445/HB 336 and SB 203/HB 484 (giving courts the power to order transfer of ownership of confiscated animals, and requiring original owners to pay costs in removing and caring for confiscated animals after conviction of certain crimes of abuse, neglect or cruelty; HB 376 (redirecting slots revenue away from racing industry and to school construction); SB 15 (requiring a study of the mission and operations of the Show Place Arena at the PG Equestrian Center); SB 301/HB 1020 (establishment of a registry of convicted animal abusers).

A number of changes to the Maryland Agricultural Land Preservation program (MALPF) - SB 129 (easements), SB 148 (lot releases), SB 112 (appraisals) were enacted.

A number of bills related to manure management regulations and the Chesapeake Bay watershed restoration were unsuccessful: SB 330 (prohibited new regulations to mandate action on farms until other watershed states equal Maryland's performance so far); SB 594 (prohibiting winter application of animal manure and biosolids); SB 822/HB 487 (prohibiting watershed implementation mandates on local jurisdictions unless funding from state or federal sources would support); SB 823/ HB 486 (requiring the state to develop and rank a list of best management practices for watershed implementation).

However, SB 118 (allowing the state to add sediment to its existing nutrient credit program) passed both houses.

Of general interest: the Governor's Sustainable Growth and Agricultural Preservation Act (SB 236/HB 445) (related to the implementation of PlanMaryland) was enacted with amendments that leave final control in the hands of the local jurisdictions. The Family Farm Preservation Act of 2012 (SB 294/HB 444) was also enacted. This exempts up to $5 million dollars of the value of a farm from the state estate tax when it will remain in agricultural use for at least 10 years. It also reduces the rate for property exceeding $5 million from the current 16% to 5%.

The "Flush Tax" was doubled from $30 to $60, but only for users who discharge into the Chesapeake Bay Watershed. But the proposed increase in the Gas Tax (SB 971/ HB 1302) failed.

Finally, a few bills of interest that were filed after our March 6 summary deserve mention: HB 1303 (doubles from $100,000 to $200,000 per practice the maximum amount of state cost sharing for water pollution control projects such as manure storage structures, steam fencing and crossings, etc.) passed both houses. This will be especially helpful as farmers are asked to install more best management practices to meet Watershed Implementation Plan goals. HB 1404 was enacted, moving the Animal Waste Technology Fund from the Dept. of Business and Economic Development to the Dept. of Agriculture. This fund is intended to research, develop and market projects to reduce the amount of nutrients in animal waste, or develop alternative waste management strategies. Unfortunately, SB 976/HB 1309, which would have expanded the list of tax deductible equipment purchases under the subtraction modification law to include manure spreaders and other nutrient application equipment failed to pass.