By Ashley Ellixson and Paul Goeringer
This post shall not be construed as legal advice.
On October 17, the Maryland Department of Agriculture (MDA) published the proposed regulations for the Agricultural Certainty Program (ACP) in the Maryland Register (http://1.usa.gov/1yLxuVT). ACP, passed by the General Assembly during the 2013 session, is a voluntary program which allows producers who meet and maintain compliance with Maryland water quality standards to be certified for a 10-year period — meaning that new state and local nutrient and sediment reduction requirements will not apply to the producer.
Why is ACP a big deal? I’m sure many of you are more aware of this personally than me, but in Maryland it can feel like nutrient management requirements and sediment requirements change almost yearly. A producer participating in ACP and meeting required water quality standards will have consistent nutrient management requirements over the next 10 years. This will potentially allow producers to better plan for the future and work to implement nutrient and sediment reduction requirements as the operation can support those changes.
Who is Eligible?
The proposed regs make eligible for the program all operators of agricultural operations which is defined to include “a business or activity where a person tills, crops, keeps, pastures, or produces an agricultural product, including livestock, poultry, plants, trees, sod, food, feed, or fiber by in-ground, out-of-ground, or other culture” (§ 15.20.11.02(B)). This includes operators of concentrated animal feeding operations (§ 15.20.11.03(C)). This is a broad view of the eligible types of operations for ACP.
Under ACP, you are not required to enroll all your farmland into the program, but you are not allowed to divide farm parcels — they must be entered as a whole. This ability to enroll only a portion of your farmland is a potential benefit to a producer looking at enrolling in ACP. As you will see as we discuss the proposed regulations, producers may have farmland with issues which may keep MDA from approving the application. A producer could then decide not to enroll the farmland with issues, but to go ahead and enroll the other properties. This would give him the 10-year certification period on some farmland, but still require meeting nutrient and sediment reduction changes on the uncertified farmland.
What Needs to Be Included in the Application?
In order to become certified under ACP, according to the proposed regulations, the producer will need to provide:
1. Documentation from the producer’s local soil conservation district that the current Soil Conservation and Water Quality Plan (SCWQP) is being fully implemented,
2. A map showing field boundaries, field identification numbers (such as those used by USDA-Farm Service Agency), and locations of best management practices (BMP) marked;
3. Demonstration that the current Nutrient Management Plan (NMP) was developed according to MDA’s regulations and is being fully implemented; and
4. A report from a certified verifier that NMP and SCWQP are fully implemented, current management and BMPs will meet TMDL baseline requirements, and no deficiencies or corrective actions are needed.
Does Maryland Department of the Environment (MDE) have a role in this process? MDE does have a role if the applicant holds or has applied for a permit from MDE. In these cases, MDE will need to approve the application, along with MDA. MDE can 1) make approval conditional on the applicant meeting certain conditions, or 2) just approve the application.
Once MDA has all this information, the application and the approval from MDE, then MDA can certify the application and the applicant can enter into a Certainty agreement with MDA. The Certainty agreement is the contract between the applicant and MDA that the producer will need to meet both general and recordkeeping requirements over the 10-year certification period.
General Requirements
A certification remains in effect for a 10 year-period following MDA approval, as long as the operation is in compliance with all other areas of the regulations and there are no changes with the exception of a change of an operator provided it is an interfamily change. However, the operation would not be in compliance if there is 1) a change in owner when it results in the change in operator, 2) a change in annual number of animal units of 10% or greater, or 3) a change in the operation making it ineligible to participate in the program such as mismanagement.
Additionally, an operator who has any change occur in its operation which may result in ineligibility must notify the Department within 60 days and bring the operation into compliance, reapply for certification, and terminate the Certainty agreement. For changes that that will not require a termination of the Certainty agreement, MDE may approve changes not deemed significant and require new documentation verifying compliance with necessary thresholds. If nitrogen, phosphorus, or sediment runoff changes the condition of the soil naturally, the operator must notify MDE within 60 days. MDE will then coordinate an inspection of the site and determine whether the certification will stand if soil is repaired. If mismanagement is involved, the Department will suspend certification.
An inspection of the site will take place in year 9 of the 10-year certification period and new local, state and federal laws will be addressed at that time to ensure compliance. An operation can apply for recertification after the 10-year period if all information required under the application process is provided, met, and MDE approves the certification. It is important to remember that even if the operation is certified, it is not protected from enforcement of local, state and federal laws, and permits.
Recordkeeping Requirements
All persons in ACP will be required to file an annual reporting form with MDA by March 1. The form will ask for NMP records including soil surveys conducted within the last three years and SWQP records related to the implementation of any additional BMPs. All NMP and SWQP records will need to be kept for all years the operation was certified and at least three years after the certification is terminated.
You should be aware that the proposed regs do make information maintained by MDA under this program accessible to the public. Although the records are public, MDA is required to redact any information on the form to protect the identity of the person to whom the information relates, which means at least names, address, personal identification numbers, etc would be redacted before the records are shared with the public.
Conclusion
Comments on these proposed regulations are due by November 17 to Louise Lawrence, Chief, Maryland Department of Agriculture, Office of Resource Conservation, 50 Harry S. Truman Parkway, Annapolis, Maryland 21401, or, call 410-841-5873, or email to Louise.Lawrence@maryland.gov, or fax to 410-841-5734. Take a moment and consider how these potential regulations will impact your operation and consider letting MDA know your thoughts.