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| Montana Administrative Register Notice 17-342 | No. 7 04/11/2013 | |
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BEFORE THE BOARD OF ENVIRONMENTAL REVIEW OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On December 20, 2012, the Board of Environmental Review published MAR Notice No. 17-342 regarding a notice of public hearing on the proposed amendment and adoption of the above-stated rules at page 2510, 2012 Montana Administrative Register, issue number 24. 2. The board has amended ARM 17.30.1330, 17.30.1341, 17.30.1343, 17.30.1361, and 17.30.1362 exactly as proposed and has adopted New Rule I (17.30.1334) as proposed, but with the following changes, stricken matter interlined, new matter underlined: NEW RULE I (17.30.1334) TECHNICAL STANDARDS FOR CONCENTRATED ANIMAL FEEDING OPERATION (1) through (2)(h) remain as proposed. (3) Except as provided in (10), application rates for manure applied to each field must be determined based on the criteria given in (a) through (c). (a) The CAFO shall complete a field-specific assessment to determine the appropriate basis (nitrogen- or phosphorus-based) for application of plant nutrients. (i) (A) nitrogen-based application, if the site vulnerability rating is low (total phosphorus index value is less than 11); (B) phosphorus-based, if the site vulnerability rating is medium (total phosphorus index value is between 11 and 21); (C) phosphorus-based application up to crop removal, if the site vulnerability rating is high (total phosphorus index value is between 22 and 43); or (D) no application, if the site vulnerability rating is rated as very high (total phosphorus index value is greater than 43). (ii) (A) nitrogen-based application, if the Olsen phosphorus soil test is less than 25 mg/L; (B) phosphorus-based application, if the Olsen phosphorus soil test is greater than 25.1 mg/L and less than 100 mg/L; (C) phosphorus-based up to crop removal, if the Olsen phosphorus soil test is greater than 100.1 mg/L and less than 150.0 mg/L; (D) no application, if the Olsen phosphorus soil test is greater than 150 mg/L. (b) The CAFO shall complete a nutrient need analysis for each crop to determine the acceptable amounts of nitrogen and phosphorus to be applied to the field based on the appropriate basis (nitrogen- or phosphorus-based application) as determined in (a). The nutrient needs must be determined based on Montana State University Extension Service Publication 161, Fertilizer Guidelines for Montana Crops or other relevant sources. For crops not listed in Bulletin 161, the department may approve a fertilizer application rate provided by the local county extension service or other qualified source. The CAFO must identify the source of the nutrient needs analysis in the nutrient management plan. (c) The CAFO shall complete a nutrient budget based on the nutrients needs of the crop as determined in (b) that accounts for all sources of nutrients available to the crop. Other sources that must be addressed where applicable include those in (i) through (vi) (i) The nitrogen needs determined in (b) must be reduced based on nitrogen fixation credits if a legume crop was grown in the field in the previous year
(ii) The nitrogen needs determined in (b) must be reduced based on nitrogen residuals from past manure applications based on nitrogen mineralization rates given in Schedule Schedule II remains as proposed, but is renumbered Schedule I. (iii) remains as proposed. (iv) Nitrogen availability may be adjusted to reflect the method of application given in Schedule Schedule III remains as proposed, but is renumbered Schedule II. (v) through (6) remain as proposed. (7) Manure must be applied to fields at times and under conditions that will hold the nutrients in place for crop growth and protect surface and ground water using best management practices described in the nutrient management plan. The intended target spreading dates must be included in the NMP. Manure must not be land-applied under the following conditions: (a) and (b) remain as proposed. (c) to frozen or snow-covered ground (winter application), except for fields meeting the following criteria: (i) the application area must be at least 300 feet from lakes, streams, intermittent streams, irrigation canals and ditches, open intake structures, property lines, and road right-of-ways; (ii) permanent vegetative cover or standing stubble with crop residue greater than 50 percent; and (iii) land slope of the field must not exceed the following criteria: (A) six percent for application of solid manure (total solids content greater than 15 percent); or (B) three percent for application of slurry or liquid waste (total solids content of 15 percent or less). (8) If winter application is proposed, the CAFO must identify fields suitable for winter application in the nutrient management plan and application rates for manure must not exceed those identified in the nutrient budget as determined in (3)(c). (8) through (11)(f) remain as proposed, but are renumbered (9) through (12)(f). 3. The following comments were received and appear with the board's responses: COMMENT NO. 1: Under Department Circular DEQ-9, a CAFO was able to substitute a soil test for phosphorus to determine the nutrient budget in the nutrient management plan (NMP). New Rule I does not allow for a soil test and instead requires that all CAFOs complete a phosphorus risk assessment. RESPONSE: Department Circular DEQ-9 provided two options for determination of the field-specific application rate. The soil test method based the application rate on the results of a single soil analysis for phosphorus. The Phosphorus Index (PI) is based on a combination of factors, including: soil erosion potential, application method, runoff potential, commercial fertilizers, soil test, and distance to surface water. The PI provides a better estimate for assessing the potential for phosphorus and nitrogen to enter surface water and was therefore selected as the preferred method in New Rule I. The basis for eliminating the simple soil test was to provide a greater level of protection to surface water. The Montana 2012 Final Integrated Water Quality Report (Montana Department of Environmental Quality, March 2012) identifies 228 waterbodies as impaired for phosphorus (total) and 202 waterbodies as impaired for nitrogen (total). Phosphorus and nitrogen, along with sedimentation/siltation are major sources of impairment of Montana surface waters. In order to provide greater flexibility to CAFOs while protecting impaired waterbodies, the board will amend New Rule I to allow the soil test analysis for CAFOs with fields which are not located in a watershed that is listed on the most recent 303(d) list as impaired for nitrogen or phosphorus (nutrients). COMMENT 2: I currently prepare NMPs for 13 different CAFOs that are actively being implemented and I question whether or not it is the intent of the State to require that they be reevaluated. RESPONSE: Nutrient Management Plans must be updated every five years in accordance with MPDES permit application requirements and 40 CFR 122.23 and 122.42(e). COMMENT 3: NRCS believes that winter application should be allowed until we have some assurance that economically disadvantaged producers can afford or acquire six months of waste storage capacity. To prevent the offsite delivery of nutrients and further protect water quality, these winter applications would need to be applied at agronomic rates as currently required and exclude the following special protection areas: (1) land within in 300 feet of lakes, streams, intermittent streams, irrigation canals and ditches, open intake structures, and road right-of-ways; (2) land slopes greater than six percent for solid manure; (3) land slopes greater than three percent for semi-liquid (slurry) or liquid manure; (4) land that is not in permanent vegetation or standing stubble and has crop residual of less than 50 percent. RESPONSE: New Rule I has been amended to allow for winter application of manure on land that meets certain criteria. The CAFO must identify any fields that may be used for winter application in the nutrient management plan. However, winter application is not allowed as a substitute for adequate storage. COMMENT 4: The NRCS requests that the board delete Schedule I - Nitrogen Fixation Rates for Dryland Conditions, in (3)(c)(i) of New Rule I, and that Schedule I be replaced with the following language: (1) for annual crops such as chickpea, lentil, and peas, the nitrogen benefits average about ten pounds per year; and (2) for perennial legumes such as alfalfa or sweet clover, nitrogen needs must be reduced by 35 to 50 pounds per acre. The basis for this request is that nitrogen fixation rates vary widely and are influenced by climate, annual variation, management practices, and other factors. RESPONSE: The board agrees that nitrogen fixation rates can vary depending on the factors identified in the comment. Schedule I has been replaced with a nitrogen reduction credit of ten pounds per acre for annual legumes and 35 to 50 pounds for perennial legumes, except for black medic, annual sweet clover, chick peas, and lentils. The board has retained the minimum rates contained in Schedule I because raising those minimum rates would be beyond the scope of this rulemaking. COMMENT 5: New Rule I(3)(b) requires that the CAFO complete a nutrient needs analysis for each crop based on Montana State University (MSU) Extension Service Publication 161. The problem with using this document is: (1) this bulletin is not up to date; (2) there are other justifiable sources (more recent research information, neighboring agricultural universities, and private sector research); and (3) the local Extension agent may not be the best source for alternative information though they are a conduit back to the university. MSU Extension recommends that the board allow other relevant research-based publications in addition to Publication 161 and that, for crops not listed in Publication 161, the rule allow other qualified consultants such as Certified Crop Advisors (CCAs) or certified professional agronomists. These two simple changes would prevent unnecessary and detrimental restrictions on the most current and best science available for developing NMPS. These simple changes should not open up the flood gates for invalid methods of NMP development. The reality is that there are more consultants working in this area than local extension agents. Most of them are CCAs as are many agents. RESPONSE: The board has amended New Rule I(3)(b) to allow other relevant sources of information to be used in determining the nutrient needs of the crop and, for crops not listed in Publication 161, the rule is amended to allow the nutrient needs to be based on qualified sources of information. The rule is also amended to require the CAFO to submit the source of this information in the nutrient management plan. In accordance with 40 CFR 122.23, the department is required to review this information and, after providing for public comment, determine that this information meets the intent of 40 CFR 122.42(e) and 40 CFR 412. The board is not limiting the qualifications of the individuals providing this information to CCAs or certified professional agronomists as suggested by the comment. Professional licensing and certification in Montana is within the jurisdiction of the Department of Labor and Industry, Business Standards Division and is outside of the scope of this rulemaking. 4. No other comments or testimony were received. Reviewed by: BOARD OF ENVIRONMENTAL REVIEW /s/ John F. North By: /s/ Joseph W. Russell JOHN F. NORTH JOSEPH W. RUSSELL, M.P.H. Rule Reviewer Chairman Certified to the Secretary of State, April 1, 2013.
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