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Regulations, water quality and agriculture

By Matt Reese

With more talk lately about possible regulations and water quality in Ohio there is plenty to consider. Water quality problems are very complex and there are still many unknowns, particularly with regard to agriculture. This makes truly successful regulations extremely difficult to create and implement.

Kevin Elder recently retired as chief of the Ohio Department of Agriculture Division of Livestock Environmental Permitting and has seen every angle of regulations and agriculture in his career.

“We need to remember that laws and regulations are easy to make, but unless clear, consistent and enforceable, they will not be effective. Right now we have so many different regulations that it is very difficult for anyone to be in full compliance. There is one set of regulations for large permitted farms, another for the Western Basin of Lake Erie, another for small and medium farms, a different one for Grand Lake St. Marys, and still different ones for the rest of Ohio,” Elder said. “Also, some regulations that come through legislature or Governor’s executive orders may not match with the current best science. The other problem with more regulations is the ability to actually enforce them. More regulations without the ability to actually follow up with effective enforcement are counterproductive to everyone.”

Agriculture is already among the heaviest regulated industries in the state. And even when regulations are implemented, they certainly do not guarantee that all problems will be eliminated in agricultural situations where factors remain beyond human control. Fish kills in 2017 served as examples of the shortcomings of regulations.

“I was extremely disappointed in the way those incidents were portrayed by certain individuals and the media. A lot of conclusions were jumped to without allowing the complete investigation to be completed. In the end, the Certified Livestock Managers applied manure following all the best management practices. In one case, application of poultry manure was being done on wheat stubble with the farmer prepared to incorporate and plant a cover crop. The rain forecast was for less than 50% chance of less than a half inch of rainfall. The applicator began to apply around 8 in the morning, at 11 he stopped when it began to rain. They ended up with 2.4 inches of rainfall in just that small area. That caused the fish kill due to the ammonia concentrations,” Elder said. “In another case the dairy farmer hired a CLM to apply to an alfalfa field after taking a cutting of hay off. The application met all the BMPs. A rainfall event occurred three days later that caused a fish kill.

“All fish kills are unfortunate and should be minimized and prevented whenever possible, but sometimes bad things happen. Some individuals want a 100% guarantee that there will never be water quality impacts — that does not reflect reality. The Clean Water Act has an Agricultural Stormwater Exemption that when it first came out exempted any storm caused discharge. Later additional requirements were added that Best Management Practices had to be followed. More recently additional requirements were added to require looking at weather forecasts and not apply if there were more than 50% chance of raining more than a half-inch in next 24 hours. Even when those additional requirements are followed and storms clearly caused the impairment and fish kills, the farmers/applicators are still being penalized.”

There has also been a stir about the Ohio Environmental Protection Agency’s proposed “impaired” designation for Lake Erie, though that may have little additional regulatory impact.

“First of all, if you looked at the area of the lake that was considered impaired by Michigan and compared it to the near shore area that Ohio had already declared impaired, that area was already larger than Michigan’s. The declaration of the rest of the Ohio boundary will probably not have much additional impact,” Elder said. “The majority of the legal authority of that declaration is over point sources of pollution. Even though the designation may not really change things, agriculture does need to continue work to reduce/minimize their nutrient losses and water quality impacts.”

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