A top priority of the Iowa Pork Producers Association is keeping pork producers informed about state environmental regulations. IPPA recently hosted regional environmental quality and regulations meetings in six locations. The meetings were held June 12, 14 and 15 in Ainsworth, Waverly, Rock Rapids, Storm Lake, Carroll and Iowa Falls. In addition to the information from Eldon McAfee presented in this article, producers attending the meetings also heard from Steve Brinkman, nutrient management specialist with the Iowa Natural Resources Conservation Service, and Dr. Steve Hoff, ISU Agricultural and Biosystems Engineering.
McAfee’s presentation keyed on assisting producers with environmental compliance by focusing on proposed DNR rules, including the “director discretion rule,” and on DNR interpretations of existing rules. Iowa DNR regulations governing deadlines for manure management plans that must include a phosphorus index were discussed. Other issues discussed included environmental self audits, commercial fertilizer recordkeeping for producers with manure management plans, and nuisance lawsuits.
Director Discretion Rule
The EPC voted to approve the “director discretion rule” June 19. The rule will now go to the legislative Administrative Rules Review Committee in early August and if approved, will go into effect Aug. 23, 2006.
Under the proposed rule as adopted by EPC, the DNR will be able to evaluate any proposed confinement or open feedlot operation or proposed expansion to determine if there may be “potential adverse impacts on natural resources or the environment.” The DNR can consider the following factors:
(1) The likelihood manure will be applied to frozen or snow-covered cropland.
(2) The proximity of the structures or manure application areas to sensitive areas, including but not limited to publicly-owned land, designated areas, trout streams and karst terrain.
(3) Topography, slope, vegetation, potential means or routes of conveyance of manure spilled or land-applied. This factor includes but is not limited to whether the manure application areas involve cropland with predominant slopes greater than 9 percent without a conservation plan approved by the local soil and water conservation district or its equivalent and whether manure for land application is hauled or otherwise transported more than five miles.
(4) there was no “credible evidence that a serious health threat is posed to normal individuals one or more miles away.”
The judge concluded by noting that this decision does not protect the sow operation from liability for nuisance if it is ruled to be a nuisance after it is in operation.
If the DNR determines there are potential adverse impacts based on these factors, the DNR can:
(1) Establish permit conditions or require amendments to the manure management plan or nutrient management plan in addition to the minimum legal requirements,
(2) Establish permit conditions or require amendments on the location of structures or manure application, or
(3) Require other operational conditions necessary to avoid or minimize the adverse impacts.
Under the proposed rule, even if a confinement or open feedlot operation meets requirements in Iowa law for construction permits, manure management plans (nutrient management plans for open feedlots), separation distances for confinement operations, design requirements for open feedlots, and the master matrix for confinement operations, the DNR will be able to deny a construction permit, disapprove a manure or nutrient management plan, or prohibit construction of a proposed operation if the director determines that the operation “would reasonably be expected to”:
(1) Cause pollution of a water of the state
Steve Brinkman discussed the Iowa phosphorus index. He provided information regarding the three components of the P-index: erosion component, runoff component and the subsurface drainage component. He also offered some best management practices to manage phosphorus to keep the P that is applied in the field.
(1) Minimize P sources
a. Diet manipulation
i. Don’t overfeed phosphorus
ii. Phytase – get what you can from what you have
b. Manure technologies
i. There may be no reduction in P, but new technologies may increase options for hauling greater distances or marketing P sources.
(2) Fertilizer management
a. Apply at crop removal rates
(3) Conservation practices
a. Keep the P from leaving, keep the sediment in the field
b. Erosion is crucial when determining P and how it affects the P index
(4) No direct application of P to water By using technologies such as dietary manipulation and manure treatment, there will be less available P in the manure which will affect agronomic application rates. All of these coupled with practical erosion control, vegetative buffer strips will lead to improved water quality in Iowa.
Dr. Steve Hoff covered the specifics of the community assessment model. Hoff designed this model to assess the odor impact of a proposed site on the surrounding neighbors and locations of public interest within the community. Hoff outlined an example of how the model functions in relation to new construction of a swine facility. For more information on the program, consult Rex Hoppes with the Coalition to Support Iowa’s Farmers.
All speaker presentations are available for download on the “Resources and Information” page of www.iowapork.org, or by calling (800) 372-7675.
The DNR’s actions under this proposed rule could be appealed to an administrative law judge. The administrative law judge’s decision could then either be approved or disapproved by the EPC. The EPC’s decision could be appealed to court.
Because of the seemingly never-ending increase in environmental regulation, producers may want to consider conducting an environmental self-audit of their operations. Environmental self-audits are environmental reviews to determine compliance with sound environmental practices and current environmental regulation. Iowa’s environmental audit law was enacted in 1998 to encourage environmental responsibility by offering legal protections to any business which conducts a voluntary self-audit and takes appropriate corrective action. A livestock operation is a business which can qualify for the benefits of this law. In addition to assuring that an operation is not negatively affecting the environment and neighbors, conducting an environmental audit provides immunity from DNR penalties for a violation if the producer promptly and voluntarily discloses to DNR, before DNR begins an investigation, that an environmental violation was discovered in the audit. In most cases, immunity for an environmental violation includes immunity from penalties for late-filed manure management plans.
Manure Management Plans — Phosphorus Index
All confinement operations with more than 500 animal units (1,250 head of hogs over 55 lbs. or 5,000 hogs between 15 and 55 lbs.) built or expanded after May 31, 1985, need a manure management plan (MMP) based on the phosphorus (P) index. The P-based plans are phased in based on when an original MMP was submitted to the DNR.
As set out in this chart, if you submitted an original MMP between April 1, 2002, and Oct. 24, 2004, you must submit a P index with your first annual MMP update after Aug. 25, 2006. If your plan is in this category, you may have received or will receive a letter from the DNR stating that you need to update your plan to include the P index. However, even if you aren’t notified by DNR, the rules require that you comply with the P index MMP requirements that apply to your operation.
If you receive a letter from DNR stating your next MMP annual update must include the P index, make sure that DNR’s information is correct based on this table. If it isn’t, contact DNR.
To prepare and submit an MMP that includes a P index, you need soil samples that meet DNR requirements. Each field must be sampled at least once every four years. Each soil sample must be limited to 10 acres. Each soil sample is required to have at least 10 soil cores distributed throughout the sampling area. Each core must include at least the top six inches of soil. Soil samples must be analyzed at a lab certified for the Iowa Department of Agriculture.
Manure Management Plans — Commercial Fertilizer Recordkeeping
Producers with manure management plans are required to keep records of manure application such as the method (injection, incorporation, etc.), date(s), field location, number of acres, and application rate for the manure applied. However, beginning on Aug. 25, 2005, additional new recordkeeping requirements went into effect.
First, DNR rules require that if manure is applied to fields not owned, rented or leased for crop production by the livestock producer with the manure management plan, the livestock producer must obtain from the crop farmer “a statement specifying the planned commercial nitrogen and phosphorus fertilizer rates to be applied to each field receiving the manure.” A few key points about this requirement:
A livestock producer must have this statement at the time manure is applied so that manure application rates may be accurately determined.
The rules require that there be a statement for each field where manure is applied. Accordingly, a statement is not required for fields in a manure management plan where manure will not be applied for the next crop year.
The statement must be obtained from whoever farms the land. If the land is farmed by a tenant, the tenant may provide the statement.
The statement must be obtained even if the crop farmer does not plan to apply any additional nitrogen or phosphorus fertilizer.
DNR has developed a form which is posted on the DNR web site at www.iowadnr.com/afo/forms/5428167.doc. However, the rules do not require producers to use the DNR form. Producers may use a different format as long as the statement meets the rules requirement of “specifying the planned commercial nitrogen and phosphorus fertilizer rates to be applied to each field receiving the manure.”
Second, this DNR rule also requires that manure management plan records include the date and application rate of commercial nitrogen and phosphorus on fields that received manure. This requirement applies to land farmed by the livestock producer and also applies to commercial fertilizer applications on land farmed by someone else under a manure application agreement.
The rules provide some protection to livestock producers with manure management plans from enforcement actions by DNR for fertilizer applications by someone else that result in violation of the limits on nitrogen and phosphorus levels in a manure management plan. The rules state that in this situation, DNR cannot bring an enforcement action for noncompliance with a manure management plan or the recordkeeping requirements unless the livestock producer “knew or should have known” that application of commercial nitrogen or phosphorus would result in exceeding limits established in the manure management plan.
As part of their overall manure management program, livestock producers should review their manure agreements with landowners. To ensure compliance with DNR rules and proper application of manure and other soil nutrients, the agreements should clearly state that the crop producer will comply with the nitrogen and phosphorus limits in the manure management plan and that the crop producer will provide the dates and application rates of commercial nitrogen and phosphorus to the livestock producer.
Producers also should note that DNR rules continue to allow applications of nitrogen in addition to amounts allowed in a manure management plan if the additional applications are recommended by soil or crop nitrogen test for optimum crop yields.
Update on Nuisance lawsuits
The number of nuisance lawsuits filed in Iowa against agricultural operations has declined from a high of 13 in 2003 to two in 2004, three in 2005 and two so far this year. The presentation covered recent legal issues in nuisance lawsuits including anticipatory suits, statute of limitations, and liability in the context of contract feeding and landlord-tenant situations. See the May 2006 issue of the Iowa Pork Producer Magazine (p. 24) for a detailed discussion of protections from nuisance lawsuits available to producers and a recap of management practices producers may implement.