Current through Register Vol. 39, No. 6, September 16, 2024
This Rule sets forth a process by which agricultural
operations in the Jordan watershed will collectively limit their nitrogen and
phosphorus loading to the Jordan Reservoir, as prefaced in Rule
15A NCAC
02B .0262. This process is as follows:
(1) PURPOSE. The purposes of this Rule are to
achieve and maintain the percentage reduction goals defined in Rule
15A NCAC
02B .0262 for the collective agricultural
loading of nitrogen and phosphorus from their respective 1997-2001 baseline
levels, to the extent that best available accounting practices will allow. This
Rule aims to achieve the goals set out in
15A NCAC
02B .0262 within six to nine years, as set
out in Sub-Item (5)(b) of this Rule. Additionally this Rule will protect the
water supply uses of Jordan Reservoir and of designated water supplies
throughout the Jordan watershed.
(2) PROCESS. This Rule requires accounting
for agricultural land management practices at the county and subwatershed
levels in the Jordan watershed, and implementation of practices by farmers in
these areas to collectively achieve the nutrient reduction goals on a county
and subwatershed basis. Producers may be eligible to obtain cost share and
technical assistance from the NC Agriculture Cost Share Program and similar
federal programs to contribute to their counties' nutrient reductions. A
Watershed Oversight Committee, and if needed Local Advisory Committees, will
develop strategies, coordinate activities, and account for progress.
(3) LIMITATION. This Rule may not fully
address significant nutrient sources relative to agriculture in that it does
not directly address atmospheric sources of nitrogen to the Jordan watershed
from agricultural operations located both within and outside of the Jordan
watershed. As better information becomes available from ongoing research on
atmospheric nitrogen loading to the Jordan watershed from these sources, and on
measures to control this loading, the Commission may undertake separate
rule-making to require such measures it deems necessary from these sources to
support the goals of the Jordan Reservoir Nutrient Sensitive Waters
Strategy.
(4) APPLICABILITY. This
Rule shall apply to all persons engaging in agricultural operations in the
Jordan watershed, including those related to crops, horticulture, livestock,
and poultry. This Rule applies to livestock and poultry operations above the
size thresholds in this Item in addition to requirements for animal operations
set forth in general permits issued pursuant to
G.S.
143-215.10C. Nothing in this Rule shall be
deemed to allow the violation of any assigned surface water, groundwater, or
air quality standard by any agricultural operation, including any livestock or
poultry operation below the size thresholds in this Item. This Rule does not
require specific actions by any individual person or operation if the county or
counties in which they conduct operations can collectively achieve their
nutrient reduction targets, in the manner described in Item (5) of this Rule,
within six years of the effective date of this Rule. For the purposes of this
Rule, agricultural operations are activities that relate to any of the
following pursuits:
(a) The commercial
production of crops or horticultural products other than trees. As used in this
Rule, commercial shall mean activities conducted primarily for financial
profit.
(b) Research activities in
support of such commercial production.
(c) The production or management of any of
the following number of livestock or poultry at any time, excluding nursing
young:
(i) 5 or more horses;
(ii) 20 or more cattle;
(iii) 20 or more swine not kept in a feedlot,
or 150 or more swine kept in a feedlot;
(iv) 120 or more sheep;
(v) 130 or more goats;
(vi) 650 or more turkeys;
(vii) 3,500 or more chickens; or
(viii) Any single species of any other
livestock or poultry, or any combination of species of livestock or poultry,
that exceeds 20,000 pounds of live weight at any time.
(5) METHOD FOR RULE
IMPLEMENTATION. This Rule shall be implemented initially by a Watershed
Oversight Committee and, if needed, through a cooperative effort between the
Watershed Oversight Committee and Local Advisory Committees in each county. The
membership, roles and responsibilities of these committees are set forth in
Items (7) and (8) of this Rule. Committees' activities shall be guided by the
following constraints:
(a) Within three years
after the effective date of this Rule, the Watershed Oversight Committee shall
provide the Commission with an initial assessment of the extent to which
agricultural operations in each subwatershed have achieved the nitrogen goals
identified in Item (1) of this Rule through activities conducted since the
baseline period. The Watershed Oversight Committee shall use the accounting
process described in Items (7) and (8) of this Rule to make its assessment.
Should the Commission determine at that time that a subwatershed nitrogen goal
has not been achieved, then Local Advisory Committees shall be formed in that
subwatershed according to Item (8) of this Rule to further progress toward the
goal by developing local strategies to guide implementation.
(b) For any subwatershed identified in
Sub-Item (5)(a) of this Rule as not having achieved its nitrogen goal within
three years, the Commission shall within six years after the effective date of
this Rule again determine, with input from the Watershed Oversight Committee,
whether the subwatershed has achieved its nitrogen goal. Should the Commission
determine at that time that a subwatershed has not achieved its goal, then it
shall require additional best management practice (BMP) implementation as
needed to ensure that the goal is met within nine years after the effective
date of this Rule. The Commission may also consider alternative recommendations
from the Watershed Oversight Committee based on its assessment of the
practicability of agricultural operations meeting the subwatershed goal. Should
the Commission require some form of individual compliance, then it shall also
subsequently approve a framework proposed by the Watershed Oversight Committee
for allowing producers to obtain credit through offsite measures. Such offsite
measures shall meet the requirements of
15A NCAC
02B .0273(2) - (4). The
Commission shall review compliance with the phosphorus goals within six years
of the effective date and shall require additional BMP implementation within
any subwatershed as needed to meet its goal within an additional three years
from that date.
(c) Should a
committee called for under Sub-Item (5)(a) of this Rule not form nor follow
through on its responsibilities such that a local strategy is not implemented
in keeping with Item (8) of this Rule, the Commission shall require all persons
subject to this Rule in the affected area to implement BMPs as needed to meet
the goals of this Rule.
(6) RULE REQUIREMENTS FOR INDIVIDUAL
OPERATIONS. Persons subject to this Rule shall adhere to the following
requirements:
(a) If the initial accounting
required under Sub-Item (5)(a) of this Rule determines that agricultural
operations have not already collectively met the nitrogen reduction goals,
persons subject to this Rule shall register their operations with their Local
Advisory Committee according to the requirements of Item (8) of this Rule
within four years after the effective date of this Rule. Within six years after
the effective date of this Rule, such persons are not required to implement any
specific BMPs but may elect to contribute to the collective local nutrient
strategy by implementing any BMPs they choose that are recognized by the
Watershed Oversight Committee as nitrogen-reducing or phosphorus-reducing
BMPs.
(b) Should a local strategy
not achieve its goal after six years, operations within that local area may
face specific implementation requirements, as described under Sub-Item (5)(b)
of this Rule.
(c) Producers may
generate nitrogen loading reduction credit for sale to parties subject to or
operating under other nutrient strategy rules in the Jordan watershed under
either of the following circumstances and only pursuant to the conditions of
Sub-Item (7)(b)(vii) of this Rule and
15A NCAC
02B .0273:
(ii) If the subwatershed in which they
implement nitrogen-reducing practices has achieved its nitrogen goal.
(ii) At any point during the implementation
of this Rule, a pasture-based livestock operation that implements an excluded
buffer BMP on part or all of its operation may sell that portion of the
nitrogen reduction credit attributed to the buffer restoration aspect of the
practice, while the credit attributed to the exclusion aspect shall accrue to
the achievement or maintenance of the goals of this Rule.
(7) WATERSHED OVERSIGHT COMMITTEE.
The Watershed Oversight Committee shall have the following membership, role and
responsibilities:
(a) MEMBERSHIP. The Director
shall be responsible for forming a Watershed Oversight Committee within two
months of the effective date of this Rule. Until such time as the Commission
determines that long-term maintenance of the nutrient loads is assured, the
Director shall either reappoint members or replace members at least every six
years. The Director shall solicit nominations for membership on this Committee
to represent each of the following interests, and shall appoint one nominee to
represent each interest except where a greater number is noted. The Director
may appoint a replacement at any time for an interest in Sub-Items (7)(a)(vi)
through (7)(a)(x) of this Rule upon request of representatives of that
interest:
(i) Division of Soil and Water
Conservation;
(ii) United States
Department of Agriculture-Natural Resources Conservation Service (shall serve
in an "ex-officio" non-voting capacity and shall function as a technical
program advisor to the Committee);
(iii) North Carolina Department of
Agriculture and Consumer Services;
(iv) North Carolina Cooperative Extension
Service;
(v) Division of Water
Quality;
(vi) Three environmental
interests, at least two of which are residents of the Jordan
watershed;
(vii) General farming
interests;
(viii) Pasture-based
livestock interests;
(ix) Equine
livestock interests;
(x) Cropland
farming interests; and
(xi) The
scientific community with experience related to water quality problems in the
Jordan watershed.
(b)
ROLE. The Watershed Oversight Committee shall:
(i) Develop tracking and accounting methods
for nitrogen and phosphorus loss. Submit methods to the Water Quality Committee
of the Commission for approval based on the standards set out in Sub-Item
(7)(c) of this Rule within two years after the effective date of this
Rule;
(ii) Identify and implement
future refinements to the accounting methods as needed to reflect advances in
scientific understanding, including establishment or refinement of nutrient
reduction efficiencies for BMPs;
(iii) Within three years after the effective
date of this Rule, collect data needed to conduct initial nutrient loss
accounting for the baseline period and the most current year feasible, perform
this accounting, and determine the extent to which agricultural operations have
achieved the nitrogen loss goal and phosphorus loss trend indicators for each
subwatershed. Present findings to the Water Quality Committee of the
Commission;
(iv) Review, approve,
and summarize local nutrient strategies if required pursuant to Sub-Item (5)(a)
of this Rule and according to the timeframe identified in Sub-Item (8)(c)(ii)
of this Rule. Provide these strategies to the Division;
(v) Establish requirements for, review,
approve and summarize local nitrogen and phosphorus loss annual reports as
described under Sub-Item (8)(e) of this Rule, and present these reports to the
Division annually, until such time as the Commission determines that annual
reports are no longer needed to fulfill the purposes of this Rule. Present the
annual report six years after the effective date to the Commission. Should that
annual report find that a subwatershed has not met its nitrogen goal, include
an assessment in that report of the practicability of producers achieving the
goal within nine years after the effective date, and recommendations to the
Commission as deemed appropriate;
(vi) Obtain nutrient reduction efficiencies
for BMPs from the scientific community associated with design criteria
identified in rules adopted by the Soil and Water Conservation Commission,
including
15A NCAC
06E .0104 and
15A NCAC
06F .0104; and
(vii) Investigate and, if feasible, develop
an accounting method to equate implementation of specific nitrogen-reducing
practices on cropland or pastureland to reductions in nitrogen loading
delivered to streams. Quantify the nitrogen credit generated by such practices
for purposes of selling or buying credits. Establish criteria and a process as
needed for the exchange of nitrogen credits between parties meeting the
criteria of either Sub-Item (5)(b) or Sub-Item (6)(c) of this Rule with parties
subject to or operating under other nutrient strategy rules in the Jordan
watershed pursuant to the requirements of
15A NCAC
02B .0273. Approve eligible trades, and
ensure that such practices are accounted for and tracked separately from those
contributing to the goals of this Rule.
(c) ACCOUNTING METHODS. Success in meeting
this Rule's purpose will be gauged by estimating percentage changes in nitrogen
loss from agricultural lands in the Jordan watershed and by evaluating broader
trends in indicators of phosphorus loss from agricultural lands in the Jordan
watershed. The Watershed Oversight Committee shall develop accounting methods
that meet the following requirements:
(i) The
nitrogen method shall quantify baseline and annual total nitrogen losses from
agricultural operations in each county, each subwatershed, and for the entire
Jordan watershed;
(ii) The nitrogen
and phosphorus methods shall include a means of tracking implementation of
BMPs, including number, type, and area affected;
(iii) The nitrogen method shall include a
means of estimating incremental nitrogen loss reductions from actual BMP
implementation and of evaluating progress toward and maintenance of the
nutrient goals from changes in BMP implementation, fertilization, individual
crop acres, and agricultural land use acres;
(iv) The nitrogen and phosphorus methods
shall be refined as research and technical advances allow;
(v) The phosphorus method shall quantify
baseline values for and annual changes in factors affecting agricultural
phosphorus loss as identified by the phosphorus technical advisory committee
established under
15A NCAC
02B .0256(f)(2)(C). The
method shall provide for periodic qualitative assessment of likely trends in
agricultural phosphorus loss from the Jordan watershed relative to baseline
conditions;
(vi) Phosphorus
accounting may also include a scientifically valid, survey-based sampling of
farms in the Jordan watershed for the purpose of conducting field-scale
phosphorus loss assessments and extrapolating phosphorus losses for the Jordan
watershed for the baseline period and at periodic intervals; and
(vii) Aspects of pasture-based livestock
operations that potentially affect nutrient loss and are not captured by the
accounting methods described above shall be accounted for in annual reporting
by quantifying changes in the extent of livestock-related nutrient controlling
BMPs. Progress may be judged based on percent change in the extent of
implementation relative to subwatershed percentage goals identified in Rule
.0262 of this Section.
(8) LOCAL ADVISORY COMMITTEES. Local Advisory
Committees required by Sub-Item (5)(a) of this Rule shall be formed for each
county within the applicable subwatershed within three years and three months
after the effective date of this Rule, and shall have the following membership,
roles, and responsibilities:
(a) MEMBERSHIP. A
Local Advisory Committee shall be appointed as provided for in this Item. It
shall terminate upon a finding by the Commission that it is no longer needed to
fulfill the purposes of this Rule. Each Local Advisory Committee shall consist
of:
(i) One representative of the county Soil
and Water Conservation District;
(ii) One representative of the county office
of the United States Department of Agriculture Natural Resources Conservation
Service;
(iii) One representative
of the North Carolina Department of Agriculture and Consumer Services whose
regional assignment includes the county;
(iv) One representative of the county office
of the North Carolina Cooperative Extension Service;
(v) One representative of the North Carolina
Division of Soil and Water Conservation whose regional assignment includes the
county; and
(vi) At least two
farmers who reside in the county.
(b) APPOINTMENT OF MEMBERS. The Director of
the Division of Water Quality and the Director of the Division of Soil and
Water Conservation of the Department of Environment and Natural Resources shall
appoint members described in Sub-Items (8)(a)(i), (8)(a)(ii), (8)(a)(iv), and
(8)(a)(v) of this Rule. The Director of the Division of Water Quality, with
recommendations from the Director of the Division of Soil and Water
Conservation and the Commissioner of Agriculture, shall appoint the members
described in Sub-Items (8)(a)(iii) and (8)(a)(vi) of this Rule from persons
nominated by nongovernmental organizations whose members produce or manage
agricultural commodities in each county. Members of the Local Advisory
Committees shall serve at the pleasure of their appointing authority.
(c) ROLE. The Local Advisory Committees
shall:
(i) Conduct a registration process for
persons subject to this Rule. This registration process shall be completed
within 48 months after the effective date of this Rule. The registration
process shall request the type and acreage of agricultural operations. It shall
provide persons with information on requirements and options under this Rule,
and on available technical assistance and cost share options;
(ii) Develop local nutrient control
strategies for agricultural operations, pursuant to Sub-Item (8)(d) of this
Rule, to meet the nitrogen and phosphorus goals of this Rule. Strategies shall
be submitted to the Watershed Oversight Committee no later than 46 months after
the effective date of this Rule;
(iii) Ensure that any changes to the design
of the local strategy will continue to meet the nutrient goals of this Rule;
and
(iv) Submit reports to the
Watershed Oversight Committee, pursuant to Sub-Item (8)(e) of this Rule,
annually until such time as the Commission determines that annual reports are
no longer needed to fulfill the purposes of this Rule.
(d) LOCAL NUTRIENT CONTROL STRATEGIES. Local
Advisory Committees shall develop county nutrient control strategies that meet
the following requirements. If a Local Advisory Committee fails to submit a
nutrient control strategy required in Sub-Item (8)(c)(ii) of this Rule, the
Commission may develop one based on the accounting methods that it approves
pursuant to Sub-Item (7)(b)(i) of this Rule. Local strategies shall meet the
following requirements:
(i) Local nutrient
control strategies shall be designed to achieve the required nitrogen loss
reduction goals and qualitative trends in indicators of agricultural phosphorus
loss within six years after the effective date of this Rule, and to maintain
those reductions in perpetuity or until such time as this Rule is revised to
modify this requirement.
(ii) Local
nutrient control strategies shall specify the numbers, acres, and types of all
agricultural operations within their areas, numbers of BMPs that will be
implemented by enrolled operations and acres to be affected by those BMPs,
estimated nitrogen and phosphorus loss reductions, schedule for BMP
implementation, and operation and maintenance requirements.
(e) ANNUAL REPORTS. The Local
Advisory Committees shall be responsible for submitting annual reports for
their counties to the Watershed Oversight Committee until such time as the
Commission determines that annual reports are no longer needed to fulfill the
purposes of this Rule. The Watershed Oversight Committee shall determine
reporting requirements to meet these objectives. Those requirements may include
information on BMPs implemented by individual farms, proper BMP operation and
maintenance, BMPs discontinued, changes in agricultural land use or activity,
and resultant net nitrogen loss and phosphorus trend indicator
changes.
Authority
G.S.
143-214.1;
143-214.5;
143-214.7;
143-215.3(a)(1);
143-215.6A;
143-215.6B;
143-215.6C; 143 215.8B;
143B-282(c); 143B-282(d); S.L. 2001-355; S.L. 2005-190; S.L.
2006-259;
Eff. August 11, 2009;
See S.L.
2013-395.
