Current through Register Vol. 39, No. 6, September 16, 2024
This Rule sets forth a staged process, as prefaced in
15A NCAC
02B .0275, by which agricultural operations
in the Falls watershed will collectively limit their nitrogen and phosphorus
loading to the Falls Reservoir. This process is as follows:
(1) PURPOSE. The purposes of this Rule are to
achieve and maintain the percentage reduction objectives defined in
15A NCAC
02B .0275 for the collective agricultural
loading of nitrogen and phosphorus from their respective 2006 baseline levels,
to the extent that best available accounting practices will allow, in two
stages. Stage I shall be 10 years and Stage II shall be 15 years, as set out in
Item (5) of this Rule. Additionally this Rule will protect the water supply
uses of the Falls Reservoir.
(2)
PROCESS. This Rule requires accounting for agricultural land management
practices at the county level in the Falls watershed, and implementation of
practices by farmers to collectively achieve the nutrient reduction objectives
on a watershed 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 Local Advisory Committees will develop
strategies, coordinate activities, and account for progress.
(3) LIMITATION. This Rule does not fully
address significant agricultural nutrient sources in that it does not directly
address atmospheric sources of nitrogen to the Falls watershed from
agricultural operations located both within and outside of the Falls watershed.
As better information becomes available from ongoing research on atmospheric
nitrogen loading to the Falls 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
objectives of the Falls Nutrient Strategy.
(4) APPLICABILITY. This Rule shall apply to
all persons engaging in agricultural operations in the Falls 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 shall not
apply to dedicated land application sites permitted under
15A NCAC
02T .1100. This Rule does not require
specific actions by any individual person or operation if agriculture in the
Falls watershed can collectively achieve its Stage I nutrient reduction
objectives, in the manner described in Item (5) of this Rule, by calendar year
2020. If the Stage I nutrient reduction objectives are not met by calendar year
2020, Stage II of implementation shall require specific actions by individuals
and operations. 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) Five
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 in two stages and 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. Committee's
activities shall be guided by the following:
(a) In Stage I, agriculture shall achieve a
collective 20 percent reduction in nitrogen loading and a 40 percent reduction
in phosphorus loading relative to the 2006 baseline by calendar year
2020.
(b) In Stage II, beginning in
calendar year 2021 agriculture shall achieve a collective 40 percent reduction
in nitrogen loading and a 77 percent reduction in phosphorus loading relative
to the 2006 baseline by calendar year 2035.
(c) By January 15, 2013, the Watershed
Oversight Committee shall provide the Commission with an initial assessment of
the extent to which agricultural operations in the Falls watershed have
achieved the Stage I nitrogen and phosphorus reduction objectives 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.
(d) If annual reporting following the 10th
year of implementation indicates that agriculture has not collectively achieved
its Stage I nitrogen and phosphorus reduction objectives identified in this
Item, Stage II shall include specific implementation requirements for
individual operators. Specifically, within five years of the start of Stage II,
cropland operators shall establish vegetated riparian buffers adjacent to
streams on all cropland where such buffers do not already exist. Additionally,
pastured livestock operators shall establish excluded vegetated riparian
buffers adjacent to streams where such excluded buffers do not already exist.
Streams to which these requirements apply shall be those that meet the
classification of intermittent or perennial streams using the September 2010
version of the
Identification Methods for the Origins of Intermittent
and Perennial Streams Manual published by the Division. Existing and
newly established riparian buffers shall be a minimum of 20 feet in width with
criteria further defined by the Watershed Oversight Committee.
The Commission may also consider alternative
recommendations from the Watershed Oversight Committee based on the Committee's
assessment of the practicability of agricultural operations meeting the Stage I
objectives. Should the Commission accept some alternative 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 .0282.
(e) Should a committee called for under Item
(5) 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 objectives of this Rule.
(6) RULE REQUIREMENTS FOR
INDIVIDUAL OPERATIONS. Persons subject to this Rule shall adhere to the
following requirements:
(a) Persons subject to
this Rule shall register their operations with their Local Advisory Committee
according to the requirements of Item (8) of this Rule;
(b) Persons are not required to implement any
specific BMPs in Stage I, with the exception of Sub-Item (d) of this Item, 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;
(c) The Division shall require that residuals
application, animal waste application, and surface irrigation pursuant to
permits issued under
15A NCAC
02T .1100,
15A NCAC
02T .1300, and
15A NCAC
02T .0500 respectively, to lands within the
Falls watershed be done in a manner that minimizes the potential for nitrogen
and phosphorus loading to surface waters by implementing the following
measures:
(i) Animal waste application
operators subject to t the permitting requirements in this Sub-item shall meet
Realistic Yield Expectation based nitrogen application rates and shall apply
phosphorus in compliance with guidance established in the most recent version
of North Carolina Agricultural Research Service's Technical Bulletin 323,
"North Carolina Phosphorus Loss Assessment: I Model Description and II.
Scientific Basis and Supporting Literature" developed by the Department of Soil
Science and Biological and Agricultural Engineering at North Carolina State
University. The Division shall modify all existing permits for affected lands
to include these requirements upon their next renewal after effective date, and
shall include these requirements in all new permits issued after effective
date. Permittees shall be required to comply with this condition upon permit
issuance or renewal as applicable; and
(ii) Residual application and surface
irrigation operators subject to the permitting requirements in this Sub-item
shall meet Realistic Yield Expectation based nitrogen application rates and
shall conduct and provide to the Division annual assessments of their soil test
phosphorus index results and phosphorus loading rates. At such time as data
quantifying the fate and transport of chemically bound phosphorus are made
available, the Division may make recommendations to the Commission to consider
whether revisions to the requirements of this Rule are needed and may initiate
rulemaking or any other action allowed by law.
(d) Should a local strategy not achieve its
Stage I objectives by calendar year 2020; operations within that local area
shall face specific implementation requirements, as described under Sub-Item
(5)(d) 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 by March 15, 2011.
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 of the Division of Water Quality
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
or by the request of the Commissioner of Agriculture:
(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 Falls
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
Falls watershed.
(b)
ROLE. The Watershed Oversight Committee shall:
(i) Develop tracking and accounting methods
for nitrogen and phosphorus loading and 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 by March 15, 2012;
(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) By January 15, 2013, collect data
needed to conduct initial nutrient loading 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 Stage I nitrogen
loading objective and phosphorus loading trend indicators for the watershed and
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)(d) 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 loading annual reports as
described under Sub-Item (8)(e) of this Rule, and present the report to the
Division annually, until such time as the Commission determines that annual
reports are no longer needed to fulfill the purposes of Rule. Present a report
in January 2014 to the Commission. Should that report find that agriculture in
the watershed has not met its collective nitrogen or phosphorus objective,
include an assessment in that report of the practicability of producers
achieving the Stage I objective by calendar year 2020, 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 nutrient-reducing
practices on cropland or pastureland to reductions in nutrient loading
delivered to streams;
(viii)
Quantify the nitrogen and phosphorus credits generated by such practices for
the purpose of selling or buying credits; establish criteria and a process as
needed for the exchange of nutrient credits between parties subject to this
rule with each other or with parties subject to other nutrient strategy rules
in the Falls lake watershed pursuant to the requirements of
15A NCAC
02B .0282; obtain approval from the Division
for this trading program pursuant to the requirements of Rule .0282; approve
eligible trades; and ensure that such credits traded for purposes of meeting
this Rule are accounted for and tracked separately from those contributing to
the objectives of other rules of the Falls nutrient strategy.
(c) ACCOUNTING METHODS. Success in
meeting this Rule's purpose will be gauged by estimating percentage changes in
nitrogen loading from agricultural lands in the Falls watershed and by
evaluating broader trends in indicators of phosphorus loading from agricultural
lands in the Falls watershed. The Watershed Oversight Committee shall develop
accounting methods that meet the following requirements:
(i) The nitrogen method shall estimate
baseline and annual total nitrogen loading from agricultural operations in each
county and for the entire Falls 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
loading reductions from actual BMP implementation and of evaluating progress
toward and maintenance of the nutrient objectives 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 loading 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 loading from the Falls watershed relative to baseline
conditions;
(vi) Phosphorus
accounting may also include a scientifically valid, survey-based sampling of
farms in the Falls watershed for the purpose of conducting field-scale
phosphorus loading assessments and extrapolating phosphorus loading for the
Falls watershed for the baseline period and at periodic intervals;
and
(vii) Aspects of pasture-based
livestock operations that potentially affect nutrient loading and are not
captured by the accounting methods described above shall be accounted for in
annual reporting to the extent that advances in scientific understanding
reasonably allow. Such accounting shall, at a minimum, quantify 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 percentage
objectives identified in Item (5) of this Rule.
(8) LOCAL ADVISORY COMMITTEES. Local Advisory
Committees shall be formed for each county within the watershed by January 15,
2012, 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;
(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;
(vi) At least two farmers
who reside in the county; and
(vii)
One representative of equine livestock interests.
(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
authorities.
(c) ROLE. The Local
Advisory Committees shall:
(i) Conduct a
registration process for persons subject to this Rule. This registration
process shall be completed by January 15, 2012. The registration process shall
request at a minimum 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 objectives of this Rule. Strategies
shall be submitted to the Watershed Oversight Committee by July 2012;
(iii) Ensure that any changes to the design
of the local strategy will continue to meet the nutrient objectives of this
Rule; and
(iv) Submit reports to
the Watershed Oversight Committee, pursuant to Sub-Item (8)(e) of this Rule,
annually beginning in calendar year 2012 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 nutrient
control strategies. 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 loading reduction
objectives and qualitative trends in indicators of agricultural phosphorus
loading by calendar year 2020, and to maintain those reductions in perpetuity
or until such time as this rule is revised to modify this requirement;
and
(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 loading 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 loading and phosphorus trend indicator changes. The
annual reports in 2016 and 2026 shall address agriculture's success in
complying with the load reduction requirements described in Items (5)(a) and
(5)(b) of this Rule and shall include adjustments to address deficiencies to
achieve compliance.
(f) PROGRESS.
In 2016 the Division of Water Quality, in consultation with the Watershed
Oversight Committee, shall submit a report to the Commission gauging the extent
to which reasonable progress has been achieved towards the Stage I objectives
described in this Rule.
Authority
G.S.
143-214.1;
143-214.3;
143-214.5;
143-214.7;
143-215.1;
143-215.3;
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. 2005-190; S.L. 2006-259; S.L. 2009-337; S.L. 2009-486;
Eff.
January 15, 2011 (this permanent rule replaces the temporary rule approved by
the RRC on December 16, 2010).
