Ohio Senate Passes Algae Control Legislation

Thursday, February 19th, 2015
Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law

Legislation intended to reduce the occurrence of harmful algae blooms in Ohio passed the Ohio Senate on February 18 after a fast track through the Senate Agriculture Committee.  The enacted version of Senate Bill 1 varies somewhat from the original bill introduced on February 2 by Senators Randy Gardner and Bob Peterson, but maintains a primary goal of prohibiting certain types of fertilizer and manure applications in Ohio's western basin in winter and rainfail weather conditions along with addressing other potential contributors to the algae problem. 

Revised from the original SB 1 were proposals to transfer the Ohio Agricultural Pollution Abatement Program to the Ohio Department of Agriculture, create a new Office of Harmful Algal Blooms and prohibit all open lake disposal of dredge material in Lake Erie and its tributaries.   The committee also tabled several attempts to amend the bill before sending it to the full Senate.  Those proposals included extending the bill's fertilizer and manure application prohibitions to the entire Lake Erie watershed, establishing a daily fine for violators of $333, removing the five year sunset, changing certification requirements for anyone using manure from a facility regulated by Ohio's Livestock Environmental Permitting Program and requiring standards for testing water for microcystin. 

The legislation passed by the Senate includes the following provisions:

Application of fertilizer and manure

  • Prohibits the surface application of fertilizer or manure in the western basin of Lake Erie on frozen or snow-covered soil or when the top two inches of soil are saturated from precipitation.
  • Prohibits the application of fertilizer in the western basin in granular form when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a 12-hour period.
  • Prohibits the application of manure in the western basin when the local weather forecast contains greater than a 50% chance of precipitation exceeding one-half inch in a 24-hour period.
  • Provides exceptions from the prohibition for applications of fertilizer or manure that are injected into the ground, incorporated within 24 hours of surface application or applied onto a growing crop.
  • Provides an exception from the prohibition for applications of manure made in the event of an emergency with written consent of the chief of the division of soil and water resources and in accordance with procedures established in the USDA natural resources conservation service practice standard code 590.
  • Clarifies that the prohibition on fertilizer or manure applications does not apply to or affect any restrictions for facilities permitted under Ohio’s concentrated animal feeding facilities law.
  • Defines “fertilizer” as nitrogen or phosphorous.
  • Defines the “western basin” as the St. Mary’s, Auglaize, Blanchard, Sandusky, Cedar Portage, Lower Maumee, Upper Maumee, Tiffin, St. Joseph, Ottawa and River Raisin watersheds.
  • Grants investigation and enforcement authority for potential violations to the Director of Agriculture for fertilizer applications and the Chief of the Division of Soil and Water Resources for manure applications and allows each agency to establish by rule the civil penalty amounts for violations.
  • Requires a “sunsetting” of the above prohibition in five years, but requires the agriculture committees of the Ohio House and Senate to jointly review the effectiveness of the prohibitions, determine whether to prevent the sunset and to submit a report of findings to the Governor of Ohio.

Ohio Agricultural Pollution Abatement Program

  • Declares that it is the intent of the General Assembly that legislation transferring the administration and enforcement of the Agricultural Pollution Abatement Program from the Department of Natural Resources to the Department of Agriculture shall be enacted not later than July 1, 2015.

Harmful Algae Management

  • Appoints the Director of the Ohio Environmental Protection Agency or his/her designee as the coordinator of harmful algae management and response.
  • Requires the Director of Environmental Protection to consult with specified state and local officials and representatives to develop actions that protect against cyanobacteria in the western basin and public water supplies and that manage wastewater to limit nutrient loading into the western basin.
  • Requires the Director to develop and implement protocols and actions regarding monitoring and management of cyanobacteria and other agents that may result in harmful algal production.

Nutrient loading to Ohio watersheds

  • Authorizes the Director of Environmental Protection to study, calculate and evaluate nutrient loading to Ohio watersheds from point and nonpoint sources and to determine the most environmentally beneficial and cost-effective mechanisms to reduce nutrient loading.
  • Requires the Director or the Director's designee to report and update the study's results to coincide with the release of the Ohio Integrated Water Quality Monitoring and Assessment Report.

Phosphorous monitoring for publicly owned treatment works

  • Requires certain publicly owned treatment work to begin monthly monitoring of total and dissolved phosphorous by December 1, 2016.
  • Requires a publicly owned treatment works that is not subject to a specified phosphorous effluent limit on the bill's effective date to complete and submit an optimization study that evaluates its ability to reduce phosphorous to that limit.

Dredged material in Lake Erie and tributaries

  • Beginning on July 1, 2020, prohibits deposits of dredged material from harbor or navigation maintenance activities in Ohio’s portion of Lake Erie and direct tributaries of the lake unless authorized by the Director of Ohio EPA.
  • Allows the Ohio EPA Director to authorize a deposit of dredged material for confined disposal facilities; beneficial use; beach nourishment; placement in the littoral drift; habitat restoration and projects involving amounts of dredged material of less than 10,000 cubic yards.
  • Requires the Ohio EPA Director to endeavor to work with the U.S. Army Corps of Engineers on long-term planning for the disposition of dredged materials.

Lead contamination

  • Revises the definition of "lead free" and prohibits using or selling certain plumbing supplies and materials that are not lead free for public water systems or in a facility providing water for human consumption, with stated exceptions.

Emergency declaratation

  • The bill declares an emergency and would be effective immediately.

Visit this link to review SB 1.  The Ohio House of Representatives is currently considering its proposal to address algal blooms, with action expected on the proposal in the next few weeks.

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