**Disclaimer: as recalled by Paul Hartley who is not a sage old man and who, at the time of writing this, was not in the mood for thorough fact checking.**
Back in the early days of Nutrient Management Plan (NMP) regulations in Kansas, many operations were getting their very first NMP. The EPA Final Rule for Concentrated Animal Feeding Operations (CAFOs) came out in 2003. There were a few national deadline extensions for having to get one, but the EPA regs had generally gone into effect by ’06 or ’07. During this time feedyards, dairies, and hog operations would call up KLAES and say, “Hey, I got this letter from KDHE saying I need something called a Nutrient Management Plan???” Our agronomists would work on it, the NMP would get reviewed and approved by KDHE, and everyone was “happy, happy, happy!”
After an initial NMP was approved, KDHE said it just needed to be kept updated when aspects of the plan were going to change. I believe KDHE/EPA originally wanted to see the application rates projected over the 5-year permit period. However, we recognized that most farmers do not plan their cropping intentions out 5 years with 100% confidence. Not only do crop intentions change, but so do manure and wastewater nutrient concentrations, soil test values, and other management factors that affect the application rate equation. KDHE was requiring manure and wastewater tests annually, as well as soil tests annually if waste was applied to a field in consecutive years. It made sense that if we were required to collect data at that frequency, then we might as well use that data to keep the NMP application rate information updated rather than spending our time projecting rates over a 5-year period. Therefore, it was decided to update the application rates and other aspects of the NMP with proposed changes and submit it annually in a short report dubbed an “NMP Update.” Only aspects of the plan that had changed, from the original NMP, were submitted with these NMP Updates, so we weren’t trying to seek reapproval on things that had already been approved. This went on for some time with many of our clients accumulating several years’ worth of NMP Updates on top of their original NMP. The NMP could have been considered a type of living document with the flexibility necessary for an adaptive management style needed for effective nutrient management with true benefits to water quality.
So, while all the aforementioned fun was happening in Kansas, the Waterkeeper Alliance (along with some other environmental groups) sued the EPA over the 2003 Final CAFO Rule. In response to the court’s decision, the EPA came out with a Final Revised Rule in 2008. (For some light reading, see regulations here: https://www.epa.gov/npdes/animal-feeding-operations-afos#guidance). Funny how many revisions can still be made to a “final” rule. The new revised rule required operators to submit an NMP for public review prior to obtaining or modifying National Pollutant Discharge Elimination System (NPDES) permit coverage, meaning that NMPs had to be submitted with permit applications. The permitting authority (state agency) had to review them and also allow the public an opportunity for review and comment. The rule also specified that certain site-specific information and protocols within the NMP must now be incorporated as terms of the NPDES permit. Now this is where things started to get complicated.
The 2008 Rule also addressed NMP application rates as a term of the permit by saying that a CAFO must choose between one of two approaches: the “linear approach” or the “narrative rate approach.” Under the linear approach, for each year of permit coverage and for each field, the intended crops to be planted, the timing and method of nutrient applications, and the resulting amount of nitrogen and phosphorus to be applied were to be considered terms of the permit. Under the narrative rate approach, the methodology used for calculating application rates was to be outlined in the NMP and adhered to as a term of the permit. Both NMP approaches required the annual maximum application rates be projected for the duration of permit coverage; however, the terms of the NMP were to be enforced differently. An NMP under the linear approach essentially created a management timeline that must be followed as a term of the permit. Any deviations from this timeline, for example a change to the cropping rotation or waste application method, could be considered a modification of the permit, triggering the public notice and comment process, or if gone un-reported could be considered an out-of-compliance violation of the permit. The narrative approach was intended to allow the producer the flexibility to adjust application rates based on real-time inputs and management decisions rather than be stuck with 5-year projections and the linear management timeline.
It took a couple years for this 2008 Rule to soak down to the state agency level and get implemented. In 2010 KDHE revised their Kansas Technical Standards for Nutrient Management to be consistent with the EPA 2008 Rule NMP requirements. (See Tech. Standard and Guidance Document under the Nutrient Management section here: http://www.kdheks.gov/feedlots/). They also created a guidance document to explain what information from the NMP would be considered terms of the permit under each approach and what changes to the NMP may require public notice. These are often referred to as “substantial” changes in the EPA regs. They wrote a generic NMP template, and a year or so later added a Land Application Summary page to the Annual Report template to allow reviewers to check application records for compliance with the approved NMP.
This all went down when I was still pretty green (KLAES start date: June 1, 2010). I remember sitting down on one of my very first days on the job and going over the new Technical Standard and Guidance Document with a highlighter. It didn’t mean that much to me at the time because I didn’t have any experience to relate it to, but even our senior staff didn’t seem quite sure how it would all shake out in terms of what we would need to do differently when developing NMPs and NMP Updates. I remember listening to several discussions about the NMP terms and various other requirements.
We made a few changes to our application rate calculations spreadsheets and our NMP report template in late 2010, but essentially our NMP writing process stayed the same as before. We would do full, narrative rate approach NMPs when a new client called in, and we would do NMP Updates for those repeat clients that desired it. We did our best to keep track of the NMP permit terms so as not to inadvertently trigger a public notice, but we continued to submit all annual NMP updates regardless of whether or not we thought it should be considered a substantial change in need of public notice or not. We received verbal notification that if the only thing needing a public notice was a change to the NMP, then it would be published in the Kansas Register and only that specific change would be open to public comment. No letters to landowners or notices to local newspapers would go out.
A few years after 2010, KDHE started to enforce the requirement that a full NMP be submitted for review with every permit modification and permit renewal rather than just reviewing the most recent NMP Update that had been submitted. We were a bit grumpy about this at first, but we complied and started redoing the full NMP anytime there was a permit renewal or permit modification pending. We try to keep an eye on the permit expiration dates for our clients throughout the year, so that we are aware of when to do a full NMP and when to do a simple Update, and are able to time the full NMP to correspond with the permit renewal process. We also try to stay on top of our engineering projects that result in a permit modification, and prepare a full NMP that can be submitted in coordination with the permit application and engineering plans. In approximately 2016, KDHE started to send reminder letters to facilities with deadlines for NMP submission at least 6 months ahead of the permit expiration.
Well, after all that worry about permit terms and public notice, KDHE did not seem to enforce the public noticing of NMP changes for several years. I think the first instance I remember of getting a letter about having to public notice a substantial NMP change by itself, without any other facility construction or modifications, was in late 2015. I speculate this lack of enforcement was mostly a result of the general backlog of permit renewals and permit modifications at KDHE the last several years. Until recently their staff was not large enough and did not have the free time to worry about these finer details of NMP compliance like checking NMP term changes or Annual Report records. Therefore, we kinda developed an “if it ain’t broke, don’t fix it” attitude, and the general process for what was submitted to KDHE…and when…remained the same.
Where do we go from here?
Recently (2017), KDHE has started reviewing Annual Report manure application records for compliance with the NMP. This has raised some questions (mostly fair and honest ones that needed a good raising) and prompted us to reconsider the process for how we do NMPs and NMP records and how our clients need to implement them to stay in compliance. At this point we don’t have all the answers about what a thorough yet streamlined NMP process should look like. However, our initial inclination is to shift closer to the process indicated by the 2008 CAFO Rule and KDHE NMP Guidance Document. Full NMPs will be revised and submitted with each permit renewal and application. As needed, proposed substantial changes will be identified and submitted for approval and public notice prior to implementation. Application rate recalculations covered in the narrative rate methodology will simply be included with the Annual Report. Clear records should be kept to document manure amounts applied and to allow for easy comparison with the planned application rates. Notes and calculations to document reasons for any deviations or adjustments to the planned rates are also good records to keep on file.
We try to write NMPs in a way that is as simple and practical as possible while still meeting all state and federal requirements. In the future, I believe it will become increasingly important to be able to document and prove implementation of, and compliance with your NMP. This does not necessarily mean staying within a preset application rate each year, though, this is still an important concept and goal. At times it may mean being flexible by updating the rates based on current information and clearly documenting what was done.
There are certainly times in which “non-compliance” simply cannot be avoided due to factors beyond anyone’s control. This is especially true for the runoff-based waste management systems found at most open lot feedyards and dairies in Kansas. Because the wastewater-generated amounts for runoff-based livestock waste management systems can vary widely from year to year and season to season, NMPs have historically been planned around an annual wastewater generation estimate that is based on average climate conditions. In some years, the actual wastewater-generated amount will be higher than the estimate used for planning, and in other years, lower. This is due to many possible factors such as: total precipitation amount, precipitation event timing/frequency, rainfall rate, evaporation rate, changes in storage capacity over time, changes in lagoon level management or process water use, etc. Facilities attempt to size their NMP land base for dewatering according to the planning estimate based on average climate conditions, while knowing that the actual generated and applied wastewater amounts may be more or less depending on the year.
We specialize in dealing with the nitty-gritty regulatory details, but it is good to occasionally step back and remember the big picture goals that these regulations were originally created to support. The keys of real importance for protecting our state’s water quality are using best management practices to minimize nutrient losses from the facility and fields, and recognizing when soil test levels show increasing trends that may need corrected to stay within agronomic and environmentally-acceptable levels.
Our primary goal, as always, is to help keep our clients in compliance and to take the burden and confusion of environmental requirements away so they can focus on running their businesses. Consider us an extension of your own team! We understand the regulations and wish them to be interpreted and enforced fairly and consistently to protect our natural resources, but we also have a common-sense attitude and understand the reality of what it takes to manage manure and wastewater at a feedyard and in the fields. We also have a team of consultants and engineers with a great deal of experience, not to mention our network of connections with KLA Topeka staff and KLA members, so if we personally can’t answer your question, odds are we know someone who can.