According to a recent article in the Bay Journal, the Maryland Department of the Environment (MDE) has undertaken an enforcement action against a Wicomico County farm for not having a Nutrient Management Plan (NMP) and the State is seeking substantial civil penalties from each of the farm’s co-owners for the violations. Hopefully the farmers can reach a resolution with the State of Maryland but given this recent development, I thought it would be a good time to review exactly how and when a farmer can be fined for not having or adhering to a NMP.
Maryland law requires all farmers grossing $2,500 a year of more or livestock producers with 8,000 pounds or more of live animal weight to follow NMPs when fertilizing crops and managing animal manure. NMPs specify how much fertilizer, manure or other nutrient sources may be safely applied to crops to achieve yields and prevent excess nutrients from impacting waterways. Because of their complexity, these plans must be prepared by a certified University of Maryland specialist, certified private consultant, or farmer trained and certified to prepare his or her own plan.
Farmers are required to submit copies of their initial NMPs to the appropriate agency (MDE for Concentrated Animal Feeding Operations (CAFOs) and MDA for non-CAFOs), update plans before they expire, take new soil samples a minimum of once every three years, obtain manure analyses (if using manure) at least every other year, and submit Annual Implementation Reports documenting how they implemented their plans during the previous year. These reports are due to by March 1 each year.
It is important to note that the NMP update is separate from the conservation portion of the Comprehensive Nutrient Management Plans (CNMP). CNMPs are conservation plans unique to large scale livestock and poultry operations and may not need updating unless there is a change in the operation. The nutrient management portion of the CNMP may need updating each year if cropland and manure is involved and at least every three years unless there is a 10% change in the number of animal units managed under the operation. The MDE handles CAFOs with CNMPs. These plans document landowner or operator practices and strategies to address the natural resource concerns related to soil erosion, water quality, utilization of manure, and disposal of organic by-products.
So when and how can a farmer be fined for not having or adhering to a NMP?
Any farmer who fails to have an NMP and is not a CAFO operator will receive a notice of violation from the MDA. The notice will give a reasonable period of time to get the necessary NMP and failure to do so results in an administrative penalty not to exceed $250. Any person who violates any provision of an NMP will first receive a warning followed by an administrative penalty. The penalty will be up to $100 for each violation, not to exceed $2,000 per farmer or operator per year. The imposition of a fine comes with the opportunity for an administrative hearing to contest the penalty.
What is considered a violation for the purpose of assessing penalties? Each day a violation occurs is considered a separate violation subject to a separate fine. This is referred to as a “continuing violation”. According to Maryland law, the MDA will not assess daily penalties as long as the farmer takes reasonable steps to correct the violation.
What does MDA consider when deciding how to assess a penalties? Under Maryland law, penalties are assessed with consideration given to:
1. The willfulness of the violation, the extent to which the existence of the violation was known to but uncorrected by the violator, and the extent to which the violator exercised reasonable care;
2. Any actual harm to the environment or to human health;
3. The available technology and economic reasonableness of controlling, reducing, or eliminating the violation; and
4. The extent to which the current violation is part of a recurrent pattern of the same or similar type of violation committed by the violator.
What does MDA do with funds collected from penalties? Penalty funds are sent to the Maryland Agricultural Water Quality Cost-Share Program.
Are there any other potential consequences?
The farmer may be required to repay any Cost-Share funds that he or she has received and/or may be ineligible to use Cost-Share funds in the future.
Anyone interested in refreshing their knowledge about NMPs or anyone who is planning to take the Nutrient Management Certification Exam (August 5th) should plan to attend the Maryland Nutrient Management Program’s Fundamentals of Nutrient Management pre-certification training course on June 2 & 3, 2016. Any other questions or concerns about NMPs can be answered by the University of Maryland Extension’s Nutrient Management Advisors; here is a listing to help you find one in your area.