DEPARTMENT OF AGRICULTURE

Nutrient Management

Statutory Authority: 3 Delaware Code, Section 2221 (3 Del.C. §2221

3 DE Admin. Code 1201

PROPOSED

PUBLIC NOTICE

Nutrient Management Regulations

Pursuant to 29 Del.C. §10115, I hereby recommend the proposed modifications to the nutrient handling certification regulations and mandate regulations to be posted in the Register of Regulations during the month of September, 2006.

Synopsis:

Nutrient Management Certification Regulation Amendments (Exhibit A): Certification by the Delaware Nutrient Management Program, 2320 S. Dupont Hwy., Dover, DE 19901, is required (3 Del.C. §2201 - 2290) for all who apply fertilizer and/or animal manure greater than 10 acres or who manage animals greater than 8,000 pounds of live animal weight. The proposed changes to the certification regulations establish nutrient handling requirements for certain nutrient handlers. The proposed regulation addresses application timing and placement for commercial inorganic fertilizer and organic fertilizer

Mandate Amendment (Exhibit B): The proposed regulation requires nutrient handlers and animal operations to develop and implement nutrient management practices as required by the Nutrient Management Law (3 Del.C. §2201 et. al.) by January 1, 2007.

Comments on the proposed changes will be accepted from September 1, 2006 until September 30, 2006. Any comments should be provided to the Nutrient Management Program office located at 2320 S. Dupont Hwy., Dover, DE 19901, ATTN: William Rohrer. Hearings for the proposed regulations will be conducted at the Delaware Department of Agriculture on September 26, 2006 at 6:00 PM and at the Gumboro Fire Company hall on September 28, 2006 at 6:00 PM. A meeting to accept the proposed changes was held at the Nutrient Management Full Commission meeting on August 8, 2006 at 7:00 PM. The accepted changes are indicated below.

Amendments: Paragraphs 6.0 – 14.0, reference 1200 Nutrient Management, 1201 Nutrient Management Certification Regulations.; Paragraph 4.0, reference Nutrient Management, 1203 Mandatory Nutrient Management Plan Reporting Implementation Regulations.

1201 Nutrient Management Certification Regulations

PREAMBLE

These regulations have been developed pursuant to 3 Del.C. Ch. 22. That statute established the Delaware Nutrient Management Commission and authorized the Commission to develop, review, approve, and enforce nutrient management regulations, including regulations governing the certification of persons who conduct certain activities that involve the generation or application of nutrients to lands or water, or who are involved in providing advice or consultation regarding such application of nutrients. These regulations were developed by the Commission and the Delaware Department of Agriculture. They are adopted with the guidance, advice, and consent of the Commission.

1.0 Authority

1.1 These regulations are promulgated pursuant to the authority provided by 3 Del.C., Ch. 22, §2221.

2.0 Purpose

2.1 The purpose of these regulations is to establish certification requirements for certain generators or handlers of nutrients, or who engage in advising or consulting with others regarding the formulation, application, or scheduling of nutrients within the State of Delaware.

3.0 Definitions

3.1 For purposes of these regulations, the following words or terms shall have the meanings as indicated:

"Animal Feeding Operation" or "AFO" means any area or facility where animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12 month period.

"Animal Unit" shall be as defined by the United States Department of Agriculture Natural Resources Conservation Service, and is approximately 1,000 lbs. "average" live body weight.

"Applicant" means any person seeking a certificate from the Commission.

"Apply, Applying", or any derivation of the word "apply", as it relates to the application of nutrients, means the human controlled mechanical conveyance of nutrients to land for the purpose of applying organic and/or inorganic nutrients.

“Certification" means the recognition by the Commission that a person has met the qualification standards established by the Commission and has been issued a written certificate authorizing such person to perform certain functions specified in these regulations.

"Commercial Nutrient Handler" means a person who applies organic or inorganic nutrients to lands or waters in the State as a component of a commercial or agricultural business in exchange for a fee or service charge.

"Commercial Inorganic Fertilizer" means any synthetic chemical compound or formulations (other than liming materials) that is added to a soil to supply one or more plant nutrients essential to the growth of plants.

"Commercial Processor" means any individual, partnership, corporation, association or other business unit that controls, through contracts, vertical integration or other means, several stages of production and marketing of any agricultural commodity.

"Commission" or "DNMC" means the Delaware Nutrient Management Commission.

"Credit" represents a unit of measuring education for certification as defined by the Commission and is dependent upon such factors as curricula intensity and class time.

"Direct Supervision" refers to actions by a person who is certified with the State Nutrient Management Program and directs individuals within the same organization/company in applying nutrients. Direct supervisors hold responsibility for nutrient application actions for those under his/her supervision.

"Nutrient Consultant" means a person who is engaged in the activities of advising or consulting with another person who is required to have a certificate under these regulations, regarding the formulation, application, or scheduling of organic or inorganic nutrients within the State. Provided, however, any employee of any federal, State or local government agency or the University of Delaware, or other organization duly recognized by the Commission for such purpose, who provides advice or consultation in his/her capacity as such an employee, without compensation, shall not be deemed to be a nutrient consultant unless such advice and consultation constitutes a direct and substantial part of a nutrient management plan developed pursuant to these regulations.

"Nutrient Generator" means a person who owns or operates a facility within the State that produces organic or inorganic nutrients.

"Nutrient Management Plan" or "plan" means a plan by a certified nutrient consultant to manage the amount, placement, timing, and application of nutrients in order to reduce nutrient loss or runoff and to maintain the productivity of soil when growing agricultural commodities and turfgrass.

“Nutrients" means nitrogen, nitrate, phosphorus, organic matter, and any other elements necessary for or helpful to plant growth.

“Organic fertilizer” means any carbon based by-product from the processing of animals or vegetable substances that contain sufficient plant nutrients to be of value as fertilizers.

"Person" means any individual, partnership, association, fiduciary, or corporation or any organized group of persons, whether incorporated or not.

"Private Nutrient Handler" means a person in the State who applies organic or inorganic nutrients to lands or waters he/she owns, leases, or otherwise controls.

"Program Administrator" or "Nutrient Management Program Administrator" means the exempt employee of the Delaware Department of Agriculture who is responsible for the operation of the State Nutrient Management Program.

"Secretary" means the Secretary of the Delaware Department of Agriculture or his/her designee.

“State Nutrient Management Program" or "SNMP" means all the nutrient management program elements developed by the Commission, whether or not reduced to rules or regulations.

4.0 Certification Categories and Activities Requiring Certification

4.1 No later than January 1, 2004, any person who engages in any of the following activities must have the applicable certificate or certificates required by and issued pursuant to these regulations, as follows:

4.1.1 Nutrient generator certification - A nutrient generator who owns or operates any animal feeding operation in excess of eight animal units must have a nutrient generator certificate.

4.1.2 Private nutrient handler certification - A private nutrient handler who, on an annual basis, applies nutrients to 10 acres or greater of land or waters owned, leased, or otherwise controlled by such handler must have a private nutrient handler certificate.

4.1.3 Commercial nutrient handler certification - A commercial nutrient handler who, on an annual basis, applies nutrients to 10 acres or greater of land or waters of the state must have a commercial nutrient handler certificate.

4.1.4 Nutrient consultant certification - A nutrient consultant who is engaged in the provision of nutrient management advice or the formulation of a nutrient management plan or in nutrient management planning as it relates to the application or disposal of nutrients at or from a specific site in the State of Delaware must have a nutrient consultant certificate.

4.2 These certification requirements shall not apply to individuals who perform services under the direct supervision of a certified person, provided that the certified person assures that such individuals act in accordance with the standards or practices which the certified person would follow if such person performed the service. Nor shall the certification requirements of this section apply to persons who utilize a person certified under these regulations to conduct the activities identified in this section, provided that such persons do not engage in any of the activities themselves and the certified person is certified at the time the activities are undertaken.

4.3 Conditional certifications may be issued for any reason specified by the Commission and shall be issued for periods not to exceed one year.

5.0 Certification Requirements

5.1 Any person who seeks a certification shall file with the Commission an application on a form provided by the Commission, along with the application fee. The minimum requirements for the certifications follow.

5.2 Nutrient generator certificates - To obtain a nutrient generator certificate, the applicant must take and successfully complete at least 6 credits of educational course work as approved by the Commission or Program Administrator. Proof of such completion of course work shall be submitted with the application.

5.3 Private nutrient handler - To obtain a private nutrient handler certificate, the applicant must take and successfully complete at least 9 credits of educational course work as approved by the Commission or Program Administrator. Proof of such completion of course work shall be submitted with the application.

5.4 Commercial nutrient handler - To obtain a commercial nutrient handler certificate the following criteria must be satisfied:

5.4.1 The applicant must take and successfully complete at least 12 credits of educational course work as approved by the Commission or Program Administrator. Proof of such completion of course work shall be submitted with the application.

5.4.2 The applicant must pass a written test approved by the Commission.

5.5 Nutrient consultant - To obtain a nutrient consultant certificate the following criteria must be satisfied:

5.5.1 The applicant must take and successfully complete at least 12 credits of educational course work as approved by the Commission or Program Administrator. Proof of such completion of course work shall be submitted with the application.

5.5.2 The applicant must pass a written test approved by the Commission.

6.0 Nutrient Handling Requirements

6.1 The application of Nitrogen and Phosphorus based commercial inorganic fertilizers shall be prohibited by anyone holding certification or required to be certified pursuant to 3 Del.C. 2242 and section 4.0 herein , when one of the following conditions exist:

6.1.1 The surface area of application is impervious such as sidewalks, roads and other paved areas and the misdirected commercial inorganic fertilizer is not removed on the same day of application;

6.1.2 The surface area is covered by snow or frozen for a 24 hour period or greater; or

6.1.3 The date of application is between December 1 and February 15.

6.2 An exception may be granted by a Certified Nutrient Consultant provided the nitrogen application rate does not exceed 1lb. /1,000 ft2 or 43 lbs/acre and provided the following conditions exist:

6.2.1 The crop receiving commercial fertilizer is actively growing; or

6.2.1.2 Conditions deemed scientifically agronomical by the Nutrient Consultant exist justifying the exemption; and

6.2.2 The State Nutrient Management Program is informed of the exemption.

6.3 The application of organic fertilizers to any surface area covered by snow or frozen for a 24 hour period or greater is prohibited by anyone holding certification or required to be certified pursuant to 3 Del.C. 2242 and section 4.0 herein.

67.0 Reciprocity

67.1 Notwithstanding the requirements of Section 5.0, supra, any person may obtain a certificate under these regulations if all the following requirements are satisfied.

67.2 The applicant must submit an application for the applicable certificate on a form provided by the Commission, along with the application fee.

67.3 The applicant must have a valid certificate or equivalent authorization, such as a license for the certificated activity, from another state or organization that requires qualifications at least as rigorous as those required under these regulations and approved by the Commission.

67.4 The applicant must pass a test approved by the Commission related to specific Delaware Nutrient Management requirements. The Commission may in its sole discretion waive this test requirement.

78.0 Continuing Education

78.1 After a certificate is issued, the certificate holder must take and successfully complete continuing education courses approved by the Commission or Program Administrator in accordance with the following:

78.1.1 Nutrient generator - 6 credits of continuing education in each three-year period following the issuance of the certification.

78.1.2 Private nutrient handlers - 6 credits of continuing education in each three-year period following the issuance of the certification.

78.1.3 Commercial nutrient handlers - 6 credits of continuing education in each three-year period following the issuance of the certification.

78.1.4 Nutrient consultants - 5 credits of continuing education each year following the issuance of the certification.

78.2 Failure to satisfy the continuing education requirements may result in the revocation of a certificate or non-renewal of the certificate.

78.3 Any dispute regarding continuing education credits may be directed to the Commission which will determine whether a hearing is necessary to resolve the dispute.

9 DE Reg. 966 (12/01/05)

89.0 Duration of Certificates and Certification Fees

89.1 Certificates normally will be issued and renewed for periods of three years for nutrient generators, private nutrient handlers, and commercial nutrient handlers. Certified nutrient consultants will be issued and renewed certifications annually.

89.2 Certificate fees are due with the application. The fee for a one-year certificate issued to nutrient consultants shall be $100.00. The certificate fee for commercial nutrient handlers for a three-year certificate shall be $150.00.

89.3 No fee will be charged for certification of a nutrient generator or a private nutrient handler.

910.0 Suspensions, Modifications, and Revocations

910.1 The Commission may, after notice and opportunity for hearing, suspend, modify, or revoke any certificate where the Commission has reasonable grounds to believe that the certificate holder is responsible for violations of the nutrient management statute (Title 3, Chapter 22, of the Delaware Code) or Commission regulations. The Commission shall furnish the person accused of a violation with notice of the time and place of the hearing, which notice shall be served personally or by registered mail directly to such person's place of business or last known address with postage fully paid no sooner than 10 days but within 21 days of the time fixed for the hearing.

1011.0 Certification Renewals

1011.1 At least 60 days before the expiration of a certificate, the certificate holder shall file an application with the Commission for renewal of the certificate, along with the certification fee.

1011.2 Nutrient consultants must file with the application and fee evidence that the consultant prepared at least one nutrient management plan during the preceding three-year period. If no such plan was prepared, the certificate shall not be renewed.

1011.3 The certificate holders must also supply with the application and renewal fee evidence that they have complied with the continuing education and record keeping and reporting requirements contained in these regulations.

1011.4 Absent good cause for failure to timely file an application for renewal in compliance with these requirements, the certificate holder must reapply for the certificate in the same manner required for the issuance of the original certificate.

1011.5 Decisions to refuse renewal of a certificate shall be final and conclusive unless appealed to the Commission pursuant to Section 2262, Chapter 22, of the Delaware Code.

1112.0 Appeals to the Secretary

All decisions of the Commission under this regulation shall be final and conclusive unless appealed to the Secretary pursuant to Section 2263, Chapter 22, of the Delaware Code. Provided, however, that the denial of a certificate pursuant to Sections 2243 or 2245, Chapter 22, of the Delaware Code shall first be appealed to the Commission which shall hold a hearing.

1213.0 Record Keeping.

1213.1 Nutrient generators shall record and keep the following available for inspection by the Secretary or the Commission:

1213.1.1 A contemporaneously recorded log that contains the dates, approximate quantities, locations, and disposition (stored, shipped, etc.) of nutrients that are applied to land or transported from land owned, leased or otherwise controlled by the Nutrient Generator.

1213.1.2 A copy of any applicable nutrient management plan.

1213.2 Private nutrient handlers shall record and keep the following available for inspection by the Secretary or the Commission:

1213.2.1 A contemporaneously recorded log showing the dates, locations, approximate quantities, acreage and methods of nutrient application.

1213.2.2 A copy of any applicable nutrient management plan.

1213.3 Commercial nutrient handlers shall prepare and keep available for inspection by the Secretary or the Commission, a contemporaneously recorded log showing the dates, locations, approximate quantities, acreage, and methods of nutrient application.

1213.4 Nutrient consultants shall prepare and/or keep available for inspection by the Secretary or the Commission, copies of any written materials prepared by the nutrient consultants or at their direction that establish how nutrients are to be managed at specific sites within Delaware, such as nutrient management plans.

1213.5 The information required in this section shall be kept and maintained for a period of 6 years.

1314.0 Effective Date.

These regulations shall become effective on January 10, 2001

4 DE Reg. 1117 (1/1/01)

1203 Mandatory Nutrient Management Plan Reporting Implementation Regulations

PREAMBLE

These regulations have been developed pursuant to 3 Del.C. Ch. 22 [72 Del. Laws, c. 60]. That statute established the Delaware Nutrient Management Commission and authorized the Commission to develop, review, approve, and enforce nutrient management regulations, including regulations governing a nutrient management planning program and the development of nutrient management plans. These regulations were developed by the Commission and the Delaware Department of Agriculture. They are adopted with the guidance, advice, and consent of the Commission.

1.0 Authority

1.1 These regulations are promulgated pursuant to the authority provided by 3 Del.C., Ch. 22, §§2220 and 2221.

2.0 Purpose

2.1 The purpose of these regulations is to establish requirements for implementation of mandatory nutrient management plan reporting pursuant to Section 5, 72 Del. Laws, c. 60.

3.0 Registration Requirement For Persons Selected For Mandatory Nutrient Management Plan Reporting Pursuant To Section 5, 72 Del. Laws, c. 60.

3.1 Persons notified that they have been selected by the Commission to be phased into the nutrient management planning program and mandatory nutrient management plan reporting (pursuant to Section 5, 72 Del. Laws, c. 60) shall register with the Commission within thirty (30) days of receiving such notice. Registration shall be made in writing, by completing and submitting, to the Nutrient Management Program Administrator, a registration form approved by the Commission.

3.2 Failure to register within the required period shall subject the person(s) failing to respond to the penalty provisions of 3 Del.C., Ch. 22.

3.3 If the Commission sends such notification by registered mail, the return receipt or other official proof of delivery shall constitute presumptive evidence that the notice mailed was received by the person(s) or the latter’s agent; and the notation of refusal shall constitute presumptive evidence that the refusal was by the person(s) or the latter’s agent.

4.0 Requirement for Nutrient Management Plan and/or Animal Waste Management Plan in accordance with standards outlined in 3 Del.C. § 2290 et. al. by January 1, 2007.

4.1 All animal feeding operations with greater than 8 animal units or any person who owns, leases or otherwise controls property in excess of 10 acres upon which nutrients are applied shall develop and implement a nutrient management plan and/or an animal waste management plan in accordance with the standards outlined in 3 Del.C. §2200 et al. by January 1, 2007.

4.2 Any animal feeding operation or person requiring a nutrient management plan and/or an animal waste management plan after January 1, 2007, shall have 180 days from the date the property owner or manager assumes control of the animal feeding operation with greater than 8 animal units or owns, leases or otherwise controls property in excess of 10 acres upon which nutrients are applied to develop and implement a nutrient management plan and/or an animal waste management plan.

4.3 Non-compliance with the nutrient management statute and regulations may result in an enforcement action and the imposition of fines and penalties as set forth in the Nutrient Management Law (3 Del.C. §2280, et. al).

7 DE Reg. 160 (8/1/03)

10 DE Reg. 411 (09/01/06) (Prop.)