4VAC5-15 Nutrient Management Training and Certification Regulations

REGULATIONS

Vol. 30 Iss. 11 - January 27, 2014

TITLE 4. CONSERVATION AND NATURAL RESOURCES

VIRGINIA SOIL AND WATER CONSERVATION BOARD

Chapter 15

Fast-Track Regulation

EDITOR'S NOTE: Effective July 1, 2013, the authority for administration of the nutrient management certification program and responsibility for adopting regulations on nitrogen application rates was transferred from the Department of Conservation and Recreation to the Virginia Soil and Water Conservation Board pursuant to Chapters 593 and 658 of the 2013 Acts of Assembly.

Title of Regulation: 4VAC5-15. Nutrient Management Training and Certification Regulations (amending 4VAC5-15-10, 4VAC5-15-150).

Statutory Authority: § 10.1-104.2:1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 26, 2014.

Effective Date: March 13, 2014.

Agency Contact: David C. Dowling, Policy and Planning Director, Department of Conservation and Recreation, 600 East Main Street, 24th Floor, Richmond, VA 23219, telephone [phone], FAX [phone], or email [e-mail].

Basis: Section 10.1-104.2:1 of the Code of Virginia requires the Virginia Soil and Water Conservation Board to adopt regulations that amend the application rates in the Virginia Nutrient Management Standards and Criteria (standards and criteria) by incorporating into such regulations or the documents incorporated by reference the recommended application rates for nitrogen in lawn fertilizer and lawn maintenance fertilizer and the recommended application rates for "slow or controlled release fertilizer" and "enhanced efficiency lawn fertilizer," as such terms are defined and adopted or proposed for adoption by the Association of American Plant Food Control Officials (AAPFCO), as described in the Virginia Department of Agriculture and Consumer Services' December 2011 "Report on the Use of Slowly Available Nitrogen in Lawn Fertilizer and Lawn Maintenance Fertilizer."

Purpose: Enactment clause 3 of Chapter 341 of the 2011 Acts of Assembly stated "[t]hat the Department of Agriculture and Consumer Services shall provide, no later than December 15, 2011, a report to the House Committee on Agriculture, Chesapeake and Natural Resources and the Senate Committee on Agriculture, Conservation and Natural Resources concerning the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer. The report shall (i) conduct an assessment of the most effective means to encourage the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer, (ii) determine the most appropriate percentages of slowly available nitrogen to be included in lawn fertilizer and lawn maintenance fertilizer, (iii) recommend the most appropriate effective date for any change, (iv) calculate the costs to the manufacturer and consumer, and (v) provide a review of any other issues related to the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer. The Department shall consult with the Department of Conservation and Recreation and the Chesapeake Bay Commission and, at the Department's discretion, may convene a technical advisory committee of stakeholders concerning the development and content of the report."

In response to this legislative mandate, the Department of Agriculture and Consumer Services (VDACS) convened a technical advisory committee (TAC), which included, among others, the Department of Conservation and Recreation (DCR) and the Chesapeake Bay Commission. The TAC met three times during the summer of 2011 and VDACS issued a report to the General Assembly in December of 2011. The report on the use of slowly available nitrogen in lawn fertilizer and lawn maintenance fertilizer contained the following:

The recommended application rates for nitrogen in lawn fertilizer and lawn maintenance fertilizer are as follows:

No more than 0.7 pounds per 1,000 square feet of readily available nitrogen, as defined by AAPFCO, during any given 30-day period.

No more than 0.9 pounds per 1,000 square feet of total nitrogen on cool season grasses during any given 30-day period.

No more than 1.0 pound per 1,000 square feet of total nitrogen on warm season grasses during any given 30-day period.

The recommended application rates for "Slow or Controlled Release Fertilizer," and for "Enhanced Efficiency" lawn maintenance fertilizer, as defined and adopted or proposed for adoption by AAPFCO, are as follows:

No more than 2.5 pounds of nitrogen per 1,000 square feet per application, with a release rate of no more than 0.7 pounds of nitrogen per 1,000 square feet per 30 days.

The total annual application rate shall not exceed 80% of the nitrogen rates recommended for cool or warm season grasses in the Virginia Nutrient Management Standards and Criteria.

Finally, the TAC recommends that the target effective date for the implementation of the recommended application rates and amendments to the Code of Virginia be July 1, 2014.

Legislation passed by the 2012 General Assembly and signed by the Governor amended § 10.1-104.2:1 of the Code of Virginia to require that DCR incorporate the report's recommended applications rates in the standards and criteria documents incorporated by reference in 4VAC5-15 and utilize a fast-track regulatory process to adopt the change by July 1, 2014.

Modifications being made to the Nutrient Management Training and Certification Regulations and the Nutrient Management Standards and Criteria will protect the health, welfare, and safety of the citizens of the Commonwealth by improving water quality through the amendment of application rates for nitrogen in lawn fertilizers.

Rationale for Using Fast-Track Process: The proposed changes to the standards and criteria amend only one of the nine sections of the Nutrient Management Standards and Criteria. The changes made to the standards and criteria are expected to be noncontroversial, and the changes incorporate the recommendations made by the 2011 TAC convened by VDACS and mandated for incorporation by state law through a fast-track regulatory action in accordance with § 10.1-104.2:1 of the Code of Virginia.

Membership on the 2011 TAC, established by VDACS, included representatives from: (i) DCR; (ii) the Chesapeake Bay Commission; (iii) the Chesapeake Bay Foundation; (iv) Agrium Advanced Technologies; (v) Responsible Industry for a Sound Environment (RISE); (vi) Scotts Miracle-Gro; (vii) Southern States; (viii) University of Florida; (ix) Virginia Agribusiness Council; (x) Virginia Cooperative Extension; (xi) Virginia Crop Production Association; (xii) Virginia Farm Bureau; (xiii) Virginia Green Lawn Care; (xiv) Virginia Nursery and Landscape Association; (xv) Virginia Association of Soil and Water Conservation Districts; (xvi) Virginia Tech Crop and Soil Environmental Sciences; and (xvii) the Virginia Turfgrass Council. The TAC concluded its meetings in September 2011, and after that time, the Chesapeake Bay Commission, in conjunction with industry representatives, initiated further discussions that led to the recommendations contained in the report published in December 2011. Consequently, it is the agency's understanding that the recommendations have been shared with members of the TAC and with members of the General Assembly and that the changes proposed by DCR in this regulatory action address those recommendations.

This fast-track regulatory action amends the date references in 4VAC5-15-10 and 4VAC5-10-150 for the Virginia Nutrient Management Standards and Criteria document from October 2005 to July 2014, and amends the standards and criteria document, which is a document incorporated by reference in the regulation. The proposed amendments to the standards and criteria document only affect Section VI, "Turfgrass Nutrient Recommendations for Home Lawns, Office Parks, Public Lands and Other Similar Residential/Commercial Grounds." The amendments to this section incorporate the recommended fertilizer application rates contained in the December 2011 report and pertinent definitions from the Association of American Plant Food Control Officials.

Substance: The amendments to 4VAC5-15-15 (Definitions) and 4VAC5-15-150 (Required nutrient management plan procedures) change the reference to the current standards and criteria document that is incorporated by reference from October 2005 to July 2014. Section VI (Turfgrass Nutrient Recommendations for Home Lawns, Office Parks, Public Lands and Other Similar Residential/Commercial Grounds) is one of nine sections within the standards and criteria. Only changes to Section VI are being made, and no other sections within that document are being amended by this regulatory action. The amendments to Section VI address the recommendations contained in the 2011 report from the Virginia Department of Agriculture and Consumer Services in response to the legislative mandate contained in § 10.1-104.2:1 of the Code of Virginia.

The proposed amendments conform the standards and criteria to the requirements of § 10.1-104.2:1 of the Code of Virginia and the recommendations contained in the VDACS 2011 report, and they also ensure consistency with the labeling standards for slowly available nitrogen that are contained in § 3.2-3607 G of the Code of Virginia. The department recommends an effective date for the amended standards and criteria of July 1, 2014. This effective date is also consistent with § 3.2-3607 G of the Code of Virginia.

Issues: The amendments comport with the Code of Virginia to address a legislative mandate to incorporate into regulation the following: (i) recommended application rates for nitrogen in lawn fertilizer and lawn maintenance fertilizer and (ii) recommended application rates for "slow or controlled release fertilizer" and "enhanced efficiency lawn fertilizer." There are no known disadvantages to the public or to the Commonwealth.

The amendments have been advanced in order to improve water quality in state waters across the Commonwealth through nutrient reductions. When the enacting legislation was introduced in 2012, the agency estimated that the change in recommended application rates could amount to as much as 164,000 pounds of nitrogen reductions if applied to all pervious developed areas (approximately1.2 million acres). Controls on fertilizer use and the resulting nitrogen reductions advanced through this regulatory action may result in fewer post-construction controls required of the homebuilding industry and will advance the economic gains associated with recreational and commercial use of Virginia's aquatic resources.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 796 of the 2012 Acts of Assembly, the Department of Conservation and Recreation (DCR) proposes to incorporate in its regulations new, and lower than current, recommended fertilizer application rates for nitrogen for new and existing lawns.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Pursuant to Chapter 796 of the 2012 Acts of Assembly, the proposed changes will incorporate in the regulations new, and lower than current, recommended fertilizer application rates for new and existing lawns. Chapter 341 of the 2011 Virginia Acts of Assembly directed the Virginia Department of Agriculture and Consumer Services (VDACS), in consultation with DCR and the Chesapeake Bay Commission, to prepare a report concerning, among other things, the recommended fertilizer application rates for lawns. In response, VDACS assembled a technical advisory committee that recommended the application rates below.

For lawn fertilizer and lawn maintenance fertilizer:

No more than 0.7 pounds per 1,000 square feet of readily available nitrogen, as defined by AAPFCO, during any given 30 day period.

No more than 0.9 pounds per 1,000 square feet of total nitrogen on cool season grasses during any given 30 day period.

No more than 1.0 pound per 1,000 square feet of total nitrogen on warm season grasses during any given 30 day period.

For "Slow or Controlled Release Fertilizer," and for "Enhanced Efficiency" lawn maintenance fertilizer:

No more than 2.5 pounds of nitrogen per 1,000 square feet per application, with a release rate of no more than 0.7 pounds of nitrogen per 1,000 square feet per 30 days.

The total annual application rate shall not exceed 80% of the nitrogen rates recommended for cool or warm season grasses in the Virginia Nutrient Management Standards and Criteria.

Following the technical advisory committee's recommendations, Chapter 796 of the 2012 Acts of Assembly directed DCR to adopt these recommended fertilizer application rates in its regulations. In response, DCR updated its 2014 version of the document titled "Virginia Nutrient Management Standards and Criteria" to reflect these recommendations, and now proposes to make the same update to fertilizer application rates in its regulations pursuant to the new 2014 version.

The proposed recommended application rates are approximately 30% lower than the current rates. DCR estimated in 2012 that the change in the recommended application rates could amount to as much as 164,000 pounds of nitrogen reductions over 1.2 million acres of the area they are applied to. While this estimate continues to be the most current data available, there appears to be significant uncertainty associated with it. These rates are recommendations; they are not and will not be enforced. Their implementation will be accomplished primarily through education and training efforts directed to homeowners, golf courses, lawn maintenance businesses, etc. An accurate estimate would require compliance with the current rates, as well as the proposed rates, both of which are not known. Nonetheless, a general reduction in the quantity of fertilizers applied to lawns would have certain effects on property owners with lawns, manufacturers, DCR, and the environment.

Property owners with lawns could be private individuals, small or large for-profit corporations, non-profit organizations, or local, state or even federal government entities. However, DCR does not have an accurate inventory of entities that may be affected by these proposed application rates. If property owners reduce their fertilizer application rates, they would purchase less and realize some monetary savings. At the present time, home lawn fertilizer costs approximately $1 per pound. At this price, a 164,000 pounds reduction in fertilizer consumption would produce $164,000 in savings to property owners. In addition, nitrogen reductions in the Commonwealth's water bodies may result in fewer post-construction controls to reduce runoffs. These controls are known as best management practices and may include but are not limited to rainwater harvesting, vegetated roofs, bioretention, filtering practices, extended detention ponds, etc.

A non-negligible decrease in the quantity of fertilizers applied would also reduce the revenues of manufacturers. However, manufacturers are unlikely to experience any other significant compliance costs because the statute explicitly prohibits a ban on the sale of fertilizers whose labels are inconsistent with the new proposed rates at the time the proposed regulations go into effect. The proposed rates and their effective dates are already publicly available and manufacturers are likely to be in compliance by the time they become effective in July 2014.

The effects of the new application rates on DCR are not expected to be significant. The main effect on DCR is likely to be in terms of the need to provide training to educate affected entities about the changes in the recommended rates. However, the proposed regulations do not have any provisions requiring additional training. DCR estimates that changing the curriculum of the existing training would be sufficient enough to address the education aspect of the proposed rate changes. Thus, the administrative costs for DCR are expected to be minimal.

A significant reduction in the quantity of fertilizers applied to lawns would have certain positive environmental impacts. When properly applied, nutrients in fertilizers help plants grow and look beautiful. Thus, they are extensively used by property owners to maintain their landscape. However, lawn fertilizers sometimes run off into surface streams and other water bodies especially if they land on sidewalks, driveways, or gutters. Once they reach water bodies, they fuel growth of algae which, upon decomposition, reduces oxygen levels in the water and harms fish and other organisms. Nutrients in fertilizers may also leach into groundwater and contaminate it. The amount of runoff and leaching are affected by many factors including the slope of the area, the characteristics of the soil, vegetation, and the amount and timing of rainfall or watering. Finally, excess fertilizer application can injure the very landscape plants they are intended to help. In short, while proper application of fertilizers helps maintain landscape beauty and quality, misapplication can pollute lakes, rivers, bays, and even groundwater.

As the quality of water improves, the beneficial uses of water also improve. Thus, improved freshwater, marine, and estuarine quality certainly has an economic value. The value may stem from the improved commercial and recreational use of water resources such as fishing and duck hunting; improved primary and secondary contact recreational uses such as swimming and boating; improved tourism activity such as an increase in the number of visitors from other states; improved aquatic and wild life support such as providing a suitable habitat for certain species; improved water quality for potable and non-potable uses such as drinking and agricultural irrigation; a reduced need for cleaning efforts such as reductions in TMDL implementation costs for the Chesapeake Bay; etc.

Businesses and Entities Affected. These regulations apply to the property owners with lawns which could be private individuals, small or large for-profit corporations, non-profit organizations, or local, state or even federal government entities. Improved water quality could benefit all members of the public.

Localities Particularly Affected. While recommended application rates are uniform across the Commonwealth, reduced fertilizer runoff would benefit downstream localities more than it would upstream localities.

Projected Impact on Employment. The recommended reduction in the fertilizer application rates may reduce demand for labor by manufacturers as less of it may be produced in the Commonwealth. On the other hand, improvements in water quality would likely add to the demand for labor due to increased uses stimulating economic activity.

Effects on the Use and Value of Private Property. Applying the proper quantity of fertilizer is expected to benefit lawns as well as the quality of water bodies. A positive effect on the use and value of private properties in proximity of the improved lawns and improved water bodies may be expected.

Small Businesses: Costs and Other Effects. Most of the manufacturers of lawn fertilizers are believed to be large businesses. Thus, no significant cost on small businesses is expected. However, increased uses of water resources may benefit small businesses in proximity to these resources.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The new recommended lawn fertilizer rates are not expected to have an adverse impact on small businesses.

Real Estate Development Costs. Nitrogen reductions in the Commonwealth's water bodies may lead to fewer post-construction controls known as best management practices and may reduce real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency Response to Economic Impact Analysis: The agency concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The amendment incorporates by reference the July 2014 revision of the Department of Conservation and Recreation's Virginia Nutrient Management Standards and Criteria (standards). The 2014 update to the standards incorporate recommended fertilizer application rates for nitrogen for new and existing lawns.

4VAC5-15-10. Definitions.

The words and terms used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

"Application rate" or "nutrient rate" means the quantity of major nutrients, nitrogen as N, phosphorus as P₂O₅, and potassium as K₂O on a per acre basis to supply crop or plant nutrient needs, and to achieve realistic expected crop yields.

"Banding" or "sideband" means the placement of fertilizer approximately two inches to the side and two inches below the seed.

"Best management practice" means a conservation or pollution control practice that manages soil, nutrient losses, or other potential pollutant sources to minimize pollution of water resources, such as split applications of nitrogen, or use of cereal grain cover crops to trap available nitrogen and reduce soil erosion.

"Biosolids" means a sewage sludge that has received an established treatment for required pathogen control and is treated or managed to reduce vector attraction to a satisfactory level and contains acceptable levels of pollutants, such that it is acceptable for use for land application, marketing, or distribution in accordance with 12VAC5-585, Biosolids Use Regulations of the Board of Health.

"Broadcast" means the uniform application of a material over a field.

"Calibration" means the systematic determination of the operational parameters, such as speed and quantity delivered, of application equipment.

"Cereal crop" or "small grain" means barley, rye, triticale, or wheat.

"Certified nutrient management planner" or "nutrient management planner" or "planner" means a person who holds a current Virginia nutrient management certificate of competence.

"Cool season grass" means grass species of temperate zone origin which exhibit the greatest rates of dry matter production in the day/night temperature range of 60°/50°F to 80°/70°F. Examples of cool season grasses include fescue, bluegrass, and ryegrass.

"Commonwealth" means the Commonwealth of Virginia.

"Composted organic nutrient source" means the relatively stable, humus-like product resulting from the controlled aerobic, thermophilic biological decomposition of organic material that bears little physical resemblance to the raw materials from which it originated.

"Cover crop" means a crop including, but not limited to, cereal grains, which is planted following the harvest of the preceding crop for the purpose of:

1. Seasonal protection of soil, or

2. Assimilation of residual soil nitrogen left from a previous crop or from continued mineralization of nitrogen.

"Crop" means cultivated plants or agricultural produce such as grain, silage, forages, oilseeds, vegetables, fruit, nursery stock, or turfgrass.

"Cropland" means land used for the production of grain, oilseeds, silage, industrial crops, and any other category of crop not defined as specialty crop, hay, or pasture.

"Crop nutrient needs" means the primary nutrient requirements of a crop determined as pounds per acre or pounds per 1,000 square feet of nitrogen as N, phosphorus as P₂O₅, and potassium as K₂O required to support crop growth for production of an expected crop yield based upon soil analysis results as specified in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014, or Virginia Commercial Vegetable Production Recommendations for 2005.

"Crop nutrient removal" means the amount of nutrients per acre expected to be taken up by a plant and removed from the site in the harvested portion at the expected yield level, generally expressed as tons per acre or bushels per acre, at rates specified in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014.

"Crop rotation" means one complete sequence of one or more crops grown in succession that may assist in minimizing disease, insects and weeds. For permanent hay, pasture, or a single crop planted continuously, the crop rotation is defined as the life of the nutrient management plan.

"Department" means the Department of Conservation and Recreation.

"Double crop" means the production and harvesting of two crops in succession within a consecutive 12-month growing season.

"Dry manure" or "semisolid manure" means manure containing less than 85.5% moisture.

"Environmentally sensitive site" means any field which is particularly susceptible to nutrient loss to groundwater or surface water since it contains or drains to areas which contain sinkholes, or where at least 33% of the area in a specific field contains one or any combination of the following features:

1. Soils with high potential for leaching based on soil texture or excessive drainage;

2. Shallow soils less than 41 inches deep likely to be located over fractured or limestone bedrock;

3. Subsurface tile drains;

4. Soils with high potential for subsurface lateral flow based on soil texture and poor drainage;

5. Floodplains as identified by soils prone to frequent flooding in county soil surveys; or

6. Lands with slopes greater than 15%.

"Expected crop yield" means a realistic crop yield for a given farm field determined by using yield records or soil productivity information.

"Fertilizer" means any organic or inorganic material of natural or synthetic origin that is added to a soil to supply certain nutrients essential to plant growth.

"Field" means a unit of contiguous nonwooded land generally used for crop production that is separated by permanent boundaries, such as fences, permanent waterways, woodlands, croplines not subject to change because of farming practices, and other similar features or as determined by the United States Department of Agriculture Farm Service Agency.

"Field identification number" means a number used by a farmer (or the United States Department of Agriculture Farm Service Agency) to distinguish or identify the location of a field on a farm.

"Grid soil sampling" means a process whereby farm fields or other areas are subdivided into smaller areas or squares for the purpose of obtaining more detailed soil analysis results.

"Groundwater" means any water beneath the land surface in a water saturated layer of soil or rock.

"Hay" means a grass, legume, or other plants, such as clover or alfalfa, which is cut and dried for feed, bedding, or mulch.

"Hydrologic soil group" means a classification of soils into one of four groups, A, B, C, or D, according to their hydrologic properties, ranging from low runoff potential (high infiltration potential) in group A to high runoff potential (low infiltration potential) in group D.

"Incorporation" means the process whereby materials are mixed into soils and not exposed on the soil surface, such as would be achieved by disking one time to a depth of six inches.

"Industrial waste" means liquid or other waste resulting from any process of industry, manufacture, trade or business, or from the development of any natural resources.

"Irrigation" means the application of water to land to assist in crop growth.

"Irrigation scheduling" means the time and amount of irrigation water to be applied to an area for optimum crop growth and to minimize leaching and runoff.

"Leaching" means the movement of soluble material, such as nitrate, in solution through the soil profile by means of percolation.

"Legume" means a plant capable of fixing nitrogen from the atmosphere such as peas, soybeans, peanuts, clovers, and alfalfas.

"Legume nitrogen credit" means the amount of nitrogen a legume is expected to supply to a succeeding crop.

"Liming" means the application of materials containing the carbonates, oxides, or hydroxides of calcium or magnesium in a condition and in a quantity suitable for neutralizing soil acidity.

"Liquid manure" means manure containing at least 85.5% moisture or which can be applied through subsurface injection or surface application with liquid application equipment.

"Livestock" means domesticated animals such as cattle, chickens, turkeys, hogs, and horses raised for home use or for profit.

"Manure" or "animal waste" means animal fecal and urinary excretions and waste by products which may include spilled feed, bedding litter, soil, lactase, process wastewater, and runoff water from animal confinement areas.

"Mehlich I" means the North Carolina Double-Acid soil analysis procedure to determine extractable levels of certain nutrients in soils as described in Methods of Soil Analysis, Part 3, Chemical Methods, 1996.

"Mehlich III" or "Mehlich 3" means a modified version of the Mehlich I method used to determine extractable levels of certain nutrients in soils as described in Methods of Soil Analysis, Part 3, Chemical Methods, 1996 and in Reference Soil and Media Diagnostic Procedures for the Southern Region of the United States, Southern Cooperative Series Bulletin No. 374.

"Micronutrient" means a nutrient necessary only in extremely small amounts for plant growth.

"Mineralization" means the process when plant unavailable organic forms of nutrients are converted to a plant available inorganic state as a result of soil microbial decomposition.

"No-till" means the soil is left undisturbed from the time of harvest or the killing of the preceding crop or cover crop until and including the time of planting of the current crop except for strips up to 1/3 of the row width that are disturbed by coulters or disk openers during the planting operation.

"NRCS" means the United States Department of Agriculture, Natural Resource Conservation Service, formerly the Soil Conservation Service (SCS).

"Nutrient" means an element or compound essential as raw materials for plant growth and development such as carbon, nitrogen, and phosphorus.

"Nutrient content" means the percentage of any primary nutrients such as nitrogen as N, phosphorus as P₂O₅, and potassium as K₂O contained in any type or source of plant nutrients.

"Nutrient management plan" or "plan" means a plan prepared by a Virginia certified nutrient management planner to manage the amount, placement, timing, and application of manure, fertilizer, biosolids, or other materials containing plant nutrients in order to reduce nutrient loss to the environment and to produce crops.

"Nutrient Management Training and Certification Fund" means the fund established by § 10.1-104.2 of the Code of Virginia to support the department's Nutrient Management Training and Certification Program.

"Organic nutrient source" or "organic source" means manure, biosolids, sludge, industrial waste, green manure, compost, or other plant or animal residues which contain plant nutrients.

"Organic residuals" means nutrients released over time from manure, biosolids, industrial wastes, legumes, or other organic sources of nutrients.

"Pasture" means land which supports the grazing of animals for forages.

"Person" means an individual, corporation, partnership, association, a governmental body and its subordinate units, a municipal corporation or any other legal entity.

"Phosphorus index" means the Virginia Phosphorus Index Version 2.0 Technical Guide, revised October 2005.

"Phosphorus saturation level" means the ratio of phosphorus to aluminum plus iron (P/(Al+Fe)) in a soil using the Acid Ammonium Oxalate in Darkness method described in Methods of Soil Analysis, Part 3, Chemical Methods, 1996 (pp. 649-650) or estimated with another extraction procedure correlated to the Acid Ammonium Oxalate in Darkness method and approved by the department.

"Plant available nutrients" means the portion of nutrients contained in nutrient sources which is expected to be available for potential use by plants during the growing season or the crop rotation.

"Pre-sidedress nitrate test" or "PSNT" means a procedure used to determine soil nitrate-nitrogen levels at a specific time during a corn crop growing season.

"Primary nutrients" means nitrogen as N, phosphorus as P₂O₅, and potassium as K₂O.

"Residual nutrients" means the level of nitrogen, phosphorus, and potassium remaining or available in the soil from previously applied nutrient sources, or unharvested plants or plant parts, or naturally occurring nutrient levels in the soil.

"Runoff" means that part of precipitation, snow melt, or irrigation water that runs off the land into streams or other surface water which can carry pollutants from the land.

"RUSLE2" means the USDA—NRCS Revised Universal Soil Loss Equation Version 2 software package.

"Secondary nutrient" means calcium, magnesium, or sulfur.

"Sewage sludge" or "sludge" means any solid, semisolid, or liquid residues which contain materials removed from municipal or domestic wastewater during treatment including primary and secondary residues. Other residuals or solid wastes consisting of materials collected and removed by sewage treatment, septage, and portable toilet wastes are also included in this definition. Liquid sludge contains less than 15% dry residue by weight or can be applied through subsurface injection or surface application with liquid application equipment. Dewatered sludge contains 15% or more dry residue by weight.

"Shall" means a mandatory requirement.

"Should" means a recommendation.

"Slope" means the degree of deviation of a surface from horizontal, measured as a percentage, as a numerical ratio, or in degrees.

"Sidedress" means the placement of fertilizer beside or between the rows of a crop after crop emergence.

"Sinkhole" means a depression in the earth's surface caused by dissolving of underlying limestone, salt, or gypsum having drainage patterns through underground channels.

"Slowly available nitrogen" means nitrogen sources that have delayed plant availability involving compounds which dissolve slowly, materials that must be microbially decomposed, or soluble compounds coated with substances highly impermeable to water such as polymer coated products, methylene urea, isobutylidene diurea (IBDU), urea formaldehyde based (UF), sulfur coated urea, and natural organics.

"Soil erosion" or "erosion" or "soil loss" means the wearing away of the land surface by water, wind, or waves.

"Soil management group" means a grouping of soils based on their similarity in profile characteristics which affect crop production and require specific soil and crop management practices.

"Soil pH level" means the negative logarithm of the hydrogen-ion activity of a soil which measures the relative acidity or alkalinity of the soil. The pH level affects the availability and plant utilization of nutrients.

"Soil productivity group" means a grouping of soils based upon expected yield levels for a given crop type.

"Soil series" means a classification of a specific soil type by name based on the morphological, chemical and physical properties of the soil.

"Soil survey" means a published or electronically available document developed by a governmental entity using the standards and protocols of the National Cooperative Soil Survey that includes detailed descriptions and classifications of soils, mapping of various soil series, and the interpretation of soils according to their adaptability for various crops and trees.

"Specialty crop" means vegetables, tree crops, perennial vine crops, ornamentals, horticultural crops, and other similar crops.

"Split application" means utilizing a sequence of two or more nutrient applications, separated by approximately three weeks or more, to a single crop in order to improve nutrient uptake efficiency.

"Surface water" means all water whose surface is exposed to the atmosphere.

"Tilled" means soil is disturbed between the time of harvest of the preceding crop through the time of planting of the current crop in that greater than 1/3 of the row width is disturbed by tillage implements such as moldboard plows, chisel plows, subsoilers, disks, field cultivators, roto-tillers, coulters or disk openers.

"Tillering" is means the formation of lateral shoots from the auxillary axillary buds of small grains and grasses.

"Tissue test" means an analysis of crop tissue for the percentage of nitrogen at key growth stages, and used as an intensive nutrient management technique with small grain crops.

"Topdress" means broadcast applications of fertilizer on crops such as small grains or forage after crop emergence has occurred.

"Trap crop" means a timely planted cereal crop for the purposes of capturing residual soil nitrogen and nitrogen that is released during the decomposition of manure or biosolids in order to manage limited manure or sewage sludge storage availability.

"Turfgrass" means selected grass species planted or sodded and managed for such uses as home lawns, golf courses, office parks and rights-of-way.

"Volatilization" means a process by which nitrogen is lost to the atmosphere as ammonia gas.

"Warm season grass" means a grass species of tropical origin that exhibits the highest rate of dry matter production in the day/night temperature range of 90°/79°F at a minimum to a maximum of 97°/88°F. Examples of warm season grasses include zoysia and bermuda grasses.

"Water insoluble nitrogen" or "WIN" means the amount of a type of slowly available nitrogen listed on fertilizer bags and reported as a percentage.

"Watershed" means a drainage area or basin in which all land and water areas drain or flow toward a central collector such as a stream, river, or lake at a lower elevation.

"Watershed code" means the letter and number used by the department to identify a watershed or hydrologic unit area.

"Zadoks' growth stage" means the numerical scale ranging from 0-93 which assigns values to small grain growth stages, e.g. Growth Stage 30 is just prior to the stem elongation phase in wheat growth.

4VAC5-15-150. Required nutrient management plan procedures.

A. Nutrient application.

1. A certified nutrient management planner shall include, in each plan, nutrient application practices for each field in the plan. The nutrient application rates shall be calculated for nitrogen (N), phosphate (P₂O₅), and potash (K₂O). Individual field recommendations shall be made after considering nutrients contained in fertilizers, manure, biosolids, industrial wastes, legumes in the crop rotation, crop residues, residual nutrients, and all other sources of nutrients. Individual fields may be grouped together if similar soil productivity levels, soil fertility levels, and environmentally sensitive site features exist.

2. Nutrient application rates.

a. Determination of crop nutrient needs shall be consistent with tables and procedures contained in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014 and the Commercial Vegetable Production Recommendations, 2005 (Virginia Cooperative Extension Publication 456-420), and shall be based on soil test results for P₂O₅ and K₂O.

b. Nitrogen applications rates in nutrient management plans shall not exceed crop nutrient needs in subdivision 2 a of this subsection.

c. Phosphorus application rates shall be managed to minimize adverse water quality impacts consistent with subdivisions 2 c (1) through (5) of this subsection.

(1) Phosphorus applications from inorganic nutrient sources shall not exceed crop nutrient needs over the crop rotation based on a soil test.

(2) Phosphorus applications shall not be included in nutrient management plans developed after December 31, 2005, for soils exceeding 65% phosphorus saturation levels as listed in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014, regardless of the outcome of other procedures specified in this subsection except as allowed in subdivision 2 c (4) of this subsection.

(3) Whenever possible, phosphorus applications from organic nutrient sources should not exceed crop needs based on a soil test over the duration of the crop rotation. If this is not possible, maximum phosphorus application rates and phosphorus control practices contained in nutrient management plans shall be consistent with the phosphorus management provisions contained in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014 except as allowed in subdivision 2 c (4) of this subsection.

(4) Fields controlled by existing operations that receive phosphorus applications only from on-farm or on-site generated liquid dairy manure, liquid swine manure, or liquid sewage sludge shall be limited to a maximum of crop removal amounts of applied phosphorus until December 31, 2010, if the field exceeds 65% phosphorus saturation levels or has a phosphorus index rating that exceeds 100. New operations that begin production after December 31, 2005, or operations that expand after December 31, 2005, by increasing the total phosphorus generated in liquid dairy manure, liquid swine manure or liquid sewage sludge by more than 10% shall not be considered existing operations.

(5) A single phosphorus application may be recommended to address multiple crops in the crop rotation identified within the timeframe covered by the nutrient management plan consistent with 4VAC5-15-150 D 1 if the single application does not exceed the sum of the appropriate application rates for individual crops as determined by subdivisions 2 c (1) through (3) of this subsection.

d. Recommended application rates for secondary nutrients and micronutrients should be at agronomically or economically justifiable levels for expected crop production. Potassium applications sufficient to meet crop nutrient needs shall be included in nutrient management plans for all fields consistent with recommendations contained in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014.

e. Expected crop yield shall be determined from any of the following methods on a given field:

(1) Soil productivity group expected crop yields based on and consistent with soil productivity information contained in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014;

(2) The farmer's past experience with crop yields in specific fields may be used to make reasonable adjustments to expected crop yields in subdivision 2 e (1) of this subsection in lieu of verifiable yield records provided the upward adjustments impact no more than 20% of the acreage of any crop on a particular farm; or

(3) Verifiable past crop yields are utilized to determined expected crop yield. The calculation of expected crop yield shall be an average of the three highest yielding years taken from the last five years the particular crop was grown in the specific field.

f. Representative soil analysis results for fields shall be determined by using standard soil sampling and analysis methods according to Methods of Soil Analysis, Part 3, Chemical Methods, 1996 utilizing the Mehlich I extraction procedure for phosphorus or other methods and laboratories approved by the department and correlated to Mehlich I and utilizing correlation procedures contained in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014. Soil analysis results shall be dated no more than three years prior to the beginning date of the nutrient management plan. A single composite soil sample should represent an area up to approximately 20 acres. Fields such as those common to strip cropping may be combined when soils, previous cropping history, and soil fertility are similar. Representative soil sample cores shall be obtained from the soil surface to a depth of four inches (0-4") for fields that have not been tilled within the past three years, and from the soil surface to a depth of six inches (0-6") for fields which are tilled or have been tilled within the past three years. Soil sampling of fields based on subfield grids or management zones may be utilized.

g. For existing operations, the most recent organic nutrient source analysis results or an average of past nutrient analysis results for the specific operation within the last three-year period shall be used to determine the nutrient content of organic nutrient sources. Manure analyses shall include percent moisture, total nitrogen or total Kjeldahl nitrogen, ammonium nitrogen, total phosphorus, and total potassium determined using laboratory methods consistent with Recommended Methods of Manure Analysis, publication A3769, University of Wisconsin, 2003 or other methods approved by the department. For plans on new animal waste facilities, average analyses published in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014, should be utilized unless proposed manure storage and treatment conditions warrant the use of alternative data. Plant available nutrient content shall be determined using the mineralization rates and availability coefficients found in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014, for different forms and sources of organic nutrients. Mineralization of organic nutrients from previous applications shall be accounted for in the plan.

h. The expected nitrogen contributions from legumes shall be credited when determining nutrient application rates at levels listed in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014.

3. Soil pH influences nutrient availability and crop nutrient utilization and should be adjusted to the level suited for the crop. Nutrient management plans shall contain lime recommendations to adjust soil pH to a level within the appropriate agronomic range for the existing crop or crop(s) to be grown. Recommendations shall address lime application if soil pH is below the optimal range. Nutrient management planners shall not recommend the application of lime, lime-amended materials, or nutrient sources that are expected to raise the soil pH to a level that exceeds the appropriate agronomic range for the growing crop or crop(s) to be grown based on recommendations contained in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014.

4. Nutrient application timing.

a. Timing recommendations for nutrient sources containing nitrogen shall be as close to plant nutrient uptake periods as reasonably possible. A certified nutrient management planner shall utilize procedures contained in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014, to determine the timing of nutrient applications. To reduce the potential for nutrient leaching or runoff, a certified nutrient management planner shall recommend applications of nitrogen-containing materials only to sites where an actively growing crop is in place at the time of application or where a timely planted crop will be established within 30 days of the planned nutrient application, except as specified in subdivisions 4 b through e of this subsection. If such nutrient applications are made to fall-seeded crops such as small grain, the crop planted shall be capable of germination and significant growth before the onset of winter so the crop is able to take up the available applied nitrogen.

b. Organic nutrient source applications may be applied at differing times than specified in subdivision 4 a of this subsection in order to manage storage constraints in accordance with the following conditions:

(1) Applications of organic nutrient sources shall be within 60 days of planting a spring seeded crop to sites that are not environmentally sensitive sites as identified in 4VAC5-15-10 or the Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014, except as specified in subdivision 4 b (2) of this subsection. Such nutrient applications shall not exceed allowable application rates of the spring seeded crop;

(2) Applications shall be within 90 days of planting a spring seeded crop to sites that meet all of the following requirements:

(a) Are not environmentally sensitive sites as identified in 4VAC5-15-10 or the Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014;

(b) Have slopes of less than 7.0% throughout the application area unless: (i) at least 60% uniformly distributed crop residue cover exists following application or (ii) the application and any associated tillage is in conformance with an existing and implemented soil conservation plan meeting NRCS requirements for the site; and

(c) The organic sources being applied are one of the following: semi-solid beef manure, semi-solid dairy manure with sawdust bedding or straw bedding, dewatered anaerobically digested sewage sludge, or dewatered lime stabilized sewage sludge. Such nutrient applications shall not exceed allowable application rates of the spring planted crop;

(3) Applications of organic nutrient sources may occur prior to the times specified in subdivisions 4 b (1) and (2) of this subsection on:

(a) Sites that are not environmentally sensitive sites if all of the following requirements are met: (i) a trap crop exists that has reached a Zadoks growth stage of 23 or greater having a uniform stand throughout the site area of at least 20 plants per square foot; (ii) the trap crop shall be allowed to continue growing on the entire site until within two weeks of the spring crop planting date; (iii) all such nitrogen applications of organic nutrient sources to trap crops shall not exceed the crop nutrient needs of the upcoming spring planted crop subtracting at least 30 pounds per acre of nitrogen to be reserved for use as a banded starter fertilizer at the time of spring planting; and (iv) the rate of organic nutrient source applied does not smother the crop.

(b) Environmentally sensitive sites as identified in 4VAC5-15-10 or the Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014, in addition to those criteria outlined in subdivision 4 b (3) (a) of this subsection, such applications to a trap crop must be within 60 days of planting a spring planted crop.

c. The nutrient timing requirements of subdivisions 4 a and b of this subsection for application of sewage sludge to nonenvironmentally sensitive sites in nutrient management plans shall not be effective until January 1, 2009. The delayed implementation time is provided to allow for the development of adequate winter storage capacity, landfilling, or alternative uses. All applications of sewage sludge to environmentally sensitive sites in nutrient management plans will fully comply with the requirements of subdivisions 4 a and b of this subsection by January 11, 2006.

d. Composted organic nutrient sources having a final carbon to nitrogen ratio of 20:1 or greater are exempt from requirements of subdivisions 4 a and b of this subsection if analyzed for carbon to nitrogen ratio at the conclusion of the composting process and results are obtained prior to land application. The planner shall recommend soil nitrate testing to determine nitrogen application rates during the growing season following the application of composted organic nutrient sources.

e. The nutrient management planner shall recommend split application of inorganic nitrogen fertilizers as starter or broadcast and sidedressing or top dressing in row crops and small grains consistent with procedures contained in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014, on environmentally sensitive sites as identified in 4VAC5-15-10. Split applications of inorganic nitrogen fertilizers and irrigation scheduling shall be recommended for crops to receive irrigation. The use of a pre-sidedress nitrogen test (PSNT) can help to determine nitrogen needs during the growing period. In lieu of split applications, the planner may recommend the application of the total nitrogen requirement for spring-planted row crops within one week prior to planting if at least 50% of the plant available nitrogen requirement of the crop is supplied with slowly available nitrogen sources.

f. Nutrient management plans shall include a statement indicating that applications of inorganic nutrient sources, liquid manure, liquid sewage sludge, or liquid industrial waste are not to occur on frozen or snow-covered ground. When ground is frozen, dry or semi-solid manures, dewatered sludges, or dewatered industrial wastes may only be applied if the field has: (i) slopes not greater than 6.0%; (ii) 60% uniform ground cover from crop residue or an existing actively growing crop such as a small grain or fescue with exposed plant height of three inches or more; (iii) a minimum of a 200-foot vegetated or adequate crop residue buffer between the application area and all surface water courses; and (iv) soils characterized by USDA as "well drained."

5. Application method for nutrients.

a. The application of nitrogen containing materials shall be managed to minimize runoff, leaching and volatilization losses.

b. Applications of liquid manures or sludges utilizing irrigation shall not be recommended to be applied at hydraulic rates above those contained in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014.

c. Plans shall not recommend liquid manure or sludge application rates utilizing nonirrigation liquid spreading equipment which exceed 14,000 gallons per acre (approximately one-half (0.5) inch) per application. The amount of liquid manure or sludge application in plans will not exceed the hydraulic loading capacity of the soil at the time of each application. If a subsequent pass across a field is necessary to achieve the desired application rate, the plan will allow for sufficient drying time.

d. Where possible, the planner should recommend that biosolids, industrial wastes and manures be incorporated or injected in the crop root zone in order to reduce losses of nitrogen to the atmosphere and to increase the plant available nitrogen to phosphorus ratio of these nutrient sources relative to crop nutrient needs. Lime stabilized biosolids should not be injected due to the creation of a localized band of high soil pH unless subsequent practices are utilized, such as disking, in order to adequately mix the soil.

e. The planner shall recommend setbacks around wells, springs, surface waters, sinkholes, and rock outcrops where manure, biosolids, or industrial waste should not be applied. Such setbacks recommended shall be consistent with criteria contained in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014, unless alternative setbacks or buffers are specified in regulations or permits pertaining to the site. For sites impacted by other regulations or permits, the planner shall include the setbacks and buffers specified in regulations promulgated under § 32.1-164.5 of the Code of Virginia for sewage sludge, § 62.1-44.17:1 of the Code of Virginia for animal waste, § 62.1-44.17:1.1 of the Code of Virginia for poultry waste, and Chapter 21 (§ 10.1-2100 et seq.) of Title 10.1 of the Code of Virginia for sites in Chesapeake Bay Preservation areas, and permits for industrial waste land application. The land area within setback and buffer areas shall be deducted from field acreage to determine usable field acreage for nutrient application in nutrient management plans.

B. Manure production and utilization.

1. The planner shall estimate the annual manure quantity produced on each farm utilizing tables and forms contained in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014, or from actual farm records of manure pumped or hauled during a representative 12-month period.

2. The nutrient management plan shall state the total amount of manure produced and the amount that can be used on the farm, utilizing the information and methods provided in the Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014. The plan shall discuss any excess manure and shall provide recommendations concerning options for the proper use of such excess manure.

C. Plans shall identify and address the protection from nutrient pollution of environmentally sensitive sites.

D. Plan maintenance and revisions.

1. A site-specific nutrient management plan developed in accordance with all requirements of these regulations, including specified crops or crop rotations, shall provide information on soil fertility and seasonal application of required nutrients for one to five years of crop production. Plans developed for a period of time greater than three years and up to five years shall be limited to sites in permanent pasture or continuous hay.

2. The plan shall state a need for immediate modification if (i) animal numbers are to increase above the level specified in the plan, (ii) animal types including intended market weights are to be changed, (iii) additional imported manure, biosolids, or industrial waste that was not identified in the existing plan is to be applied to fields under the control of the operator, or (iv) available land area for the utilization of manure decreases below the level necessary to utilize manure in the plan. The plan shall also state a need for modification prior to subsequent nutrient applications if cropping systems, rotations, or fields are changed and phosphorus will be applied at levels greater than crop nutrient needs based on soil analysis as determined from procedures in Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014.

3. Adjustments to manure production and application should be made if there are increases in animal numbers or changes in how animal waste is stored or applied, or when there are changes in nutrient content of manure resulting from changing feed rations, animal types, or new sampling and analysis for nutrient content and application rate calculations.

4. Soil analysis shall be recommended for each field at least once every three years to determine the soil fertility and pH, and to update the nutrient management plan.

5. Manure analysis shall be recommended before field application until a baseline nutrient content is established for the specific manure type on the corresponding farm operation. After a baseline nutrient content is established, a manure analysis shall be recommended at least once every three years for dry or semisolid manures, and at least once every year for liquid manures.

6. Modified top dressing or sidedressing application rates of nitrogen may be recommended if a pre-sidedress nitrogen test (PSNT) administered during the growing season indicates different levels of nitrogen than planning time calculations if the use of the PSNT and interpretation of the test results are consistent with Virginia Nutrient Management Standards and Criteria, revised October 2005 July 2014.

DOCUMENTS INCORPORATED BY REFERENCE (4VAC5-15)

Virginia Nutrient Management Standards and Criteria, Department of Conservation and Recreation, Division of Soil and Water Conservation, revised October 2005

Virginia Nutrient Management Standards and Criteria, revised July 2014, Department of Conservation and Recreation, Division of Nonpoint Pollution Prevention

Virginia Commercial Vegetable Production Recommendations for 2005, Virginia Cooperative Extension Service, Publication No. 456-420

Electronic Field Office Technical Guide, Natural Resources Conservation Service, United States Department of Agriculture

Methods of Soil Analysis, Part 3, Chemical Methods, 1996, Soil Science Society of America/American Society of Agronomy

Recommended Methods of Manure Analysis, publication A3769, University of Wisconsin, 2003

Tucker, M.R. 1992. Determination of phosphorus by Mehlich 3 extraction. pg. 6-8. In S.J. Donohue (Ed.) Reference Soil and Media Diagnostic Procedures for the Southern Region of the United States. Southern Cooperative Series Bulletin No. 374

Virginia Phosphorus Index Version 2.0 Technical Guide, Revised October 2005, Virginia Tech

VA.R. Doc. No. R14-3787; Filed December 28, 2013, 3:53 p.m.