TITLE 3

Agriculture

Regulatory Provisions

CHAPTER 22. NUTRIENT MANAGEMENT

Subchapter III. State Nutrient Management Program


The State Nutrient Management Program (SNMP) shall consist of:

(1) Certification of persons directly involved with the generation or application of nutrients within the State, as limited by § 2241 of this title;

(2) The development of and implementation of best management practices designed to improve water quality, optimize nutrient use and maintain a profitable agricultural industry in the State;

(3) Educational programs through which applicants shall be instructed in the best management practices established by the Commission;

(4) A method developed by the Commission and instituted prior to granting of any certificate to evaluate an applicant's comprehension of the best management practices established by the Commission; and

(5) Any other program elements instituted by the Commission.

72 Del. Laws, c. 60, § 1.;

(a) Beginning January 1, 2004, all persons who conduct the following activities shall be duly certified by the Commission in accordance with Commission regulations or shall utilize a duly certified person or firm:

(1) Operate any animal feeding operation in excess of 8 animal units;

(2) Apply nutrients to lands in excess of 10 acres or waters as a component of a commercial venture or lands that he or she owns, leases or otherwise controls; or

(3) Advise or consult with persons required by this chapter to be certified by the Commission.

(b) The Commission shall establish by regulation the following classifications for certification of nutrient handlers for use in the SNMP:

(1) Nutrient generator: a person within the State who operates a facility that produces organic or inorganic nutrients;

(2) Private nutrient handler: A person in this State who applies organic or inorganic nutrients to lands or waters he or she owns, leases or otherwise controls;

(3) Commercial nutrient handler: A person in this State who applies organic or inorganic nutrients to lands or waters as a component of a commercial or agricultural business in exchange for a fee or service charge;

(4) Nutrient consultant: A person in this State who is engaged in the activities of advising or consulting regarding the formulation, application or scheduling of organic or inorganic nutrients within the State.

(c) The Commission may subclassify any certificates described in subsection (b) of this section as necessary. Separate subclassifications may be specified as to the method used by nutrient handlers to apply nutrients, the use of specific quantities or types of nutrients, or any other identifiable characteristics of nutrient management the Commission deems necessary.

(d) These certification requirements shall not apply to individuals who are performing nutrient application services under the direct supervision of a certified person as a private or commercial nutrient handler.

72 Del. Laws, c. 60, § 1.;

(a) Applications for certification shall be made to the Commission in writing on a form designated by the Commission.

(b) The Commission shall develop and approve minimum criteria for certification, which shall be included in regulations promulgated by the Secretary.

(c) The Commission may establish by regulation a yearly fee not to exceed $100 for each certificate.

(d) If the Commission finds the applicant qualified to handle nutrients in the classifications the applicant has applied for, the Commission may issue a certificate limited to the classifications for which the applicant is qualified. The Commission may limit the certificate of the applicant based on any subclassification the Commission has established. If a certificate is not issued as applied for, the Commission shall inform the applicant in writing of the reasons therefor.

72 Del. Laws, c. 60, § 1; 70 Del. Laws, c. 186, § 1.;

(a) The Commission may refuse to grant any certificate if the applicant fails to meet the minimum criteria for certification or has been found to have violated this chapter or Commission regulations related to the generation or application of nutrients in this State.

(b) All decisions of the Commission relating to the denial of a certificate shall be final and conclusive unless the person who was denied a certificate shall appeal that denial pursuant to provisions of § 2262 of this title.

72 Del. Laws, c. 60, § 1.;

(a) The Commission may, after notice and opportunity for a hearing, suspend or modify any certificate granted under this chapter or fine any person against whom a complaint has been brought, or both, where the Commission has reasonable grounds to believe that the person against whom a complaint has been brought is responsible for any violations of this chapter or Commission regulations. The Commission shall furnish the person accused of a violation with notice of the time and place of 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.

(b) The Commission may, after notice and opportunity for a hearing, suspend, modify or revoke any certificate granted under this chapter if the person certified has been found guilty of any violation of this chapter or Commission regulations.

(c) All decisions of the Commission relating to suspension, modification or revocation of a certificate shall be final and conclusive unless the person whose certificate was suspended, modified or revoked appeals according to the provisions of § 2263 of this title.

72 Del. Laws, c. 60, § 1.;

(a) The Commission shall establish the length of time that certificates shall remain in full force and effect, and if they are to expire, the procedure for renewal.

(b) All decisions of the Commission relating to the refusal of the Commission to renew a certificate shall be final and conclusive unless the person whose certificate was not renewed shall appeal pursuant to the provisions of § 2262 of this title.

72 Del. Laws, c. 60, § 1.;

(a) On or before July 1, 2000, or prior to commencing operations, each commercial processor operating in the State shall file with the Commission a plan under which the commercial processor either directly or under contract with a third party shall:

(1) Provide or assist in providing technical assistance to growers with whom it contracts on the proper management and storage of waste in accordance with best management practices approved by the Commission;

(2) Provide or assist in providing continuing education programs on proper waste management that is protective of Delaware's environment for the growers with whom it contracts, as well as other persons who may handle or utilize such waste;

(3) Conduct or fund research and demonstration programs that will contribute to improved waste management practices;

(4) Formulate and implement nutrient reduction strategies that effectively minimize the addition of nutrients to the environment without having adverse health impacts on animals or reduction in the growth of animals; and

(5) Report annually to the Commission on the activities it has undertaken pursuant to its plan and any amendments thereto.

(b) This section is not to be construed as a mandate to involve commercial processors in farm activities not related to waste management.

72 Del. Laws, c. 60, § 1.;

(a) 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 in accordance with the schedule outlined in this section. All nutrient management plans shall include, but not be limited to:

(1) Field maps showing reference points (such as buildings, stream, irrigation equipment, etc.), number of acres and soil types;

(2) Soil and organic waste analyses;

(3) Current and planned crop rotations;

(4) Expected yields based on best 4 out of 7 year data or, in the absence thereof, soil productivity charts; and

(5) Recommended rates, timing and methods of nutrient applications.

(b) Nutrient management plans shall specify the level of nutrient applications that are needed to attain expected crop yields as defined in paragraph (a)(4) of this section. Applications of phosphorus to high phosphorous soils cannot exceed a 3-year crop removal rate. Nitrogen applications cannot exceed the expected yield, as defined in paragraph (a)(4) of this section of the specific crop.

(c) All animal waste management plans, nutrient management plans and records of implementation shall be kept by the land owner or person responsible for the plans or records. Animal waste management plans, nutrient management plans and records of implementation shall not be considered as public records under the Freedom of Information Act and shall not be disclosed, except, however, that they shall be made available for inspection by the Delaware Department of Agriculture and the Commission. Records of implementation shall include:

(1) Soil test results and recommended nutrient application rates;

(2) Quantities, analyses and sources of nutrients applied;

(3) Dates and methods of nutrient applications;

(4) Crops planted, yields and crop residues removed; and

(5) Certification statement signed by the operator to document the intention of nutrient management and/or animal waste management plan implementation

Notwithstanding the foregoing, animal waste management plans, nutrient management plans and records of implementation may be retained, disclosed and made public as provided for in § 2248 of this title.

(d) Nutrient management plans shall be updated a minimum of every 3 years or upon significant alterations in facility operations, or upon a 25% or greater increase in facility operations. Such plans shall be reported to the Commission no later than December 15 of the year in which it must be updated.

(e) If a person implementing a nutrient management plan intends to store manure, other than in an approved manure storage structure or facility, such outdoor storage shall:

(1) Be reflected in the person's nutrient management plan;

(2) Be at least 100 feet from any body of water or drainage ditch;

(3) Be at least 100 feet from any public road;

(4) Be at least 200 feet from any residence that is not located on the person's property; and

(5) Be at least 6 feet high and in a conical shape.

(f) In situations where persons other than the land owner are responsible for nutrient applications, nutrient management plans as required in this section shall be the responsibility of the person actually managing the application of nutrients to that property.

(g) Upon completion and implementation of a nutrient management plan, the owner/operator/planner shall notify the Commission within 60 days of the completion of the plan.

(h) In the event of circumstances that are beyond the control of the person implementing a nutrient management plan pursuant to this section, such person shall notify the Department of any actions he or she intends to take as a result of those circumstances.

(i) In the case of animal feeding operations where no other nutrients are used for farming and the animal waste is not land-applied, the operator of the facility may substitute an animal waste management plan for a nutrient management plan. At a minimum, the animal waste management plan shall include:

(1) Information concerning how the waste is stored prior to transport;

(2) Records of where and to whom the animal waste was transported and the amount of such waste; and

(3) The mortality disposal method.

(j) The State shall make nutrient consultants available through the conservation districts to provide free nutrient management plans assistance to anyone requesting such assistance. For those persons wishing to hire private nutrient consultants, the State, through the conservation districts, shall reimburse any person establishing a nutrient management plan or updating an established nutrient management plan at a rate and amount that shall be determined annually by the Commission and subject to annual appropriations.

(k) County, municipal and industrial facilities discharging solid or liquid waste and permitted by the Department of Natural Resources and Environmental Control under The Guidance and Regulations Governing the Land Treatment of Wastes shall be exempt from the provisions of this chapter. Provided, however that they provide the Commission with an annual report as required by their land treatment permit.

72 Del. Laws, c. 60, § 1; 78 Del. Laws, c. 37, § 2.;

(a) Section 301(a) of the Clean Water Act (CWA) [33 U.S.C. § 1311] establishes statutory requirements for the discharge of pollutants from point sources to waters of the United States. Under CWA § 502(14) and implementing regulations "concentrated animal feeding operations" are point sources subject to the National Pollutant Discharge Elimination System (NPDES) program. The Regulations Governing the Control of Water Pollution, § 9.5 Concentrated Animal Feeding Operation, CDR 7-7000-7201 § 9.5, Del. Reg. 482 (November 2010), as may be amended, are hereby ratified and approved. Said regulations, together with the State Technical Standards, are fundamental components of the CAFO NPDES Program. Nothing in this section shall be construed to require ratification or approval of any additions, deletions, revisions or amendments of any regulations enacted pursuant to this section at any time.

(b) The Secretaries of the Delaware Department of Agriculture (DDA) and the Department of Natural Resources and Environmental Control (DNREC) shall have authority to jointly promulgate and amend regulations for the CAFO NPDES Program, including but not limited to the authority to determine the extent to which any nutrient management plan (NMP), annual report, or other documents required to be submitted by a concentrated animal feeding operation permitted under the CAFO NPDES Program, shall be made public or not, and the authority to require any concentrated animal feeding operation to apply for and obtain an NPDES CAFO permit.

(c) Each person or concentrated animal feeding operation covered by this section or identified as requiring an NMP by DDA and DNREC shall develop and submit the requisite, signed NMP, on such terms and conditions as may be specified by DDA or DNREC. The NMP shall be developed in accordance with the provisions of § 2247 of this title, provided, however, that DNREC and DDA may prescribe additional or different requirements for an NMP submitted under the CAFO NPDES Program. As necessary, the NMP shall also include but not be limited to, the following additional site specific handling and storage considerations:

(1) Diverting clean water from contacting animal waste or litter;

(2) Preventing storage, collection and conveyance systems from leaking organic matter, nutrients and pathogens to ground or surface water;

(3) Providing adequate storage to prevent polluted runoff;

(4) Handling manure and litter to reduce nutrient losses;

(5) Managing dead animals to protect ground and surface waters;

(6) Proper chemical handling; and,

(7) Tillage and crop residue management practices.

The NMP shall be amended pursuant to § 2247(d) of this title or whenever there is any significant change in the design, construction or operation which has a significant effect on the potential for the discharge of pollutants to state waters, or as may be otherwise required by regulation.

(d) The Memorandum of Agreement between DDA and DNREC dated December 16, 2010 (MOA), is hereby ratified and approved. DDA has authority to fulfill the terms of the MOA, to undertake all actions ancillary to the MOA, and otherwise to contribute to the CAFO NPDES Program.

(e) The Secretary shall notify a person in writing that an NPDES permit is required. Such notice shall include a brief statement of the reasons for the decision, an application form, a deadline for submission of the application and a statement regarding the effective date of coverage. A person's obligation to independently seek and secure an NPDES permit is not conditioned upon or qualified by the Secretary's duty to notify a person that an NPDES permit is required.

72 Del. Laws, c. 60, § 1; 78 Del. Laws, c. 37, §§ 3-7.;

Funds appropriated to the Nutrient Transport Program, in the annual operating budget act are intended to support projects that transport poultry and animal waste, including litter, for alternative use projects and for transporting the poultry and animal waste to cropland showing a need for these nutrients as indicated by a nutrient management plan. It is intended that a portion of these funds will be use to remove the nutrients from Delaware and for farm to farm relocation within Delaware. Reimbursement of transportation shall not exceed $20 per ton of poultry or nonpoultry waste. The program shall be developed and implemented by the Delaware Department of Agriculture according to the guidelines established by the Delaware Nutrient Management Commission as provided for under § 2220(a)(4) of this title. Any appropriation to the Nutrient Management Contingency shall be used for the sole purpose of nutrient relocation and/or nutrient management planning pursuant to these guidelines.

73 Del. Laws, c. 322, § 3.;