[36 Pa.B. 2636]
[Saturday, June 3, 2006]
[Continued from previous Web Page]
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 83. STATE CONSERVATION COMMISSION
Subchapter D. NUTRIENT MANAGEMENT
GENERAL PROVISIONS § 83.201. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
AEU--Animal equivalent unit--One thousand pounds live weight of livestock or poultry animals, on an annualized basis, regardless of the actual number of individual animals comprising the unit.
AEU per acre--An animal equivalent unit per acre of cropland or acre of land suitable for application of animal manure.
Act--3 Pa.C.S. §§ 501--522 (relating to nutrient management and odor management).
Act 49--Commercial Manure Hauler and Broker Certification Act (3 P. S. §§ 2010.1--2010.12).
Agent--An entity delegated Commission powers and duties under the authority of section 4(3) of the Conservation District Law (3 P. S. § 852(3)), including a partnership, association, corporation, municipality, municipal authority, political subdivision of this Commonwealth and an agency, department, commission or authority of the Commonwealth.
Agricultural erosion and sediment control plan--A site-specific plan identifying BMPs to minimize accelerated erosion and sedimentation from agricultural runoff, required by Chapter 102 (relating to erosion and sediment control). The agricultural erosion and sediment control components of a conservation plan may meet this requirement, if allowed under Chapter 102.
Agricultural operations--The management and use of farming resources for the production of crops, livestock or poultry.
Animal concentration areas--
(i) Barnyards, feedlots, loafing areas, exercise lots or other similar animal confinement areas that will not maintain a growing crop, or where deposited manure nitrogen is in excess of crop needs.
(ii) The term excludes areas managed as pastures or other cropland.
(iii) The term excludes pasture access ways, if they do not cause direct flow of nutrients to surface water or groundwater.
Animal unit--One thousand pounds live weight of livestock or poultry animals, regardless of the actual number of individual animals comprising the unit.
BMP--Best management practice--A practice or combination of practices determined by the Commission to be effective and practicable (given technological, economic and institutional considerations) to manage nutrients to protect surface water and groundwater taking into account applicable nutrient requirements for crop utilization.
Broker--A person that is not working for or under the control of an agricultural operation and that assumes temporary control or ownership of manure from an NMP operation and arranges for transport to and utilization at an importing operation or other location.
Buffer or vegetated buffer--
(i) A permanent strip of dense perennial vegetation established parallel to the contours of, and perpendicular to, the dominant slope of the field.
(ii) There is no mechanical application of manure within the buffer area.
(iii) The purposes include slowing water runoff, enhancing water infiltration and minimizing the risk of any potential nutrients from leaving the field and reaching surface waters.
CAO--Concentrated animal operation--Agricultural operations with eight or more animal equivalent units where the animal density exceeds two AEUs per acre on an annualized basis.
Commercial manure hauler--A person that transports or land-applies manure as a contract agent for an NMP operation or a broker under the direction of the operation or broker.
Commission--The State Conservation Commission established by the Conservation District Law (3 P. S. §§ 849--864).
Concentrated water flow areas--
(i) Natural or manmade areas where stormwater runoff is channeled and conveyed directly to surface water or groundwater.
(ii) The term includes, but is not limited to, ditches, waterways, gullies and swales.
Conservation district--A county conservation district established under the Conservation District Law.
Cooperative Extension--The Penn State Cooperative Extension.
Critical runoff problem areas--
(i) Nonvegetated concentrated water flow areas directly discharging into surface water or groundwater, and areas where runoff containing nutrients that were applied after the growing season discharge directly into surface water or groundwater.
(ii) The term includes gullies and unprotected ditches.
Crop management unit--The portion of cropland, hayland and pasture, including a field, a portion of a field, or group of fields, on an agricultural operation that has a unique management history (same rotation and manure history), similar production capability, and that will be managed uniformly as a distinct unit.
Emergency manure stacking areas--Unimproved areas that are authorized to be used for the storage of solid manure to be applied to the land as plant nutrients, except that these areas are only used as a contingency measure to address situations where the approved manure handling practice as described in the plan is not able to address the manure generated on the operation due to unforseen circumstances.
Farming resources--The animals, facilities and lands used for the production or raising of crops, livestock or poultry. The lands are limited to those located at the animal facility which are owned by the operator of the facility, and other owned, rented or leased lands under the management control of the operator of the facility that are used for the application, treatment or storage of manure generated at the facility.
Fund--The Nutrient Management Fund established under section 512 of the act (relating to nutrient management fund).
In-field stacking--The practice of stacking solid manure on unimproved cropland, hayland and pasture areas to be applied to the land as plant nutrients.
Intermittent stream--A body of water flowing in a channel or bed composed primarily of substrates associated with flowing water which, during periods of the year, is below the water table and obtains its flow from both surface runoff and groundwater discharges.
Livestock--
(i) Animals raised, stabled, fed or maintained on an agricultural operation with the purpose of generating income or providing work, recreation or transportation.
(ii) Examples include: dairy cows, beef cattle, goats, sheep, swine and horses.
(iii) The term does not include aquatic species.
Manure--
(i) Animal excrement, including poultry litter, which is produced at an agricultural operation.
(ii) The term includes materials such as bedding, washwater and other materials which are commingled with that excrement.
Manure group--A portion of the manure generated on the operation that is distinct due to factors including species, handling practices, manure consistency, anticipated nutrient content or application season.
Manure Management Manual--The guidance manual published by the Department of Environmental Protection that is entitled Manure Management Manual for Environmental Protection, including its supplements and amendments. The manual describes approved manure management practices for all agricultural operations as required by § 91.36 (relating to pollution control and prevention at agricultural operations).
Manure storage facility--
(i) A permanent structure or facility, or portion of a structure or facility, utilized for the primary purpose of containing manure.
(ii) Examples include: liquid manure structures, manure storage ponds, component reception pits and transfer pipes, containment structures built under a confinement building, permanent stacking and composting facilities and manure treatment facilities.
(iii) The term does not include the animal confinement areas of poultry houses, horse stalls, freestall barns or bedded pack animal housing systems.
Mechanically incorporated--The combination of manure with the soil by means of farm tillage or manure injection equipment, including disks and twisted shank chisel plows, to minimize the potential of overland runoff of the manure.
NMP operation--Nutrient management plan operation--CAOs, VAOs and operations required to develop compliance plans under section 506(j) of the act (relating to nutrient management plans).
NRCS--Natural Resources Conservation Service--The Natural Resources Conservation Service of the United States Department of Agriculture, formerly known as the Soil Conservation Service.
National Wetlands Inventory--The inventory of known wetlands prepared by the United States Fish and Wildlife Service and readily available on maps in digital format on the Internet.
Nutrient--A substance or recognized plant nutrient, element or compound which is used or sold for its plant nutritive content or its claimed nutritive value. The term includes, but is not limited to, livestock and poultry manures, compost as fertilizer, commercially manufactured chemical fertilizers, biosolids or combinations thereof. The only nutrient elements of concern under this subchapter, based on their potential to impact the quality of surface waters or groundwater, are nitrogen and phosphorus. Unless the context clearly indicates otherwise, ''nutrients'' as used in this subchapter means nitrogen and phosphorus.
Nutrient balance sheet--A crop management BMP developed to protect surface and groundwater quality by providing the calculations for determining the appropriate rate, method and timing of manure that can be applied to cropland, hayland and pasture, to meet the purposes of this subchapter.
Nutrient management specialist or specialist--A person satisfying the requirements of the Department of Agriculture's Nutrient Management Certification Program in 7 Pa. Code §§ 130b.1--130b.51 (relating to nutrient management certification).
Pastures--Crop areas managed for forage production that are harvested by livestock, or a combination of livestock and mechanical harvesting.
Pennsylvania Agronomy Guide--The reference book published by Cooperative Extension and updated periodically, used as a practical guide to grain and forage production, soil fertility management, pest management and erosion control, with special reference to Pennsylvania conditions.
Pennsylvania Technical Guide--A primary reference document published by the United States Department of Agriculture's NRCS, entitled The Pennsylvania Soil and Water Conservation Technical Guide, which is used by technically trained persons to plan and apply appropriate BMPs.
Perennial stream--A body of water flowing in a channel or bed composed primarily of substrates associated with flowing waters and capable, in the absence of pollution or other manmade stream disturbances, of supporting bottom dwelling aquatic animals.
Permanent manure stacking areas--Designated, improved storage areas that are used for the long term or recurring storage of solid manure.
Phosphorus Index-
(i) The field evaluation methodology developed specifically for this Commonwealth and approved by the Commission, which combines indicators of phosphorus sources and phosphorus transport, to identify areas that have a high vulnerability or risk of phosphorus loss to surface waters.
(ii) This evaluation methodology provides direction on BMPs to address the land application of phosphorus-containing nutrient sources, to protect water quality.
Plan--Nutrient management plan--
(i) A written site-specific plan which meets the requirements in the act, and in §§ 83.271, 83.272 and 83.281--83.381.
(ii) Except when otherwise stated, the term includes plan amendments required under this subchapter.
Soil test level--The level of soil characteristics such as phosphorus, potassium and pH, analyzed using standard industry methods such as those described in the current Pennsylvania Agronomy Guide.
Spring--A place where groundwater flows naturally from rock or soil onto the land surface for a total of 183 days or more per year.
Stormwater--Runoff from the surface of the land resulting from rain, snow or ice melt.
VAO--Voluntary agricultural operation--
(i) Any operation that voluntarily agrees to meet the requirements of this subchapter even though it is not otherwise required under the act or this chapter to submit a nutrient management plan.
(ii) The term includes agricultural operations applying for financial assistance under the act.
Winter--December 15 to February 28, or any time the ground is frozen at least 4 inches deep or is snow covered.
§ 83.202. Scope.
This subchapter specifies criteria and requirements for:
(1) Nutrient management plans required under the act for CAOs, VAOs and operations required to develop compliance plans under section 506(j) of the act (relating to nutrient management plans).
(2) The construction, location, design, installation and operation of animal manure storage facilities on NMP operations.
(3) Manure handling in emergency situations when there is an outbreak of a contagious disease that poses a threat to animal or human health.
(4) The awarding of financial assistance under the act for the implementation of plans for existing agricultural operations.
(5) The awarding of incentives for the development of plans under the Plan Development Incentives Program in §§ 83.211--83.216.
§ 83.203. Purpose.
The purposes of this subchapter are to:
(1) Assure the proper utilization and management of nutrients on CAOs, VAOs and operations required to develop compliance plans under section 506(j) of the act (relating to nutrient management plans).
(2) Assure the proper utilization and management of nutrients when manure is exported off of the operations described in paragraph (1).
(3) Protect the quality of surface water and groundwater.
§ 83.204. (Reserved).
§ 83.205. Preemption of local ordinances.
(a) The act and this subchapter are of Statewide concern and occupy the whole field of regulation regarding nutrient management to the exclusion of all local regulations.
(b) After October 1, 1997, no ordinance or regulation of any political subdivision or home rule municipality may prohibit or in any way regulate practices related to the storage, handling or land application of animal manure or nutrients or to the construction, location or operation of facilities used for storage of animal manure or nutrients or practices otherwise regulated by the act or this subchapter if the municipal ordinance is in conflict with the act and this subchapter.
(c) Nothing in the act or this subchapter prevents a political subdivision or home rule municipality from adopting and enforcing ordinances or regulations which are consistent with and no more stringent than the requirements of the act and this subchapter.
(d) No penalty will be assessed under any valid local ordinance or regulation for any violation for which a penalty has been assessed under the act or this subchapter.
§ 83.206. Limitation of liability.
If an operator is fully and properly implementing a plan approved by a delegated county conservation district or the Commission and maintained under the act and this subchapter, the implementation shall be given appropriate consideration as a mitigating factor in any civil action for penalties or damages alleged to have been caused by the management or utilization of nutrients under the implementation.
PLAN DEVELOPMENT AND PLAN MAINTENANCE INCENTIVES PROGRAMS § 83.211. Applicant eligibility.
(a) To be eligible to apply for financial assistance for nutrient management plan development or plan maintenance, a person shall meet the following criteria.
(1) In addition to seeking financial assistance for the implementation of a nutrient management plan under §§ 83.221--83.233 (relating to financial assistance), an NMP operation seeking to submit a nutrient management plan for the first time under the act, may apply for funding under the Plan Development Incentives Program for the development of a nutrient management plan by a certified plan writer.
(2) In addition to seeking financial assistance for the implementation of a nutrient management plan under §§ 83.221--83.233, an NMP operation seeking to amend an existing nutrient management plan approved prior to October 1, 2006, may apply for funding under the Plan Development Incentives Program for the development of the amendment to the existing approved plan by a certified nutrient management plan writer.
(3) In addition to seeking financial assistance for the implementation of a nutrient management plan under §§ 83.221--83.233, an NMP operation seeking to update or amend an approved nutrient management plan meeting the requirements of this revised subchapter, may apply for funding under the Plan Maintenance Incentives Program for the development of a nutrient management plan update or amendment by a certified nutrient management plan writer.
(b) Agricultural operations existing as of October 1, 2006, and are or will be producing or utilizing livestock or poultry manure or both on their operation, are eligible to receive funding under this subchapter.
(c) NMP operations that are in violation of the nutrient management plan submission requirements, or any other requirements of an existing nutrient management plan, the act, or this chapter, will not be eligible for funding under the Plan Development Incentives Program or the Plan Maintenance Incentives Program.
(d) NMP operations having an approved plan prior to October 1, 2006, that are in compliance with that plan and the act are eligible to receive funding under the Plan Development Incentives Program to amend the plan to meet the requirements of this revised subchapter.
(e) Only those agricultural operations having an approved nutrient management plan meeting the requirements of this revised subchapter shall be eligible to receive funding under the Plan Maintenance Incentives Program.
§ 83.212. Application procedure.
(a) An application for funding from the Plan Development Incentives Program or Plan Maintenance Incentives Program shall be made on forms developed by the Commission and shall be addressed to the Commission or delegated conservation district.
(b) An application received by the Commission or delegated conservation district will be reviewed for completeness, eligibility and the appropriate level of funding.
(c) If the application is determined to be incomplete, the Commission, or delegated conservation district, will provide the applicant with a written explanation of the reason for the determination, and request the additional information needed to complete the application process.
(d) The Commission or delegated conservation district will approve or disapprove each application submitted. Within 45 days of receipt of the required information, applicants will be notified in writing of actions taken on their applications and their rights to appeal the actions.
(e) If the approval of applications for funding from the Plan Development Incentives Program or Plan Maintenance Incentives Program is delegated to a county conservation district under § 83.241 (relating to delegation to local agencies), actions of conservation districts shall be deemed actions of the Commission unless an applicant aggrieved by an action of a conservation district seeks Commission review of the action within 30 days from actual or constructive notice of the action.
(f) The applicant may appeal a decision of the Commission to the EHB as provided for in section 517 of the act (relating to appealable actions).
§ 83.213. Application prioritization criteria.
(a) The distribution of funding under the Plan Development Incentives Program shall be provided to the extent funds are available based on the following prioritization:
(1) Agricultural operations newly classified as CAOs due to the revised criteria established in this amended subchapter.
(2) CAOs amending a plan approved prior to October 1, 2006, to conform with the revised program criteria.
(3) CAOs coming into existence after October 1, 2006, due to loss of rented acres.
(4) VAOs amending a plan approved prior to October 1, 2006, to conform with the revised program criteria.
(5) VAOs submitting a plan under the act.
(6) Other CAOs coming into existence after October 1, 2006.
(b) The distribution of funding under the Plan Maintenance Incentives Program will be provided to the extent funds are available based on the following prioritization:
(1) CAOs developing plan updates or amendments.
(2) VAOs developing plan updates or amendments.
(3) Other NMP operations developing plan updates or amendments.
§ 83.214. Eligible costs.
(a) Eligible costs considered by the Commission under the Plan Development Incentives Program are those fees incurred for the development of the initial nutrient management plan or the amendment of a nutrient management plan approved prior to October 1, 2006, to conform with the revised program criteria.
(b) Eligible costs considered by the Commission under the Plan Maintenance Incentives Program are those fees incurred for the development of an update or amendment to a nutrient management plan meeting the requirements of this revised subchapter.
(c) Costs of soil and manure tests (not including labor costs) for initial plan development, or for developing the amended or updated plan as described in subsections (a) and (b), are eligible for reimbursement.
§ 83.215. Funding limitations.
(a) The Commission will limit individual awards in the amounts it deems appropriate for the particular classification of operation.
(b) Funding under the Plan Development Incentives Program will be limited to a one-time reimbursement payment for initial plan development costs incurred after the eligible agricultural operator's application has been approved, and as a one-time reimbursement payment for a nutrient management plan amendment of a plan approved prior to October 1, 2006, to conform with the revised program criteria.
(c) Funding under the Plan Maintenance Incentives Program will be limited to one payment annually for updating or amending an approved nutrient management plan meeting the requirements of this revised subchapter.
(d) Funding under both the Plan Development Incentives Program and the Plan Maintenance Incentives Program will not be available for planning efforts initiated prior to approval of the request for participation in the program.
§ 83.216. Implementation and reporting.
(a) The Commission will develop implementation and reporting documents defining the terms and conditions under which funding under each program will be provided and other documents determined to be necessary by the Commission.
(b) Only plans or plan updates and amendments meeting the requirements of this revised subchapter will be eligible for reimbursement under this program.
(c) The recipient of a Plan Development Incentives Program or a Plan Maintenance Incentives Program award shall maintain financial records for 3 years to substantiate reimbursement expenditures covered by this subchapter.
FINANCIAL ASSISTANCE § 83.221. Applicant eligibility.
(a) An owner of an agricultural operation existing as of October 1, 2006, may apply for financial assistance for the implementation of plans developed under the act. The owner shall have legal and financial responsibility for the agricultural operation during the term of the financial assistance provided by the Commission.
(b) Existing CAOs required to implement BMPs to conform with the revised criteria of this subchapter are eligible for financial assistance for the implementation of the BMPs.
(c) New agricultural operations coming into existence after October 1, 2006, are not eligible for financial assistance for the implementation of their approved plan, including the BMPs in the plan.
(d) Existing NMP operations having an approved nutrient management plan that are currently or were in violation of the plan submission requirements or any other requirements of this act prior to October 1, 2006, are not eligible for funding under this program.
(e) Existing agricultural operations expanding to become a CAO after October 1, 2006, are not eligible for financial assistance for the implementation of their approved plan, including the BMPs in the plan.
(f) Only those agricultural operations having over eight AEUs are eligible to receive financial assistance for the implementation of their approved plan, including the BMPs in the plan.
§ 83.222. Condition for receipt of financial assistance.
(a) An agricultural operation approved to receive financial assistance under the Chesapeake Bay Nonpoint Source Pollution Abatement Program after October 1, 2006, or otherwise receiving financial assistance under the act for plans, shall agree to develop and implement a plan as a condition for receiving the financial assistance.
(b) A recipient of financial assistance under this subchapter shall be obligated to maintain the BMPs funded by the financial assistance and continue to implement and adhere to the provisions of the plan, the act and this chapter for 10 years following receipt of the funds.
§ 83.224. Project evaluation and prioritization criteria.
(a) Applications for financial assistance will be evaluated in accordance with project evaluation criteria guidelines developed by the Commission.
(b) Applications for financial assistance will be prioritized for consideration as follows:
(1) CAOs in compliance with the act and properly implementing a plan approved prior to October 1, 2006, which, due to the revisions to the regulations, are required to implement additional practices to meet the new criteria.
(2) Existing agricultural operations newly classified as CAOs due to the revised criteria established in this amended subchapter.
(3) Existing agricultural operations that become CAOs after October 1, 2006, due to loss of rented acres.
(4) VAOs having an approved plan as of October 1, 2006.
(5) Other agricultural operations in existence as of October 1, 2006.
§ 83.225. Application procedure.
(a) An application for financial assistance shall be made on forms approved by the Commission and shall be addressed to the Commission or a delegated agent.
(b) An application received by the Commission or delegated agent will be reviewed for completeness and eligibility. An application must include a copy of the approved plan which identifies the proposed BMPs for which financial assistance is being requested.
(c) If the application is determined to be incomplete, the Commission or a delegated agent will provide the applicant with a written explanation of the reasons for the determination, and request the additional information needed to complete the application process.
(d) Within 60 days of receipt of all required information, applicants will be notified in writing of actions taken on their applications and any right to appeal the actions.
(e) The applicant may appeal a decision of the Commission to the EHB as provided for in section 517 of the act (relating to appealable actions).
§ 83.226. Eligible costs for the implementation of an approved plan.
(a) Eligible project costs considered by the Commission shall be the costs necessary to implement the plan and may include the following:
(1) Project design and engineering including plans, specifications, cost estimates, certifications and surveys.
(2) Costs associated with obtaining the financial assistance and may include loan origination or loan application fees, or both, title fees and filing fees.
(3) Project construction, including labor, materials, machinery, equipment and site preparation associated with the project.
(4) Costs associated with the implementation of a cover cropping BMP, in response to the requirement contained under § 83.294(f)(5)(i) (relating to nutrient application procedures).
(5) Other costs the Commission has determined to be necessary.
(b) Funds encumbered or advanced for the project which are not used for eligible costs in the project shall be returned to the fund or account from which they originated for reallocation and use in the implementation of other plans.
(c) The Commission may consider alternative manure technology practices and equipment eligible to receive financial assistance under this subchapter if these practices or equipment are considered to be effective in addressing nutrient management issues on the agricultural operation. Financial assistance funding levels and limitations for these alternative practices and equipment will be established by the Commission. These eligible practices may be approved to service an individual operation or may service more than one operation if approved by the Commission. For multi-partnered projects, all farms providing manure for the project must agree to amend an existing plan or develop and implement a new approved nutrient management plan meeting the provisions of this subchapter.
§ 83.229. Grants.
(a) A grant will be considered when funds have been made available to the Commission and the Commission determines that the financial condition of the recipient is such that the repayment of a loan is unlikely and that the recipient will be financially distressed by the implementation of BMPs without a grant.
(b) The Commission may limit individual grant awards to whatever amount it deems appropriate. The maximum amount of a grant may not exceed those maximum grant limits established by the Commission. An agricultural operation that has received or is approved to receive financial assistance under any local, State, Federal or other financial assistance program may also be eligible for grants under the Nutrient Management Plan Implementation Grant Program up to the grant limit established by the Commission in grants from those combined sources and the Nutrient Management Plan Implementation Grant Program.
(c) A grant will be made subject to the terms and conditions the Commission establishes.
§ 83.231. Funding limitations.
(a) Total funding limits. Total assistance provided under loans, grants and loan guarantees for the implementation of a single plan may not exceed those funding limits established by the Commission.
(b) Partial funding. The Commission reserves the right to provide funding for only a portion of the total costs of the project or only a portion of the amount requested in a financial assistance application.
(c) Least cost alternative. Financial assistance provided may not exceed that amount necessary for the least-cost alternative for each BMP included.
(d) Limitation.
(1) Financial assistance will not be made available that might jeopardize or compromise the fund.
(2) Financial assistance will not be available for refinancing.
(3) Financial assistance will not be available for BMPs if construction is initiated prior to submission of an application for financial assistance, unless a letter of no prejudice has been issued by the Commission as provided in subsection (e).
(e) Letters of no prejudice. Exceptions to the general prohibition against initiation of construction prior to consideration by the Commission may be made when circumstances require immediate plan implementation to proceed before an application for financial assistance can be submitted to the Commission. Circumstances that would require immediate plan implementation and therefore appropriate for consideration by the Commission for a letter of no prejudice, must relate to acute failures or malfunctions of practices where immediate implementation is necessary to address significant environmental degradation. In this case, a potential applicant may apply to the Commission for a letter of no prejudice wherein the Commission agrees to consider a future application for financial assistance without limitation or prejudice even if project construction has begun at the time of the future application for financial assistance. The application for a letter of no prejudice must set forth, in detail, the exact reason or reasons a letter of no prejudice is necessary and should be granted. The application for and approval of a letter of no prejudice must occur prior to the start of project construction. If the Commission issues a letter of no prejudice, project construction can begin without jeopardizing or benefiting a future application.
§ 83.232. Implementation and reporting.
(a) The Commission will develop financial assistance documents which will define the terms and conditions under which the financial assistance is offered and specify other documents determined to be necessary by the Commission.
(b) Unless otherwise approved by the Commission, the recipient of financial assistance under this subchapter shall begin construction of the project, in accordance with its approved application within 9 months of the Commission sending notice of approval of a grant or loan application. If the applicant does not begin implementation within the specified time period, does not continue work without unreasonable interruption or does not complete the project within the specified time period in the grant agreement, the financial assistance may be withdrawn by the Commission.
(c) Design and construction of BMPs must conform to the standards found in the Pennsylvania Technical Guide. The applicant may not significantly deviate from the scope, design or time schedule for a project unless prior written approval is given by the Commission or delegated agent. The term ''scope,'' as used in this subsection, means the extent of project activities determined by the Commission to be eligible for financial assistance.
(1) A request for significant changes in scope shall be submitted in writing to the Commission for approval. When changes in scope require a plan amendment under the criteria of § 83.371 (relating to plan amendments), the applicant shall provide a copy of the approved plan amendment.
(2) Funding eligibility for a change in scope will be based on the criteria described in § 83.223 (relating to financial assistance eligibility criteria). Consent of the Commission to a change in scope will not be deemed to increase the amount of financial assistance provided without the express approval of the Commission. Funding for changes in the scope of an assistance project will be approved only in the following circumstances:
(i) The change in scope is a result of new or revised requirements, Federal legislation, or a Federal regulation thereunder, State legislation or State regulation thereunder, the act, this subchapter, The Clean Streams Law (35 P. S. §§ 691.1--691.1001) or regulations thereunder.
(ii) The change in scope is necessary to protect the structural or process integrity of the facilities.
(iii) Adverse conditions are identified during the construction of the facilities which could not have been foreseen by the design engineer prior to encountering the condition.
(iv) The change is necessary to relieve emergency conditions occurring during construction of the facilities.
(d) A request for a disbursal of financial assistance must be on forms approved by the Commission, include a statement certifying the project was completed as planned, and be submitted on a schedule approved by the Commission.
(e) The applicant shall maintain project progress and financial records to substantiate expenditures, as well as plan implementation records as outlined in §§ 83.341--83.344 (relating to recordkeeping and informational requirements).
(f) If the applicant fails to comply with this section, the Commission may withdraw the remaining funds allocated to the project, as well as take other action which it is legally entitled to take.
DELEGATION TO LOCAL AGENCIES § 83.241. Delegation to local agencies.
(a) The Commission may by written agreement delegate to a conservation district one or more of its administrative or enforcement authorities under the act.
(b) The delegation of administrative or enforcement authority may be made to a conservation district when the district demonstrates it has or will have an adequate program and sufficient resources to accept and implement the delegation.
(c) To the extent delegated by the agreement, the delegations may include the authority to enforce the act and this subchapter and to exercise other powers and duties otherwise vested in the Commission to implement the act.
(d) A delegation agreement will:
(1) Specify the powers and duties to be performed by the delegated district.
(2) Provide for the commitment of sufficient trained staff and resources to perform the powers and duties to be delegated.
(3) Require the delegated conservation district to maintain records of activities performed under the delegation.
(4) Provide for the monitoring and supervision by the Commission of performance by the delegated conservation district of the functions delegated under the agreement.
(e) When the Commission delegates one or more of its powers and duties to a delegated conservation district, the Commission will retain the concurrent power to administer and enforce the act and this subchapter.
COMPLIANCE PLANS § 83.251. Compliance plans.
An agricultural operation found to be in violation of The Clean Streams Law (35 P. S. §§ 691.1--691.1001) may be required to submit a plan that meets the requirements of the act and this subchapter within 3 months or notification thereof and to implement the plan in accordance with the schedule as approved.
NUTRIENT MANAGEMENT PLANS § 83.261. General.
NMP operations shall meet the plan requirements of §§ 83.251--83.381 according to the following:
(1) Operations defined as a CAO prior to October 1, 2006.
(i) For operations defined as CAOs operating as of October 1, 1997, a plan shall have been submitted prior to October 1, 1998.
(ii) For operations which were newly defined as a CAO due to expansion of operations prior to October 1, 2006, a plan shall have been submitted within 3 months of the change in operations which classified them as a CAO.
(iii) For new operations defined as CAOs and commencing before October 1, 2006, a plan shall have been submitted prior to commencement of operations.
(2) Operations defined as a CAO after October 1, 2006, that were not defined as CAOs prior to that date. An existing agricultural operation as of October 1, 2006, which did not meet the CAO definition prior to October 1, 2006, but which is defined as a CAO under this subchapter as amended, shall submit a plan by October 1, 2008.
(3) Operations that become defined as CAOs after October 1, 2006, due to expansion of an existing operation or loss of rented or leased land. Existing operations that make changes to their operations that result in becoming defined as CAOs for the first time after October 1, 2006, shall meet the following:
(i) An agricultural operation which becomes a CAO after October 1, 2006, due to loss of land suitable for manure application, shall submit a plan within 6 months after the date which the operation becomes a CAO.
(ii) An agricultural operation which will become a CAO due to expansion of operations by the addition of animals shall obtain approval of the plan prior to the expansion.
(4) New operations. A new operation which will commence after October 1, 2006, and which will be a CAO, shall obtain approval of a plan meeting the requirements of this subchapter prior to the commencement of the operation.
(5) Non-CAO operations. An agricultural operation other than a CAO may voluntarily submit a plan at any time after October 1, 1997.
(6) Revision of plans approved prior to October 1, 2006. Operations having an approved plan prior to October 1, 2006, shall comply with the following:
(i) CAOs and operations required to develop compliance plans under section 506(j) of the act (relating to nutrient management plans), shall submit an amended plan to address all of the requirements of this subchapter, including management of phosphorus and exported manure, under the 3-year review requirement of § 83.362 (relating to plan implementation), or by October 1, 2007, whichever is later.
(ii) VAOs shall submit an amended plan on the same schedule as CAOs in subparagraph (i) if they desire to maintain their status as a VAO.
(iii) VAOs that received funding under this subchapter shall implement the plan approved prior to October 1, 2006, and maintain the BMPs installed using that funding for 10 years following implementation of the BMP.
(7) The plan shall be submitted to the Commission or delegated conservation district by the operator who shall sign the plan.
(8) Qualifications. Plans shall be developed by nutrient management specialists certified in accordance with the Department of Agriculture's Nutrient Management Specialist Certification requirements in 7 Pa. Code §§ 130b.1--130b.51 (relating to nutrient management certification). The specialists shall certify, by signature, that the plans are in accordance with the act and this subchapter.
(9) Signature requirements. Plans shall be signed by the operator of the agricultural operation indicating concurrence with the information in the plan and acceptance of responsibilities under the plan. The following signature requirements apply:
(i) For sole proprietorships, the proprietor.
(ii) For partnerships, a general partner.
(iii) For corporations, a vice president, president or authorized representative. The plan must contain an attachment executed by the secretary of the corporation which states that the person signing on behalf of the corporation is authorized to do so.
(10) Operations that include rented or leased lands. For operations that include rented or leased lands, the operator shall sign a statement in the plan indicating the following:
(i) The owners of these lands have been provided notice that a nutrient management plan has been developed which included the owner's lands.
(ii) None of the owners indicated any objection to the application of nutrients to their own lands.
(11) Penalties. Operators and specialists who sign plans may be subject to penalties for any false information contained in the plans.
§ 83.262. Identification of CAOs.
(a) Procedure. To determine if a particular agricultural operation is a CAO, the number of AEUs per acre on the agricultural operation shall be calculated using the following procedure:
(1) The number of AEUs on the agricultural operation shall be calculated by using the following steps:
(i) Compute the animal weight for the agricultural operation by multiplying the average number of animals on the agricultural operation by the standard animal weight used by the livestock industry in this Commonwealth. The standard weights contained in guidance published by the Commission may be used to meet this requirement. Other animal weights may be used in place of those in the Commission guidance, if there is sufficient documentation to support their use. For those animal types not included in the Commission guidance, the average animal weight for the operation shall be used for this calculation, taking into account, if applicable, the range of animal weights throughout the time the animals are on the operation.
(ii) Annualize the average animal weight per day by multiplying the animal weight derived in subparagraph (i) by the number of days per year that the animals are on the operation, then divide by 365 days.
(iii) Compute the number of AEUs for the particular animal type by dividing the number derived in subparagraph (ii) by 1,000.
(iv) Compute the AEUs for the operation by adding together the number of AEUs for each type of animal to equal the total number of AEUs on the agricultural operation.
(v) Operations having less than eight AEUs are not classified as CAOs regardless of the animal density.
(2) Compute the number of AEUs per acre by dividing the total number of AEUs by the total number of acres of land suitable for the application of manure.
(i) For the sole purpose of determining whether an agricultural operation is a CAO, ''land suitable for the application of manure'' is land that meets all of the following:
(A) The land is under the management control of the operator.
(B) The land is cropland, hayland or pastureland.
(C) The land is an integral part of the agricultural operation, as demonstrated by title, rental or lease agreements, crop records or information on a form provided by the Commission.
(D) The land is or will be any of the following:
(I) Used for the application of manure generated by the agricultural operation.
(II) Included within the areas where manure may not be applied under § 83.293(c) (relating to determination of nutrient application rates).
(III) Included within the areas where manure may not be mechanically applied under section § 83.294(f) and (g) (relating to nutrient application procedures).
(ii) The term ''land suitable for application of manure'' does not include farmstead areas or forest land.
(b) Example of AEU per acre calculation. An operation has an average number of 10,000 medium broilers with an average weight of 2.3 pounds. During the year there are six flocks with a production period of 43 days per flock. This amounts to 258 days per year that the birds are on the operation. During the remaining down time, no manure is produced. The farmstead is 2 acres. There are 3 acres of woodlands and 7 acres of cropland. The following is the AEU per acre calculation for this operation:
Step 1. 10,000 med. broilers × 2.3 lb. avg. wt. = 23,000 lb. total weightStep 2. 23,000 lb. total weight × 258 days per year divided by 365 days = 16,257 lbs.Step 3. 16,257 lbs. divided by 1,000 lbs. per AEU = 16.25 AEUsStep 4. Total number of AEUs on the agricultural operation is 16.25Step 5. 16.25 AEUs divided by 7 acres of land suit- able = 2.32 AEUs per acre
CONTENT REQUIREMENTS FOR ALL PLANS § 83.272. Content of plans.
(a) Plans developed for CAOs, VAOs and operations required to develop compliance plans under section 506(j) of the act (relating to nutrient management plans) must comply with §§ 83.261 and 83.271--83.381.
(b) A plan must follow the standardized plan format provided by the Commission, unless otherwise approved by the Commission.
(c) The operator shall be involved in the development of the plan.
(d) The BMPs listed in the plan must be consistent with the management practices listed in other relevant plans, such as the agricultural erosion and sediment control plan developed for the operation, unless otherwise approved by the Commission or delegated conservation district.
(e) The only nutrient elements of concern to be addressed by BMPs in the plan, based on their potential to impact the quality of surface water or groundwater, are nitrogen and phosphorus. Unless the context clearly indicates otherwise, ''nutrients'' as used in this subchapter means nitrogen and phosphorus.
(f) The plan must list potassium crop needs, and potassium application rates, from all nutrient sources, to ensure that adequate soil fertility levels are addressed to meet crop production goals.
PLAN SUMMARY INFORMATION § 83.281. Identification of agricultural operations and acreage.
(a) Agricultural operation identification sheet. The plan must include an agricultural operation identification sheet which includes the following information:
(1) The operator name, address and telephone number.
(2) A brief description of the operation including:
(i) Animal types and numbers included on the operation.
(ii) The crop rotation planned to be used on the operation.
(iii) The dimensions, capacity and freeboard of any existing manure storage facilities on the operation.
(3) The signatures and documentation as required by § 83.261 (relating to general).
(4) The counties where land included in the plan is located.
(5) The watersheds in which the land included in the plan is located. The existence of any special protection waters, as identified in Chapter 93 (relating to water quality standards), shall also be noted.
(6) The total acreage of the agricultural operation included in the plan. This acreage includes:
(i) Lands located at or adjacent to the animal facility, which are owned by the operator of the facility.
(ii) Other owned, rented or leased lands, under the management control of the operator of the facility, that are used for the application, treatment or storage of manure generated at the facility. The plan must include the names and addresses of owners of the rented and leased lands.
(7) The total acreage of land of the agricultural operation on which nutrients shall be applied. The total acreage shall be separated into acres of owned land and acres of rented or leased land.
(8) The total number of AEUs on the operation, and the number of AEUs per acre on the agricultural operation.
(9) The name, nutrient management certification program identification number and signature of the nutrient management specialist that prepared the plan and the date of plan preparation.
(b) Maps and aerial photographs. The plan must include a topographic map drawn to scale identifying the lands included in the agricultural operation, including the land described in subsection (a)(6), and must also contain maps or aerial photographs of sufficient scale which clearly identify:
(1) The location and boundaries of the agricultural operation.
(2) Individual field boundaries under the plan.
(3) Field number and acreage of each field.
(4) The identification of all soil types and slopes on the agricultural operation. An NRCS soil survey map with the soil identification legend will be sufficient to satisfy this requirement. These soil survey maps may be available at the county NRCS office or conservation district office.
(5) The location of areas where manure application is restricted under § 83.294(f) and (g) (relating to nutrient application procedures).
(6) The location of proposed or existing structural BMPs, including manure storage facilities, on the operation.
(7) The location of proposed or existing emergency manure stacking areas or in-field stacking locations.
(8) The names of the roads adjacent to or within the agricultural operation.
(c) Phosphorus. The plan must include an appendix containing information and calculations used to comply with § 83.293(c) (relating to determination of nutrient application rates). If the Phosphorus Index is used, the information must include the completed Phosphorus Index spreadsheet or other similar information summary which lists the individual source and transport factor values, as appropriate, and the final Phosphorus Index result, for each individual area evaluated on the operation, as developed under the Phosphorus Index.
(d) Agreements with importers and brokers. The plan must include an appendix containing signed exporter/importer and exporter/broker agreements, and nutrient balance sheets and associated maps, for operations where these documents are required under this subchapter.
(e) Soil test results. The plan must include an appendix containing a summary of the results of all soil test analyses performed on the operation. The summary must meet the requirements of § 83.292(e)(3) (relating to determination of nutrients needed for crop production).
§ 83.282. Summary of plan.
(a) The plan must contain a summary that includes:
(1) A manure summary table listing:
(i) The total amount of manure planned to be generated on the operation annually.
(ii) The total amount of manure planned to be used on the operation annually.
(iii) The total amount of manure planned to be exported from the operation annually.
(2) A nutrient application summary documenting the planned nutrient applications for each crop management unit listing:
(i) Acres.
(ii) Expected yield.
(iii) Nutrients applied as starter chemical fertilizer.
(iv) Planned manure application period.
(v) Planned manure application rate and type of manure to be applied.
(vi) Planned manure incorporation time.
(vii) Rate of other organic nutrient sources planned to be applied.
(viii) Other nutrients applied through chemical fertilizer.
(ix) Other comments or notes.
(3) General procedures and provisions for the utilization or proper disposal of excess manure.
(b) The summary must include the following information on planned BMPs:
(1) Planned manure management and storage practices, stormwater runoff control practices and other appropriate BMPs necessary to protect the quality of surface water and groundwater.
(2) The schedule for implementation of the planned BMPs.
(3) The locations of planned BMPs on the agricultural operation.
NUTRIENT APPLICATION § 83.291. Determination of available nutrients.
(a) The plan must address each type of nutrient source generated or planned to be used on the agricultural operation, including: manure, biosolids, compost, commercial fertilizers and other nutrient sources. Nitrogen and phosphorus are the only nutrient elements of concern to be addressed by BMPs in the plan.
(b) The plan must list potassium crop needs, and potassium application rates, from all nutrient sources, to ensure that adequate soil fertility levels are addressed to meet crop production goals.
(c) The amount and nutrient content of each manure group generated on the agricultural operation shall be documented in the plan as follows:
(1) List the average number of animals for each manure group, on the agricultural operation.
(2) List the amount of manure generated and when it is available for land application on the agricultural operation or for other planned uses.
(i) If actual manure production records are available for the operation, these records shall be used for determining the manure produced on the operation.
(ii) If actual records of manure production do not exist for the operation, the amount of manure produced shall be calculated based on the average number of animal units on the agricultural operation, and the storage capacity of manure storage facilities, if present. The plan must include the calculations or variables used for determining the amount of manure produced on the operation.
(3) Test the nutrient content of manure as follows:
(i) Analytical manure testing results shall be used in the development of the plan. These manure tests must include an analysis of the percent solids, total nitrogen (as N), ammonium nitrogen (as NH4-N), total phosphate (as P2O5) and total potash (as K2O), for each manure group generated on the operation, and these analytical results shall be recorded in the plan.
(ii) These manure analyses shall be performed using manure sampling and chemical analysis methods which accurately represent the contents of the manure. Methods described in the Pennsylvania Agronomy Guide may be used to meet this requirement. Other methods shall be approved by the Commission.
(iii) For newly proposed operations, and for manure groups on existing operations where sampling and analysis are not possible prior to initial plan development, the following applies:
(A) The plan must use either standard book values, or analytical results from a similar facility as approved by the Commission or delegated conservation district.
(B) Standard book values contained in the Pennsylvania Agronomy Guide may be used to meet this requirement. Other values shall be approved by the Commission.
(C) A similar facility is one that uses similar animal housing, animal groups, feeding practices and wastewater management.
(D) The nutrient content of the manure, as determined in clauses (A)--(C), shall be recorded in the plan.
(E) Samples and chemical analysis of the manure generated on the operation shall be obtained within 1 year of implementation of the approved plan, and the requirements of § 83.371 (relating to plan amendments) shall be followed as applicable.
(iv) The nutrient content of manure deposited on pastures by grazing animals shall be determined using the methods contained in subparagraph (vi).
(v) After approval of the initial plan, manure tests are required to be taken annually for each manure group generated on the operation.
(vi) The testing described in this subsection will not be required for manure groups associated with less than five AEUs of livestock or poultry at an operation. For these small quantity manure groups, the nutrient content of the manure may be determined using standard book values which represent the contents of the manure for the operation. Standard book values contained in the Pennsylvania Agronomy Guide may be used to meet this requirement. Other values shall be approved by the Commission or delegated conservation district.
(vii) Testing of manure groups may be consolidated when two or more manure groups on the same operation are produced by the same animal type and are managed in a similar manner.
(d) The nitrogen available from manure shall be based on availability factors which accurately represent the characteristics of the manure. Factors described in the Pennsylvania Agronomy Guide may be used to meet this requirement. Other methods shall be approved by the Commission. The plan must include the amount of nitrogen available in the manure, and the planned manure incorporation time used to determine the nitrogen available.
(e) The residual nitrogen from legume crops and previous applications of manure shall be determined using values which represent the common nitrogen residuals from the past crops and manure applications at the operation. Standard book values contained in the Pennsylvania Agronomy Guide may be used to meet this requirement. Other values shall be approved by the Commission. The values shall be recorded in the plan and credited when determining nutrient application rates.
§ 83.292. Determination of nutrients needed for crop production.
(a) The plan must include the acreage and realistic expected crop yields for each crop management unit.
(b) For the development of the initial plan, expected crop yields may not exceed those considered realistic for the soil type and climatic conditions, as set by the operator and the specialist, and approved by the Commission or delegated conservation district. If actual yield records are available during the development of the initial plan, the expected crop yields shall be based on these records.
(c) If after the first 3 years of implementing the plan, the yields do not average at least 80% of the planned expected yield, the plan shall be amended to be consistent with the documented yield levels unless sufficient justification for the use of the higher yields is approved by the Commission or delegated conservation district. The amendment shall be submitted as required under § 83.371 (relating to plan amendments).
(d) When determining expected crop yields for plan amendments, expected crop yields shall be based on documented yield levels achieved for the operation. Expected crop yields higher than historically achieved may be used if sufficient justification is approved by the Commission or delegated conservation district for the use of the higher yields.
(e) When developing the initial plan, soil tests shall be conducted for each crop management unit on the operation, to determine the level of phosphorus (as P), potassium (as K), and soil pH, as follows:
(1) The soil test procedures used must provide accurate test results. The procedures recommended by the Pennsylvania State University and published in Recommended Soil Testing Procedures for the Northeastern United States, Bulletin #493, published by the University of Delaware, may be used to meet this requirement. Other procedures shall be approved by the Commission.
(2) Soil tests conducted within the previous 3 years prior to submitting the initial plan are acceptable.
(3) The plan must include an appendix containing a summary of the results of the soil test analyses for each crop management unit showing the following:
(i) Soil test levels for phosphorus and potassium as reported by the laboratory.
(ii) Soil test levels for phosphorus (as P) in parts-per-million (PPM) and potassium (as K) in PPM, after conversion from the test results from the laboratory, as needed.
(iii) Soil test levels for pH.
(iv) The date of the soil tests and the name of the lab performing the tests.
(4) After the approval of the initial plan, soil tests are required for each crop management unit at least every 3 years from the date of the last test.
(f) Based on the soil tests in subsection (e), the plan must include recommendations for the amount of nitrogen (as total N), phosphorus (as P2O5) and potassium (as K2O) necessary for realistic expected crop yields.
(g) If necessary based on the type of crops planned, the recommendations from the initial soil test shall be adjusted to determine the appropriate amount of nutrients necessary to achieve realistic expected crop yields. This adjustment may be satisfied by using the methodologies in the Soil Test Recommendations Handbook for Agronomic Crops published by the Pennsylvania State University Agricultural Analytical Services Laboratory. Other methodologies for this adjustment shall be approved by the Commission.
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