The Ohio Soil and Water Conservation Commission wants to see rules in place for distressed watersheds before it decides on designating watersheds as distressed. At its quarterly meeting Nov. 1, the commission voted 4 to 3 in favor of tabling consideration of an executive order from Gov. John Kasich.

The executive order, issued in July, asked that eight northwest Ohio watersheds be designated as distressed and called for development of a new rules package for farms in distressed watersheds. For the time being, farmers in those watersheds don’t have any new rules to follow, but new rules are being developed and the issue will come before the commission again in the coming year.

When Kasich first issued the executive order, the Ohio Soil and Water Conservation Commission wasn’t willing to approve the plan without thinking it through. Instead, the commission voted at its July meeting to defer the decision and appointed a task force to study the issue.

That task force met three times and thoroughly discussed the criteria for declaring a watershed as distressed, as well as the implications of a distressed watershed designation for farmers, the additional rules farmers might be required to follow, and the additional resources that would be needed by soil and water conservation districts in the watersheds.

However, at the end of the third meeting Oct. 25, Tim Derickson, the interim director of the Ohio Department of Agriculture, told task force members their focus should be on the condition of the water flowing to the lake from those watersheds. “This is about watersheds in distress,” he said.  Other discussions, he said, were “beyond what this group is challenged to do.”

Executive strategy
The executive order is part of the governor’s strategy to address water quality problems in Lake Erie, particularly the high phosphorus levels that contribute to algal blooms in the western basin. In 2015, Ohio, along with Michigan and the province of Ontario, committed to reducing the phosphorus entering the western Lake Erie basin by 40% by 2025.

Earlier this year the Ohio Environmental Protection Agency designated the open waters of Lake Erie’s western basin as impaired, and OEPA used water quality monitoring data to identify specific watersheds in the Maumee River basin that exceed their total phosphorus load targets by two or three times.

The Ohio Legislature passed a bill in July to provide more funding for phosphorus reduction programs, water quality research, and soil and water conservation district staffing. The governor signed that bill and then pushed for more action with the executive order requesting that certain watersheds be designated as distressed.

In anticipation that the distressed watershed designation would eventually be approved, the Ohio Department of Agriculture, Department of Natural Resources and Environmental Protection Agency have been working on a rules package and it is expected to be completed soon.

However, many in the ag community were concerned about designating watersheds as distressed without knowing what those rules would be. One of the task force members, Nikki Hawk, who is president of the Ohio Association of Soil and Water Conservation District Employees and the district administrator for the Mercer SWCD, explained her viewpoint during the last task force meeting. “Until the rulemaking process has made it all the way through, I don’t think it would be appropriate to make any designation.”

Task force member Jessica D’Ambrosio, the western Lake Erie project director for The Nature Conservancy, also expressed concern about approving the designation before the rules are established.

The Nature Conservancy is an organization that follows the science, and the science does show that some watersheds are contributing more than others to phosphorus levels in Lake Erie, she said. To be effective in reducing phosphorus levels, rules need to allow farmers to use a variety of practices suited to their farms, she said. “We really want to be able to see if the rules are flexible enough,” she explained.

Elizabeth Harsh, a task force member and executive director of the Ohio Cattlemen’s Association, said agriculture is willing to do more to keep phosphorus applied on farms from reaching the lake, but she questioned the effectiveness of the governor’s approach. “We also have very serious concerns about the resources, or lack thereof, available to implement this.”

On the other hand, Jeff Reuter, who is another member of the task force and the former director of the Ohio Sea Grant program, favored the distressed designation. It is an important step in addressing problems with the elevated phosphorus levels that contribute to algal blooms in Lake Erie, he said. “There is no other place in our region that is contributing the amount of phosphorus that’s coming from these eight watersheds,” he said.

During the commission meeting Nov. 1, Tim Derickson, interim director of the Ohio Department of Agriculture, stressed that the department would use discretion in enforcing rules for farms in distressed watersheds. “Our passion is to promote and grow agriculture, not put our producers out of business. While this discretion will be determined on a farm-by-farm basis, we will continue our efforts to educate before enforcement.”

Kris Swartz, a non-voting member of the commission representing SWCDs, said the soil and water conservation districts are in the business of working with farmers to protect resources, but that it was too soon to designate watersheds as distressed. “We know there’s a problem with the water,” he said. “But without rules, we don’t know if it’s the most expedient way to reach the goal.”

Commission member and task force chairman Fred Cash said the task force considered input from all sides. Although there was disagreement about designating watersheds as distressed, everyone agreed on the need to improve water quality, he said. “We all are after the same thing, and we all know how important it is.” He urged the commission to approve the distressed designations and voted against deferring the decision along with commission members Kate Bartter and Bethany Gibson. Voting in favor of deferring the decision were Tom Price, Bill Knape, Etta Reed and Kent Stuckey.

During public comments following the vote, Dave Spangler, representing the Lake Erie Charter Boat Association, expressed his disappointment over the delay. “Now we’re going to drag this out into next year.” The discussions regarding watershed rules focused on paperwork rather than on implementing changes to protect the lake, he explained. “There are fixes out there, but we’ve got to get going.”

Proposed rules
Ohio first adopted rules for watersheds in distress in 2010 to address water quality problems in the Grand Lake St. Marys watershed. That watershed was designated as distressed in 2011 and the rules required farmers in that watershed to complete and follow nutrient management plans approved by the Ohio Department of Agriculture.

They are also subject to enforcement of the nutrient application standards in the USDA Natural Resources Conservation Services Field Office Technical Guide (Standard 590) even if there is no discharge. These standards require minimum setback distances for manure application and limit application rates for manure and nutrients based on field conditions. The distressed watershed rules include manure storage requirements and limitations on manure application in the winter and prior to predicted precipitation, as well.

The rules enacted for the Grand Lake St. Marys watershed focused on manure because animal agriculture predominates in that area. However, crop production is more predominate in the eight Lake Erie watersheds. The Ohio Department of Agriculture is in the process of developing a distressed watershed rules package designed to fit a broader range of farming practices and conditions.

Those rules are currently moving through the Ohio Legislature’s Joint Committee on Agency Rule Review. Once the rules complete that process, the Soil and Water Conservation Commission will have a chance to review them before they are enacted. Even though the rules process is unlikely to be completed before the governor leaves office in mid- January, his executive order will remain in effect unless it is rescinded by the next governor.

The proposed changes to the distressed watershed rules include:

• A delay in non-discharge enforcement of 590 standards to give farms time to complete nutrient management plans.

• An update of winter manure regulations to align with Senate Bill 1, enacted in 2015. Instead of prohibiting winter manure application, Senate Bill 1 bars application on frozen, snow-covered or saturated ground without certain precautions.

• The use of spot checks to ensure compliance with the nutrient management plan requirement. To make it possible for the ODA to oversee the large number of producers in the Lake Erie watershed, producers would be required to attest to the completion of their nutrient management plan rather than submitting them to the ODA for approval.

The governor’s executive order includes all or part of these watersheds: Platter Creek, Little Flat Rock Creek, Little Auglaize River, Eagle Creek, Auglaize River, Blanchard River, St. Marys River and Ottawa River.