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Gov. Kasich signs order to toughen control of fertilizer pollution

By Jim Provance • Jul 12, 2018 at 12:00 PM

COLUMBUS — Frustrated by lawmakers’ refusal to consider a bill to get tougher on sources of agricultural pollution feeding Lake Erie’s chronic toxic algae problem, Gov. John Kasich on Wednesday took matters into his own hands with an executive order.

“This is just requiring farmers to figure out a way to manage their land in a more effective and environmentally friendly way,” the Republican governor said. “I believe that farmers want to do that.”

Under the order, his administration will ask the Ohio Soil and Water Conservation Commission at its July 19 meeting to designate eight watersheds or portions of watersheds with high phosphorous levels within the Maumee River Basin as “distressed.”

That would trigger the writing of rules affecting all agricultural nutrient sources, including such things as storage, handling, and application of manure; erosion and sediment control from the land; and other agricultural practices. Civil penalties could apply for violations.

David Daniels, director of the Department of Agriculture, estimated that the affected watersheds would represent more than 40 percent of the watershed of Lake Erie’s western basin in Ohio.

If the commission agrees with the designations, a lengthy rule-writing and approval process would be triggered. Daniels estimated that the system might not be in place until the 2020 crop season.

The order expects requests for distressed status for the Platter Creek, Little Flat Rock Creek, Little Auglaize River, Eagle Creek, Auglaize River, Blanchard River, St. Mary’s River, and Ottawa River watersheds, which are all part of the Maumee River Basin. Distressed status would be lifted only after the Department of Agriculture confirms the sustained recovery and improvement in the watershed.

Kasich also signed Senate Bill 299, sponsored by Sens. Randy Gardner (R-Bowling Green) and Sean O’Brien (D-Cortland), that sets aside $36 million to help address the algae problem, including some money to help farmers buy equipment and take other steps to reduce fertilizer runoff.

The Ohio Farm Bureau Federation praised the signing of Senate Bill 299 but criticized the process that led to the executive order.

“Agriculture was pretty much shut out of the opportunity to weigh in once the administration decided to go this executive order route,” bureau spokesman Joe Cornely said. “It’s hard to reconcile this process with the way Kasich has governed for nearly eight years.”

He said the amount of money earmarked out of the total $36 million in Senate Bill 299 strictly for farmers would not be nearly enough to address what he said would be 7,000 farms totaling 2 million acres.

Unlike a law passed by the legislature, an executive order survives only as long as the governor wills it.

Although Kasich insisted he believes Ohio has made progress, the administration has made it clear it doesn’t believe current voluntary efforts by farmers to reduce the amount of fertilizers washing off their land into the streams and rivers will allow the state to meet its commitment with Michigan and Ontario to reduce phosphorous runoff by 40 percent by 2025.

It has struggled to find a lawmaker willing to introduce a bill to change the definition of “agricultural pollution” to specifically include fertilizers. The administration also wants to expand statewide the maximum phosphorous discharge limit already applied to many wastewater treatment plants on the lake, something not tackled as part of the governor’s executive order.

The Ohio Environmental Council praised the order as a good step — with a lot more to do.

“The watersheds that are included in this executive order have a total phosphorous level of two to three times higher than the phosphorous reduction goals established in the Great Lakes Water Quality Agreement,” said Heather Taylor-Miesle, the council’s executive director.

Cornely disputed the suggestion that Ohio’s approach to date has relied on voluntary actions by farmers.

“There is no state as highly regulated as Ohio in terms of farming,” he said. “The narrative that says agriculture is unregulated is absolutely false. We also think there is room for voluntary efforts to be done in addition to what farmers have done for many years, spending their own money on things that are not required and are doing so voluntarily.”

Senate Bill 299 also provides funding to invest in research and monitoring of phosphorous levels, harmful algal growth, and toxicity levels; alternative uses for dredged sediment; and soil and conservation districts in the lake’s western basin.

Kasich remains opposed to the idea of borrowing $1 billion — $100 million a year over 10 years — to invest in improvements to wastewater and water treatment plants, water quality research, and better water resource management practices.

Under pressure by litigation, the Ohio Environmental Protection Agency in March designated Lake Erie to be “impaired” under federal law. The question has been what will happen next, and farmers, the environmental community, lawmakers, and the administration haven’t been able to reach agreement.

Mike Ferner, coordinator for Advocates for a Clean Lake Erie, a group that sued in federal government to force the impairment designation, said the order will not have the effect the governor said he is seeking.

“Kasich’s statements today proved that he is doing all in his power to deflect attention away from the Confined Animal Feeding Operations [CAFOs] that annually dump hundreds of millions of gallons of untreated feces, urine, and antibiotic-resistant bacteria on fields draining into Lake Erie,” he said.

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Farm Bureau critical of Kasich executive order

EDITOR’S NOTE: The following press release was provided by the Ohio Farm Bureau on Wednesday.

Gov. John Kasich abandoned one of his most basic principles by announcing unilateral regulation of farming practices in an attempt to improve Lake Erie water quality. With no conversation with Ohio's agriculture community, the Kasich executive order would include regulation of over 2 million acres in northwest Ohio.

Today’s executive order ignores the transparent and inclusive approach to the regulatory process Kasich promised with his “Common Sense Initiative.” Because the agricultural community was not included in the process, farmers are left with frustration, questions and uncertainty on both the process and implications of this order.

“We can’t even react to the specific regulations he’s proposing; we haven’t seen them,” said Adam Sharp, executive vice president of Ohio Farm Bureau.

Kasich’s order has no realistic recognition of the time nor the financial or educational resources required for farmers to comply. Regulations created under the order may conflict with multiple layers of existing regulation. There are also significant concerns about the science applied, the processes through which the order will be enacted and the specific authorities of the multiple state agencies charged with carrying out the order.

Sharp said Farm Bureau will take the rare step of filing a formal public records request in order to gain clarity on some of these issues.

“We’re also curious why the order deals with only agriculture and not other pieces of the water puzzle, especially since the administration has prioritized other water quality initiatives instead of farm conservation programs,” Sharp said.

The Kasich administration said it has invested more than $3 billion to improve Lake Erie water quality. But an examination of the expenditures, reported by Cleveland Public Broadcasting station WCPN, found that only 1 percent of that money was used to address agriculture’s portion of the water quality challenge.

“If we weren’t a priority for state resources, why are we a priority for state regulation?” Sharp asked.

Farm Bureau supports the actions of the Ohio House and Senate in passage of Clean Lake 2020, which became law today. It provides funding of up to $20 million in a targeted phosphorus reduction fund, $3.5 million to support soil testing and the development of nutrient management plans, among other provisions, recognizing the complex needs of farmers in the process.

Working with the legislature — and the administration — is always the preferred approach to address agricultural concerns.


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Ohio corn, soybean and wheat farmers condemn unilateral regulatory action by Kasich administration

EDITOR’S NOTE: The following press release was provided by the Ohio Corn & Wheat Growers Association on Wednesday.

The Ohio Corn & Wheat Growers Association (OCWGA) and the Ohio Soybean Association (OSA) listened to today’s press conference by Governor John Kasich with great concern. Agriculture groups were not consulted on his plans nor were we asked to participate in today’s announcement.

After failing to convince even a single member of the Ohio General Assembly to support its legislative proposal to implement burdensome and unnecessary fertilizer requirements, the administration announced today it would ignore the will of the legislature and take unprecedented power and control over how farmers farm.

“Today, Governor Kasich and administration officials made it seem that if farmers do a nutrient management plan for their farm, Lake Erie will never see an algal bloom again. That is wrong,” said OCWGA Executive Director Tadd Nicholson. “What is true is that farmers have adopted best management practices including nutrient management plans, have invested millions of dollars in research and education, and even supported reasonable regulations to address water quality.”

In addition to the inappropriate use of executive action on this issue, the order increases the bureaucratic red tape and complicates the process of addressing water quality concerns in the Western Lake Erie Basin. It is also not clear that the most up-to-date, comprehensive science is being used to determine which watersheds are being targeted.

OCWGA and OSA are strong supporters of Ohio Senate Bill 299 and Ohio House Bill 643, bipartisan legislation signed today that will invest significant new resources to protect water quality throughout the state. Initially, the administration unsuccessfully lobbied the sponsors of those bills to include onerous regulatory measures in their respective proposals. After being rebuffed by the legislature, the administration announced it would forgo the checks and balances provided by the legislature and pursue an executive order.

“Although Gov. Kasich has worked productively with our farmers in the past, the administration is now acting without our input,” said OSA Executive Director Kirk Merritt. “Farmers are willing to do what needs to be done to solve this problem, but now we’re not even being invited to the table.”

In recent years, Ohio farmers have implemented new best management practices on their fields to protect water quality while also funding research and education initiatives such as the 4R Nutrient Stewardship Certification Program, edge-of-field testing and an update of the tri-state fertility guide.

For more information about what Ohio farmers are doing, visit formyfarm.com.

EDITOR’S NOTE: The Norwalk Reflector contributed to this story.


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