HB1830: Resource management plans; effect of implementation, exclusions.


HOUSE BILL NO. 1830
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee on Agriculture, Conservation and Natural Resources
on February 21, 2011)
(Patron Prior to Substitute--Delegate Scott, E.T.)
A BILL to amend the Code of Virginia by adding in Chapter 1 of Title 10.1 an article numbered 1.1, consisting of sections numbered 10.1-104.5, 10.1-104.6, and 10.1-104.7, relating to agriculture; resource management plans.

Be it enacted by the General Assembly of Virginia:

1.  That the Code of Virginia is amended by adding in Chapter 1 of Title 10.1 an article numbered 1.1, consisting of sections numbered 10.1-104.5, 10.1-104.6, and 10.1-104.7, as follows:

Article 1.1.
Resource Management Plans.

§ 10.1-104.5. Resource management plans; effect of implementation; exclusions.

A. Notwithstanding any other provision of law, agricultural landowners or operators who fully implement and maintain the applicable components of their resource management plan, in accordance with the criteria for such plans set out in § 10.1-104.6 and any regulations adopted thereunder, shall be deemed to be in full compliance with (i) any load allocation contained in a total maximum daily load (TMDL) established under § 303(d) of the federal Clean Water Act addressing benthic, bacteria, nutrient, or sediment impairments; (ii) any requirements of the Virginia Chesapeake Bay TMDL Watershed Implementation Plan; and (iii) applicable state water quality requirements for nutrients and sediment.

B. The presumption of full compliance provided in subsection A shall not prevent or preclude enforcement of provisions pursuant to (i) a resource management plan or a nutrient management plan otherwise required by law for such operation, (ii) a Virginia Pollutant Discharge Elimination System permit, (iii) a Virginia Pollution Abatement permit, or (iv) requirements of the Chesapeake Bay Preservation Act (§ 10.1-2100 et seq.).

C. Landowners or operators who implement and maintain a resource management plan in accordance with this article shall be eligible for matching grants for agricultural best management practices provided through the Virginia Agricultural Best Management Practices Cost-Share Program administered by the Department in accordance with program eligibility rules and requirements. Such landowners and operators may also be eligible for state tax credits in accordance with §§ 58.1-339.3 and 58.1-439.5.

D. Nothing in this article shall be construed to limit, modify, impair, or supersede the authority granted to the Commissioner of Agriculture and Consumer Services pursuant to Chapter 4 (§ 3.2-400et seq.) of Title 3.2.

E. Any personal information collected pursuant to this article shall be exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), except that the Director may release information that has been transformed into a statistical or aggregate form that does not allow identification of the persons who supplied, or are the subject of, particular information. This subsection shall not preclude the application of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) in all other instances of federal or state regulatory actions.

§ 10.1-104.6. Resource management plans; criteria.

A. The Soil and Water Conservation Board shall by regulation, and in consultation with the Department of Agriculture and Consumer Services and the Department of Environmental Quality, specify the criteria to be included in a resource management plan.

B. The regulations shall:

1. Be technically achievable and take into consideration the economic impact to the agricultural landowner or operator;

2. Include (i) determinations of persons qualified to develop resource management plans and to perform on-farm best management practice assessments; (ii) plan approval or review procedures if determined necessary; (iii) allowable implementation timelines and schedules; (iv) determinations of the effective life of the resource management plans taking into consideration a change in or a transfer of the ownership or operation of the agricultural land, a material change in the agricultural operations, issuance of a new or modified total maximum daily load (TMDL) implementation plan for the Chesapeake Bay or other local total maximum daily load water quality requirements, and a determination pursuant to Chapter 4 (§ 3.2-400 et seq.) of Title 3.2 that an agricultural activity on the land is creating or will create pollution; (v) factors that necessitate renewal or new plan development; and (vi) a means to determine full implementation and compliance with the plans including reporting and verification;

3. Provide for a process by which an on-farm assessment of all reportable best management practices currently in place, whether as part of a cost-share program or through voluntary implementation, shall be conducted to determine their adequacy in achieving needed on-farm nutrient, sediment, and bacteria reductions;

4. Include agricultural best management practices sufficient to implement the Virginia Chesapeake Bay TMDL Watershed Implementation Plan and other local total maximum daily load water quality requirements of the Commonwealth; and

5. Specify that the required components of each resource management plan shall be based upon an individual on-farm assessment. Such components shall comply with on-farm water quality objectives as set forth in subdivision B 4, including best management practices identified in this subdivision and any other best management practices approved by the Board or identified in the Chesapeake Bay Watershed Model or the Virginia Chesapeake Bay TMDL Watershed Implementation Plan.

a. For all cropland or specialty crops such components shall include the following, as needed and based upon an individual on-farm assessment:

(1) A nutrient management plan that meets the nutrient management specifications developed by the Department;

(2) A forest or grass buffer between cropland and perennial streams of sufficient width to meet water quality objectives and consistent with Natural Resources Conservation Service standards and specifications;

(3) A soil conservation plan that achieves a maximum soil loss rate of ?T,? as defined by the Natural Resources Conservation Service; and

(4) Cover crops meeting best management practice specifications as determined by the Natural Resources Conservation Service or the Virginia Agricultural Best Management Practices Cost-Share Program.

b. For all hayland, such components shall include the following, as needed and based upon an individual on-farm assessment:

(1) A nutrient management plan that meets the nutrient management specifications developed by the Department;

(2) A forest or grass buffer between cropland and perennial streams of sufficient width to meet water quality objectives and consistent with Natural Resources Conservation Service standards and specifications; and

(3) A soil conservation plan that achieves a maximum soil loss rate of ?T,? as defined by the Natural Resources Conservation Service.

c. For all pasture, such components shall include the following, as needed and based upon an individual on-farm assessment:

(1) A nutrient management plan that meets the nutrient management specifications developed by the Department;

(2) A system that limits or prevents livestock access to perennial streams; and

(3) A pasture management plan or soil conservation plan that achieves a maximum soil loss rate of ?T,? as defined by the Natural Resources Conservation Service.

§ 10.1-104.7. Regulations under this article.

Regulations adopted by the Board for the enforcement of this article shall be subject to the requirements set out in §§ 2.2-4007.03, 2.2-4007.04, 2.2-4007.05, and 2.2-4026 through 2.2-4030 of the Administrative Process Act (§ 2.2-4000 et seq.), and shall be published in the Virginia Register of Regulations. The Board shall convene a stakeholder group to assist in development of these regulations, with representation from agricultural and environmental interests as well as Soil and Water Conservation Districts. All other provisions of the Administrative Process Act shall not apply to the adoption of any regulation pursuant to this article. After the close of the 60-day comment period, the Board may adopt a final regulation, with or without changes. Such regulation shall become effective 15 days after publication in the Virginia Register of Regulations, unless the Board has withdrawn or suspended the regulation or a later date has been set by the Board. The Board shall also hold at least one public hearing on the proposed regulation during the 60-day comment period. The notice for such public hearing shall include the date, time, and place of the hearing.


HOUSE BILL NO. 1830
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee on Agriculture, Chesapeake and Natural Resources
on February 3, 2011)
(Patron Prior to Substitute--Delegate Scott, E.T.)
A BILL to amend the Code of Virginia by adding in Chapter 1 of Title 10.1 an article numbered 1.1, consisting of sections numbered 10.1-104.5, 10.1-104.6, and 10.1-104.7, relating to agriculture; resource management plans.

Be it enacted by the General Assembly of Virginia:

1.  That the Code of Virginia is amended by adding in Chapter 1 of Title 10.1 an article numbered  1.1, consisting of sections numbered  10.1-104.5, 10.1-104.6, and 10.1-104.7, as follows:

Article 1.1.

Resource Management Plans.

§ 10.1-104.5. Resource management plans; effect of implementation; exclusions.

A. Notwithstanding any other provision of law, agricultural landowners or operators who fully implement and maintain the applicable components of their resource management plan, in accordance with the criteria for such plans set out in § 10.1-104.6 and any regulations adopted thereunder, shall be deemed to be in full compliance with (i) any load allocation contained in a total maximum daily load (TMDL) established under § 303(d) of the federal Clean Water Act addressing benthic, bacteria, nutrient or sediment impairments, (ii) any requirements of the Virginia Chesapeake Bay TMDL Watershed Implementation Plan, and (iii) applicable state water quality requirements for nutrients and sediment.

B. The presumption of full compliance provided in subsection A shall not prevent or preclude enforcement of provisions pursuant to (i) a resource management plan or a nutrient management plan otherwise required by law for such operation, (ii) a Virginia Pollutant Discharge Elimination System permit, (iii) a Virginia Pollution Abatement permit, or (iv) requirements of the Chesapeake Bay Preservation Act (§ 10.1-2100 et seq.).

C. Landowners or operators who implement and maintain a resource management plan in accordance with this article shall be eligible for matching grants for agricultural best management practices provided through the Virginia Agricultural Best Management Practices Cost-Share Program administered by the Department in accordance with program eligibility rules and requirements. Such landowners and operators may also be eligible for state tax credits in accordance with §§ 58.1-339.3 and 58.1-439.5.

D. Nothing in this article shall be construed to limit, modify, impair, or supersede the authority granted to the Commissioner of Agriculture and Consumer Services pursuant to the Agricultural Stewardship Act (§ 3.2-400et seq.).

§ 10.1-104.6. Resource management plans; criteria.

A. The Soil and Water Conservation Board shall by regulation, and in consultation with the Department of Agriculture and Consumer Services and the Department of Environmental Quality, specify the criteria to be included in a resource management plan.

B. The regulations shall:

1. Be technically achievable and economically feasible;

2. Include (i) determination of persons qualified to develop resource management plans and to perform on-farm best management practice assessments; (ii) plan approval or review procedures if determined necessary; (iii) allowable implementation timelines and schedules; (iv) effective life of the resource management plans; (v) factors that necessitate renewal or new plan development; and (vi) a means to determine full implementation and compliance with the plans including reporting and verification;

3. Provide for a process by which an on-farm assessment of all reportable best management practices currently in place, whether as part of a cost-share program or through voluntary implementation, shall be conducted to determine their adequacy in achieving needed on-farm nutrient, sediment, and bacteria reductions;

4. Include agricultural best management practices sufficient to implement the Virginia Chesapeake Bay TMDL Watershed Implementation Plan and other local total maximum daily load water quality requirements of the Commonwealth;

5. Specify that the required components of each resource management plan shall be based upon an individual on-farm assessment. Such components shall comply with on-farm water quality objectives, including best management practices identified in this subdivision and any other best management practices approved by the Board or identified in the Chesapeake Bay Watershed Model or the Virginia Chesapeake Bay TMDL Watershed Implementation Plan.

a. For all cropland or specialty crops such components shall include the following, as needed and based upon an individual on-farm assessment:

(1) A nutrient management plan that meets the nutrient management specifications developed by the Department;

(2) A forest or grass buffer between cropland and perennial streams of sufficient width to meet water quality objectives and consistent with Natural Resources Conservation Service standards and specifications;

(3) A soil conservation plan that achieves a maximum soil loss rate of ?T,? as defined by the Natural Resources Conservation Service; and

(4) Cover crops meeting best management practice specifications as determined by the Natural Resources Conservation Service or the Virginia Agricultural Best Management Practices Cost-Share Program.

b. For all hayland, such components shall include the following, as needed and based upon an individual on-farm assessment:

(1) A nutrient management plan that meets the nutrient management specifications developed by the Department;

(2) A forest or grass buffer between cropland and perennial streams of sufficient width to meet water quality objectives and consistent with Natural Resources Conservation Service standards and specifications; and

(3) A soil conservation plan that achieves a maximum soil loss rate of ?T,? as defined by the Natural Resources Conservation Service.

c. For all pasture, such components shall include the following, as needed and based upon an individual on-farm assessment:

(1) A nutrient management plan that meets the nutrient management specifications developed by the Department;

(2) A system that limits or prevents livestock access to perennial streams; and

(3) A pasture management plan or soil conservation plan that achieves a maximum soil loss rate of ?T,? as defined by the Natural Resources Conservation Service.

§ 10.1-104.7. Regulations under this article.

Regulations adopted by the Board for the enforcement of this article shall be subject to the requirements set out in §§ 2.2-4007.03, 2.2-4007.04, and 2.2-4007.05 of the Administrative Process Act, and shall be published in the Virginia Register of Regulations. The Board shall convene a stakeholder group to assist in development of these regulations with representation from agricultural and environmental interests, as well as Soil and Water Conservation Districts.  All other provisions of the Administrative Process Act (§ 2.2-4000 et seq.) shall not apply to the adoption of any regulation pursuant to this article.  After the close of the 60-day comment period, the Board may adopt a final regulation, with or without changes.  Such regulation shall become effective 15 days after publication in the Virginia Register of Regulations, unless the Board has withdrawn or suspended the regulation, or a later date has been set by the Board.  The Board shall also hold at least one public hearing on the proposed regulation during the 60-day comment period. The notice for such public hearing shall include the date, time and place of the hearing.

HOUSE BILL NO. 1830
Offered January 12, 2011
Prefiled January 11, 2011
A BILL to amend the Code of Virginia by adding in Title 3.2 a chapter numbered 3.1, consisting of sections numbered 3.2-303 and 3.2-304, relating to agriculture; resource management plans.
Patron-- Scott, E.T.

Referred to Committee on Agriculture, Chesapeake and Natural Resources

Be it enacted by the General Assembly of Virginia:

1.  That the Code of Virginia is amended by adding in Title 3.2 a chapter numbered 3.1, consisting of sections numbered 3.2-303 and 3.2-304, as follows:

CHAPTER 3.1.
RESOURCE MANAGEMENT PLANS.

§ 3.2-303. Resource management plans; effect of implementation; exclusions.

A. Notwithstanding any other provision of law, agricultural landowners who implement and maintain a resource management plan in accordance with § 3.2-304 shall be deemed to be in full compliance with applicable state water quality requirements including, but not limited to, the State Water Control Law (§ 62.1-44.2 et seq.) and any regulations adopted thereunder.

B. The presumption and immunity provided in subsection A shall not extend to those operations (i) required to obtain a Virginia Pollutant Discharge Elimination System Permit, (ii) required to obtain a Virginia Pollution Abatement Permit, and (iii) otherwise required by law to implement a resource management or nutrient management plan.

C. Landowners who implement and maintain a resource management plan in accordance with § 3.2-304 shall be eligible for matching grants for agricultural best management practices provided through the Virginia Agricultural Best Management Practices Cost-Share Program administered by the Department of Conservation and Recreation.

§ 3.2-304. Resource management plans; criteria.

The Board shall, by regulation and with the assistance of the Department of Conservation and Recreation, determine the criteria necessary for the development of and inclusion in a resource management plan for such plan to provide for the presumption and immunity set forth in § 3.2-303. The regulations shall be both technically achievable and economically feasible. The regulations shall:

1. For all cropland or specialty crops, include the following components as needed and based upon an individual on-farm assessment to determine which practices will result in appropriate nutrient and sediment reductions:

a. A nutrient management plan that meets the nutrient management specifications developed by the Department of Conservation and Recreation;

b. A forest or grass buffer of appropriate width to sufficiently limit sedimentation and nutrient pollution between cropland and perennial streams;

c. A soil conservation plan that achieves a maximum soil loss rate of ?T,? as defined by the Natural Resources Conservation Service;

d. Cover crops meeting best management practice specifications as determined by the Natural Resources Conservation Service;

e. An assessment of all best management practices currently in place, whether as part of a cost-share program or through voluntary implementation;

f. Such other best management practices as may be developed and adopted by the Board; and

g. An implementation schedule and plan.

2. For all hayland, include the following components as needed and based upon an individual on-farm assessment to determine which practices will result in needed nutrient and sediment reductions:

a. A nutrient management plan that meets the nutrient management specifications developed by the Department of Conservation and Recreation;

b. A forest or grass buffer of appropriate width to sufficiently limit sedimentation and nutrient pollution between hayland and perennial streams;

c. A soil conservation plan that achieves a maximum soil loss rate of ?T,? as defined by the Natural Resources Conservation Service;

d. An assessment of all best management practices currently in place, whether as part of a cost-share program or through voluntary implementation;

e. Such other best management practices as may be developed and adopted by the Board; and

f. An implementation schedule and plan.

3. For all pasture, include the following components as needed and based upon an individual on-farm assessment to determine which practices will result in needed nutrient and sediment reductions:

a. A nutrient management plan that meets the nutrient management specifications developed by the Department of Conservation and Recreation, if the pasture received any application of mechanically applied manure, poultry litter, or biosolids within the past three years or will receive such applications in the future;

b. A pasture management plan or soil conservation plan that achieves a maximum soil loss rate of ?T,? as defined by the Natural Resources Conservation Service;

c. An assessment of all best management practices currently in place, whether as part of a cost-share program or through voluntary implementation;

d. Such other best management practices as may be developed and adopted by the Board; and

e. An implementation schedule and plan.