Chapter 11. Maryland Agricultural Certainty Program

“Agricultural Certainty”, “Certainty”, or “Program” means the Maryland Agricultural Certainty Program.

“Agricultural operation” or “operation” means a business or activity where a person tills, crops, keeps, pastures, or produces an agricultural product, including livestock, poultry, plants, trees, sod, food, feed, or fiber by in-ground, out-of-ground, or other culture.

“Agricultural sources of nitrogen, phosphorus, or sediment” means sources of nitrogen, phosphorus, or sediment that originate from an agricultural operation’s land or animals. This does not include sources of nitrogen, phosphorus, or sediment that originate from residential, municipal, industrial, or a commercial activity.

“Best management practice” or “BMP” means a conservation or pollution control practice that manages soil loss due to farming practices or manages animal wastes or agricultural chemicals so as to minimize movement of nitrogen, phosphorus, and sediment into waters of the State.

“Certainty agreement” means a written agreement between the owner or operator of an agricultural operation and the Department, as provided under this chapter.

“Certified verifier” means an individual certified by the Department under this chapter to review, inspect, and evaluate conditions, records, and management of an operation for purposes of qualifying for and maintaining compliance with the Maryland Agricultural Certainty Program.

“Department” or “MDA” means Maryland Department of Agriculture.

“Department of the Environment” or “MDE” means the Maryland Department of the Environment.

“Farm parcel” means agricultural land that is separately described by deed or tax parcel.

“Holds an interest” means a person who:

“Interfamily transfer” means a transfer of ownership or management of an operation between or among individuals who have a familial relationship including parent, spouse, child, sibling, grandchild, grandparent, step-parent, step-child, step-sibling, step-grandchild, or step-grandparent.

“Maryland Nutrient Tracking Tool” or “MNTT” means a Department-approved online platform with a performance-based calculation component that enables users to analyze agricultural parcels and their management to determine baseline compliance with the more stringent of the nutrient loading baselines outlined in either the Chesapeake Bay Total Maximum Daily Load (TMDL) for each watershed or the local TMDL that has been adopted for an impaired water body including Watershed Implementation Plan goals and any other nitrogen, phosphorus, and sediment control requirements. Through site- and operation-specific data inputs, the calculation component can generate multiple management scenarios and compute the nutrient reductions achieved by the application of agricultural best management practices.

“Nutrient management plan” or “NMP” means a plan that complies with the requirements of COMAR 15.20.07 and 15.20.08 that is prepared by a certified nutrient management consultant to manage the amount, placement, timing, and application of manure, fertilizer, biosolids, or other plant nutrients in order to:

“Person” means the State, any county, municipal corporation, or other political subdivision of the State, or any of their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any other entity, unless otherwise provided.

“Soil conservation and water quality plan” or “SCWQP” means a farm plan approved by a local soil conservation district to minimize soil erosion and to minimize the movement of sediment, animal waste, nutrients, or agricultural chemicals into waters of the State.

“Total maximum daily load” or “TMDL” means an estimate set in accordance with Clean Water Act requirements which establishes the amount of a particular pollutant, in this case nitrogen, phosphorus, or sediment inputs, that a water body can assimilate and still meet water quality standards.

“Watershed Implementation Plan” or “WIP” means a plan required by the U.S. Environmental Protection Agency for achieving the pollution reduction goals and allocations necessary in implementing the Chesapeake Bay TMDL.

An application on a Department form that includes a farm parcel in its entirety but need not include all farm parcels under the applicant’s management;

Documentation from the local soil conservation district that the current SCWQP for the operation is fully implemented to address all soil conservation and water quality issues;

A map identifying the location and boundaries of the operation showing field identification numbers and location of BMPs;

A current NMP that is fully implemented and is developed for the operation in accordance with regulations adopted by the Department; and

A report from a certified verifier engaged by the applicant that contains the information specified in §B of this regulation.

Inspect the operation before making the report;

Review all relevant records, including but not limited to those provided in §A of this regulation; and

Prepare a report on a Department form, supplemented by the verifier, that confirms the following:

Shall review the application and information submitted to assure that it is complete, true, and accurate and notify the applicant of any deficiencies;

Shall notify MDE by providing a copy of the application or any portion of the application as requested by MDE, after receipt of which MDE shall advise the Department if:

Shall determine the compliance status of the operation and applicant with all the Department’s laws, regulations, and permit conditions applicable to nitrogen, phosphorus, and sediment;

Shall review information submitted by the certified verifier to assure that it meets the requirements set forth in this chapter;

May inspect the operation, with the verifier if requested by the Department, and request records pertaining to the SCWQP, NMP or management otherwise related to addressing nitrogen, phosphorus, and sediment issues on the operation in order to verify the application; and

Shall retain as required by law the application, information, and records in a manner that protects its confidentiality prior to certification and retain all records and information in a manner that protects the identity of the person applying in perpetuity.

Meets the laws, regulations, rules, and permit conditions applicable to the operation at the time of certification;

Has no outstanding conditions resulting in movement of nitrogen, phosphorus, or sediment that impacts water quality;

Receives approval from MDE if the operation is permitted or has an application submitted to be permitted by MDE;

Is managed under a current SCWQP that fully implements BMPs to address all nitrogen, phosphorus, and sediment runoff on the operation;

Manages fertility using a current NMP fully implemented in accordance with COMAR 15.20.07 and 15.20.08;

Is in compliance with all State and federal laws, regulations, and permit conditions related to agricultural sources of nitrogen, phosphorus, and sediment on the operation;

Meets the agricultural nitrogen, phosphorus, and sediment reduction thresholds required for achieving the local and Chesapeake Bay TMDLs approved by the U.S. Environmental Protection Agency at the time of certification as determined by MNTT; and

Enters into the Certainty agreement required under §F of this regulation.

Continued compliance with applicable local, State, and federal laws, regulations, and permit requirements pertaining to nitrogen, phosphorus, and sediment control;

Maintenance and full implementation of a current NMP;

Maintenance of BMPs that address nitrogen, phosphorus, and sediment control, and are part of the SCWQP and any other BMPs necessary to achieve certification;

Meeting record-keeping and annual reporting requirements;

Agreeing to site reviews and inspection of records at least once every 3 years to verify current conditions on the operation and compliance with certification requirements and recognizing that the Department reserves the right to inspect more frequently if it determines a need;

Agreeing to notify the Department no later than 60 days prior to any change in the owner or operator;

Agreeing to notify the Department as soon as practicable, but in any case no later than 60 days after the occurrence of any condition or event which would impact the certification under the Program, including but not limited to property title transfers or changes in the operation, pursuant to Regulation .05A(2) of this chapter, that result in or increase nitrogen, phosphorus, or sediment runoff or change adherence to TMDL baseload; and

Agreeing to address within a time frame established by the Department, after concurrence by MDE, any nitrogen, phosphorus, or sediment runoff problem arising on a certified operation during the certification period through no fault of the operator.

The operation remains in compliance with the Certainty agreement set forth in Regulation .04F of this chapter and all other requirements of the Program under this chapter; and

There are no changes to the operation, including no change in the:

Execute an agreement with the Department to bring the operation into compliance to meet certification requirements;

Reapply for certification; and

Terminate the Certainty agreement.

Approve changes not deemed significant; and

Require documentation be provided by a new MNTT analysis verifying TMDL thresholds continue to be met.

The certification holder shall provide notice within 60 days to the Department describing the condition;

The Department will coordinate a site inspection with MDE and may assign a certified verifier to conduct a site inspection; and

Following a Department review, the Department, with concurrence from MDE, shall:

The application and information required under Regulation .04A of this chapter reflect current conditions as submitted to the Department;

All the requirements in Regulation .04 of this chapter are met; and

MDE approves the recertification if an operation is permitted or has a permit pending with MDE.

Except as provided in §I(2) and (3) of this regulation, is not subject during its 10-year certification period to local and State laws, regulations, or requirements enacted or adopted after the date of certification that require the reduction of agricultural sources of nitrogen, phosphorus, or sediment runoff to meet the Chesapeake Bay TMDL, including requirements of the WIP, local TMDLs, or other water quality requirements for managing agricultural sources of nitrogen, phosphorus, or sediment;

Is not protected from enforcement or corrective actions related to water quality impacts or violations; and

Is not protected from the application or enforcement of any other laws, regulations or permits, including the following:

Information as required on a Department form;

A map delineating the boundaries of the operation and showing field identification numbers and locations of BMPs on site; and

Information following an inspection and review of records for an operation applying for a Certainty agreement including:

The Department shall schedule site reviews and inspection of records at least once every 3 years for each certified operation under the Program to verify current conditions on the operation and compliance with Certainty agreement requirements.

The Department shall notify MDE of operations that are to have site reviews conducted and provide copies of the verifier’s report of interim site reviews.

The Department shall assign a certified verifier who:

Certified verifiers assigned by the Department to conduct interim inspections and reviews shall:

Information collected and submitted as a result of the inspection shall be maintained by the verifier and the Department, as required by law, in a manner that protects the identity of the person who holds the certification for the operation.

An operator shall receive a copy of the report prepared by the verifier conducting a review and inspection of records within 30 days and:

The Department may conduct an investigation that may include additional inspections to determine the actual condition and management of the operation.

The certified verifier shall provide a certified report within 30 days of the interim site review and inspection to the Department as required on a Department form that includes:

At each review the certified verifier shall provide the operator of the operation with information concerning any applicable new laws, regulations, or requirements that have become effective since the operation’s Certainty agreement and that will need to be addressed at the end of the 10-year Certainty agreement period.

The Department shall determine whether an operation is in compliance with all State water quality programs in effect when the Certainty agreement was signed pertaining to nitrogen, phosphorus, and sediment, and review information submitted from the verifier to ascertain compliance with the Certainty agreement.

The Department shall notify and provide information received from the verifier to MDE. MDE may seek additional information to assure compliance with laws, regulations, permits, or other requirements administered by MDE, including a site visit if needed and in coordination with the Department.

The Department may take the following actions based on the outcome of any inspections or the report of the verifier:

Education and experience;

Training; and

Continuing education.

Has 3 or more years experience developing SCWQPs or qualifies as a U.S. Department of Agriculture, Natural Resource Conservation Service, Conservation Planner level II;

Is certified in Maryland to prepare NMPs; and

Is certified in the use of the MNTT.

A Department reporting form that includes the person’s signed certification that the operation has been managed in accordance with the Certainty agreement and will continue to be so managed during the upcoming calendar year;

Current NMP records including soil analysis within the last 3 years for land receiving nutrients, fertility recommendations for crops produced, nutrients applied by source and crop type, and a map identifying the location and boundaries of the operation showing field identification numbers and location of BMPs; and

SCWQP records related to implementation of any additional BMPs during the reporting period.

All NMPs and records used to manage soil fertility during the certification period and for 3 years following the termination of any certification; and

The SCWQP for the operation and any updates, information, or documentation that addresses plan implementation or installation of additional BMPs during the certification period and for 3 years following the termination of any certification.

As required by law all records concerning any agricultural operation shall be maintained by the Department and shall be made available for public review, in a manner that provides the greatest public disclosure of records and information, after the Department redacts records to protect the identity of the person to whom the record or information relates.

The Maryland Public Information Act applies to any request for records.

The Department shall submit an annual report to the Governor, the Senate Education, Health, and Environmental Affairs Committee, and the House Environmental Matters Committee on or before December 31, beginning in 2014.

The annual report shall include:

After the opportunity for a hearing, the Department may deny, suspend, or revoke the certification of any person who:

The Department shall give notice and hold hearings in accordance with the Administrative Procedure Act.

The Department may consider the following when assessing whether suspension or revocation is warranted:

After the opportunity for a hearing, the Department may deny, suspend, or revoke the certification of any verifier who:

The Department shall give notice and an opportunity to be heard in accordance with the Administrative Procedure Act.

The Department may consider the following when assessing whether suspension or revocation is warranted:

Assisting in the development of regulations that govern the Program;

Monitoring and providing oversight on the development and implementation of policies and standards relating to the Program;

Evaluating performance of the Program and making recommendations for improvements to the Program based on information provided by the Department; and

Reviewing the draft annual report and other information to make recommendations.