No. 38071 (Change in Proposed Rule): Rule R64-3. Utah Environmental Stewardship Certification Program (UESCP), a.k.a. Agriculture Certificate of Environmental Stewardship (ACES)

DAR File No.: 38071
Filed: 03/11/2014 03:54:32 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule establishes general practices and procedures for implementing the Agriculture Certificate of Environmental Stewardship (ACES). The Department is amending the rule to incorporate comments received from the Division of Water Quality.

Summary of the rule or change:

The changes contain a list of terms with their definitions used in the ACES program, followed by requirements and procedures to qualify for certification. The requirements and procedures are for renewing, investigation of, revoking, or extending certification. The amendments clarify procedures and policy for implementing the ACES program. (DAR NOTE: This change in proposed rule has been filed to make additional changes to a proposed new rule that was published in the November 15, 2013, issue of the Utah State Bulletin, on page 15. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike-out indicates text that has been deleted. You must view the change in proposed rule and the proposed new rule together to understand all of the changes that will be enforceable should the agency make this rule effective.)

State statutory or constitutional authorization for this rule:

• Section 4-81-107

Anticipated cost or savings to:

the state budget:

Cost of signs are $200 per sign, one sign per operation that finishes certification in all sectors. Cost of education materials and workshops is $30,000 along with the cost of certified planners.

local governments:

There is no cost or saving to local government since local government is not involved in the Environmental Stewardship Certification Program.

small businesses:

There will be a cost of $100 per sector not to exceed $250.

persons other than small businesses, businesses, or local governmental entities:

Only agricultural operations will be affected that apply for certification. This rule change does not apply to other small businesses, businesses, or local government entities.

Compliance costs for affected persons:

Compliance costs for affected person will be $100 per sector not to exceed $250.

Comments by the department head on the fiscal impact the rule may have on businesses:

This is a totally volunteer program and the rule does not create any direct financial impact on the agricultural operation. If they decide to participate in the ACES program, there will be a cost of $100 per sector not to exceed $250 depending on the numbers of sectors certified in. Most of this fee will be used to pay for the ACES sign that will be awarded to the operation. Depending on the current practices and conditions on the operation, the owner may have costs to update their operation to meet the best management practices required by ACES, which will bring them into compliance with state and federal environmental regulations. A substantial portion of these costs can generally be offset with grants from USDA programs. In addition, best management practices will increase the profitability of the operation while improving their environmental stewardship.

LuAnn Adams, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Agriculture and Food
Conservation Commission
350 N REDWOOD RD
SALT LAKE CITY, UT 84116-3034

Direct questions regarding this rule to:

• Kyle Stephens at the above address, by phone at 801-538-7102, by FAX at 801-538-7126, or by Internet E-mail at [e-mail]
• Kathleen Mathews at the above address, by phone at 801-538-7103, by FAX at 801-538-7126, or by Internet E-mail at [e-mail]
• Thayne Mickelson at the above address, by phone at 801-538-7171, by FAX at 801-538-9436, or by Internet E-mail at [e-mail]
• Jay Olsen at the above address, by phone at 801-538-7174, by FAX at 801-538-9436, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/01/2014

This rule may become effective on:

05/08/2014

Authorized by:

LuAnn Adams, Commissioner

RULE TEXT

R64. Agriculture and Food, Conservation Commission.

R64-3. Utah Environmental Stewardship Certification Program (UESCP), a.k.a. Agriculture Certificate of Environmental Stewardship (ACES).

R64-3-1. Authority and Purpose.

Pursuant to Section 4-18-107, this rule establishes general operating practices and procedures for implementing the Agriculture Certificate of Environmental Stewardship (ACES).

R64-3-2. Definitions.

(1) "[ACES ]Technical Standards": means a collection of practices adopted by the Commission that will protect the environment in a reasonable and economical manner while still protecting the sustainability of agriculture.

(2) "[ACES ]workbook": means information relating to the implementation of best management practices, education requirements , and information required for ACES certification. The workbook(s) is considered property of the owner/operator and remains in their possession.[  Only the Certification Forms are retained at the Department.] The workbook(s) [must]shall be retained by the owner/operator and available for review by the Department upon request.

(3) "Agriculture Sectors": means; a Farmstead, Animal Feeding Operation, Grazing or Pasture Operation, and Cropping System.

(4) "Animal Feeding Operation" (AFO): means a lot or facility where the following conditions are met: animals have been, are, or will be stabled, housed, or confined and fed or maintained for a total of forty-five (45) days or more in any 12-month period; crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility; and two or more AFOs under common ownership are considered to be a single AFO if they adjoin each other or if they use a common area or system for the storage or disposal of waste

(5) "Best Management Practices" (BMP): means common acceptable practices, including but not limited to use of technology and management policies[ and the use of technology], used by sectors of agriculture in the production of food and fiber that protect and sustain natural resources.

(6) "Certification Forms": means contact information and sector(s) verification page(s) that are reviewed by the planner and verified by the Department.

(7) "[Certified ]Planner(s)": means a planner(s) of a local conservation district, or other qualified planner, that has been certified by NRCS or Grazing Improvement Program Coordinator(s), and is approved by the commission to certify an agriculture operation under the ACES [p]Program.

(8) "Commission": means the (Utah) Conservation Commission (UCC).

(9) "Comprehensive Nutrient Management Plan or Nutrient Management Plan" (CNMP/NMP): means a plan to properly store, handle, and spread manure and other agriculture byproducts to protect the environment and provide nutrients for the production of crops (plants).

(10) "Cropping": is the area where crops are planted, raised, and harvested. This includes but is not limited to fruits, vegetables, grain, oil seeds and alfalfa.

(11) "Environmental Issues": means any negative or adverse effect on a natural resource caused by human impact(s) such as nutrients, pesticides, petroleum products, pharmaceuticals, recreation, and sediment.

[(11)](12) "Department": means the (Utah) Department of Agriculture and Food (UDAF).

[(12)](13) "DEQ": means the (Utah) Department of Environmental Quality.

(14) "DWQ": means (Utah) Division of Water Quality.

[(13)](15) "Education modules": means education materials which provide information on best management practices and current regulations either in workshops/training and/or online at Department of Agriculture and Food ACES site (http://ag.utah.gov/aces/index.html),[. They] that will inform and/or educate the producer on requirements in ACES.

[(14)](16) "Farmstead": is considered to be the central area of operation which may include but not limited to home/office, yards, storage facilities, and other buildings.

[(15)](17) "Grazing and Pasture": is considered to be any vegetated land that is grazed or has the potential to be grazed by animals.

(18) "Grazing Improvement Program Coordinator(s)": are professionals who improve the productivity and sustainability of our rangeland and water sheds through properly managing grazing by time, timing, and intensity.

[(16)](19) "NRCS": means the Natural Resources Conservation Service.

(20) "Owner/Operator": means any person(s) who has legal, financial or daily decision making responsibility for the operation.

(21) "Operation": means the agricultural entity requesting certification for ACES.

(22) "Technical Service Providers (TSP)": are individuals, private businesses, nonprofit organizations, or public agencies outside of the U.S. Department of Agriculture (USDA) that help agricultural producers apply conservation practices on the land, and/or NRCS certified.

[(17)](23) "[Review/]Verification": means an audit performed by the Department of Agriculture and Food.

 

R64-3-3. Requirements and Procedure to Qualify for the Agriculture Certificate of Environmental Stewardship (ACES).

(1) Owner/operator shall complete the requirements in the workbook(s) for each desired sector (farmstead, animal feeding operation, grazing and pasture, and cropping). Workbook(s) are available at the [d]Department's website (http://ag.utah.gov/aces/index.html).

(2) [Certified]Planner(s) shall be available from conservation districts to aid owner/operators in meeting the requirements of ACES which are in the workbook(s).

(3) Requirements found in the [W]workbooks shall be reviewed and site visit conducted[verified] by a [certified ]planner(s), in preparation for Commission certification.

(4) Verification shall be conducted by the Department after a site visit by the planner(s) has occurred and before Commission certification.

[(4)] (5) Owner/operator shall complete education requirements prior to certification either by:

(a) completing workshops/training endorsed [sponsored]by ACES;[ or]

(b) [by]completing education modules found on the [d]Department's website (http://ag.utah.gov/aces/index.html) under the ACES [p]Program; or[.]

(c) combination of workshops/training and education modules from the Department's website.

(6) Once the operation has completed requirements and been approved by the planner(s) and verified by the Department, the operation my request certification from the Commission.

(7) The Commission may certify the operation after the operation has requested certification and after reviewing the planner(s) and Department records.

[(5)](8) When an operation is certified for a given sector, the Department shall provide a certificate for that sector

[(6)](9) After completion of all sectors the operation is involved in , the Department shall provide a sign.

[(7)](10) Owner/operator shall be charged $100 for each sector certified, not to exceed $250 total per certification period.

(11) An Animal Feeding Operation may request permit by rule coverage from DWQ by completing the request form found on the back page of the workbook and submitting it to DWQ with a copy of their ACES certificate.

 

R64-3-4. Requirements and Procedures for Renewing, Investigation of, Revoking or Extending the Agriculture Certificate of Environmental Stewardship (ACES).

(1) Prior to the five (5) year certificate expiration[extension] date, the Department shall send a certified letter to the operation:[.]

(a) The owner/operator has [120]30 days to respond by written request for a certificate[to the] extension for another five (5) years[notice].

(b) If no response is received the operation's certification shall expire on the expiration date.

(c) The owner/operator shall continue to meet all requirements of the original certification to receive the extension.

(i) review of workbook(s) requirements shall be made[Such verification shall be made] by a [certified ]planner(s);[ and by the Department.]

(ii) verification by the Department as required in R64-3-3(3-7); and

(iii) Owner/operator shall pay certification fee as stated in R64-3-3(10).

[(a)] (2) If any requirement is found in non-compliance, the [certified ]planner(s) shall review with the owner/operator what [changes must]action(s) shall be met for the operation to retain certification.

([b]a) The owner/operator shall have 120 days to [respond to]meet the request in order to maintain [p]Program certification in that sector.

[(i)](b) If the request is not met, the sign shall be removed by the owner/operator and returned to the Department.

[(2)](3) If the operation is certified in more than one sector only the sector in which they are in non-compliance shall the certification be revoked and the sign removed and returned to the Department.

Investigation and/or revocation of certification:

(4) Planner(s) and the Department shall have access to review records on site and make site visits during normal business hours:

(a) The Department shall make every effort to notify the operation prior to the visit.

(5) If any requirement is found in non-compliance, the planner(s) shall review with the owner/operator what action(s) shall be met for the operation to retain certification.

(a) The owner/operator shall have 120 days to meet the request to maintain Program certification in that sector

(b) If the request is not met, the sign shall be removed by the owner/operator and returned to the Department.

(6) If the operation is certified in more than one sector only the sector in which they are in non-compliance shall the certification be revoked and the sign removed and returned to the Department.

[(3)](7) Owner/operator may request a variance by notifying the Commission Chair, in writing, stating the reason they could not comply within the 120 days.

[(4)](8) The Commission Chair has 30 days to respond, in writing, to the request.

[(5)](9) Prior to the ten (10) year termination date of a certificate, the Department [will]shall send a certified letter to the operation. Re-certification [will]shall require the completion of requirements in a current ACES workbook(s) and verification as required in R64-3-3(3-7) and fee according to R64-3-3(10).

[(6)](10) Investigation: The [d]Department shall review any complaints/concerns received.[brought by either DEQ, or a citizen environmental complaint.]

(a) The Department shall contact the planner(s) who certified the operation, and they shall investigate the complaint/concern. If the planner(s) is not available the Department shall contact another planner(s).

(b) If the complaint/concern is not found to be a significant violation of the certification program then the reason for such determination shall be documented in a letter to the owner/operator and no action will be taken.

(i) Planner(s) may make recommendations to correct the concern.

[(a)](c) If it is determined that a significant violation has occurred.

(i) Department shall report the operation to the Commission Chair.

(ii) Commission chair shall then take [one of ]the following actions:

(A) Inform the commission, and[.]

(B) Make a [L]list of corrective actions necessary and establish time frame for compliance to address the complaint and still maintain certification.

[(7)](11) The Commission Chair shall then inform the operation by certified letter [which]of corrective action (s) and time frame for compliance[was taken].

[(8)](12) If the certified operation does not comply within the[a reasonable] time frame specified to rectify the concerns stated in the commission's letter.

(a) The [d]Department shall make a report to the Commission stating reasons for non- compliance.

[(9)](13) Commission shall review [d]Department reports and may revoke certification.

(a) If certification is revoked the [operation]owner/operator shall remove the sign and return it to the Department, and certification fee shall not be refunded;

(i) The operation shall not be allowed to participate in the ACES [certification p]Program for two (2) years.

[(10)](14) If an operation denies the [d]Department access to a site visit and/or review of records [after 3 attempts (one of which is by certified letter),]the Commission shall revoke the certification.

[(11)](15) If the operation is sold and/or under new management, the current certification shall be revoked.[ and the new owner/operator will need to go thru the certification process with a current workbook.]

(a) The Sign shall be removed and returned to the Department.

(16) The new Owner/operator shall:

(a) inform the Department of the change in writing;

(b) go through the certification process with a current workbook(s) as required in R64-3-3(3-7)

to become certified; and

(c) pay the fee according to R64-3-3(10).

[(12)](17) The [d]Department shall give a yearly report on the ACES [p]Program to the Commission.

 

R64-3-5. Requirements and Procedures for the Commission to Administer the ACES Program.

(1) In approving a planner for the ACES Program the Commission shall consider the following:

(a) NRCS certification in the sector(s) and/or area(s) of the workbook(s) being reviewed, and/or a Technical Service Provider (TSP) approved by NRCS in the sector(s) and/or area(s) of the workbook(s) being reviewed, and Grazing Improvement Program Coordinator(s), and

(b) training on the ACES Program from the Department

(i) at least every five (5) years, and

(ii) when changes are made to the workbook(s).

(2) The Commission shall provide a list of approved planners on the ACES website (http://ag.utah.gov/aces/index.html).

Variance

(3) The Commission shall consider the following in determining a variance:

(a) the reasons for granting a variance:

(i) insufficient time to complete the necessary improvement(s);

(ii) consideration of the effect the season has on the improvement(s); and

(iii) economic factors determined by the availability of funds.

 

KEY: environment, stewardships, certifications

Date of Enactment or Last Substantive Amendment: 2014

Authorizing, and Implemented or Interpreted Law: 4-18-107