This model regulation is designed to control emissions of nitrous oxide (N2O) from large commercial crop farms to reduce impacts of N2O pollution to the stratospheric ozone layer. The regulation establishes a program that requires development and implementation of farm-specific nitrogen management plans, prepared based on field and crop specific conditions by a certified nitrogen management planner. Plans must include nitrogen application rate targets calculated at the field and crop level, accounting for application of best management practices and cover crops. The program includes training and continuing education elements for planners, along with recordkeeping and reporting requirements for commercial farms.
As detailed in the memorandum below, the regulation is structured with a number of leverage points that can be modified to expand the scope or binding nature of different regulatory components. For example, as presently drafted, the applicability threshold is set through definition of the term “commercial farm” which is not triggered unless a farm is both greater than 1,000 acres in size and grosses more than $1,000,000 per year. These levels can be easily modified. Likewise, nitrogen application rate targets are currently structured to be non-binding, so long as the farm implements the minimum core strategy of planting off-season cover crops. The nitrogen application rate target, which accounts for application of site-specific best management practices, could be converted to a binding limit in the future through subsequent regulatory amendments as program data is collected and effectiveness of the existing program is assessed.
This plan-based regulatory framework has analogous precedent at the state and federal level and provides an appropriate structure to drive significant N2O emission reductions at commercial farms while providing maximum flexibility to farmers. It draws from nutrient management programs implemented by the states of Maryland, Delaware and Virginia, as well as plan requirements applicable to Concentrated Animal Feeding Operations (CAFOs) under the federal Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit program. The plan-based regulation proposed here is designed instead for adoption by EPA under section 615 of the CAA. Alternatively, with minor modifications, the regulation can be adopted as a statute or regulation at the state or federal level.
Readers should see also our LPDD model healthy soils bill for establishing state N20 management standards, adopting a state-level approach to this issue, and our LPDD analysis of how states can legislatively adopt the Climate Action Reserve’s framework, which implements cropland nitrogen management best practices.
These important contributions to the LPDD implementation project were drafted principally by Lindsay Brewer and Kevin Poloncarz, with assistance from Steven Palmer and Jasmine Jennings, all of Covington and Burling, LLP. Peer reviewing was provided by Jessica Wentz, Senior Fellow and Associate Research Scholar, Columbia Law School Sabin Center for Climate Change Law, and David Kanter, Ph.D, Assistant Professor of Environmental Studies, New York University, and Vice Chair, International Nitrogen Initiative, who were also the LPDD chapter’s co-authors.