New Fertilizer Run-Off Exemption Effective July 1, 2011

Indiana law makes it illegal to “drain” or “cause to seep” into waters of the state any organic matter that causes or contributes to a polluted condition.  I.C. § 13-18-4-5.  Stated in plain English, this means that Indiana law forbids a farmer from land applying manure in such a manner that will cause it to run off into a stream or ditch. 

For years, the Indiana Department of Environmental Management (IDEM) applied an “agricultural storm water exemption” to this law.  Provided the farmer had a valid CAFO permit, properly land applied manure within agronomic rates, and the run-off was the result of precipitation, not poor farming techniques, IDEM generally would not seek civil enforcement for agricultural run-off into streams or creeks.    But the “agricultural storm water exemption” only applied to CAFOs, the largest of Indiana’s concentrated livestock farms.  As a result, a small farm or CFO that did not have a CAFO permit did not get the benefit of the ag storm water exemption, meaning the same conduct that might result in liability for a CFO or small livestock farm resulted in no liablity for a CAFO. 

On July 1, 2011, this inconsistency will come to an end as a revision to the law expands the ag storm water exemption to all farms. On this date House Bill 1187 will become law.  This new law states: 

     [I.C. § 13-18-4-5(a)] does not apply to organic or inorganic matter that consists of fertilizer material contained in:
        (1) runoff from a storm event; or
        (2) irrigation return flow;
entering the waters of Indiana as a result of land application of fertilizer material in compliance with rules adopted by the state chemist under I.C. 15-16-2-44.

I.C. § 13-18-4-5(b)(2011).

This law exempts liability for fertilizer run-off from farm fields following a storm event, provided the chemical fertilizer or manure was properly land applied.  To ensure that fertilizer or manure is properly applied, farmers should follow the rules and guidelines established by the Office of State Chemist, as well as any permit conditions established by IDEM.

           

Farmers should carefully maintain accurate records of chemical fertilizer and manure land application activities because the exemption does not apply automatically.  In order to receive the benefit of the exemption after a land application run-off event, farmers must furnish IDEM documentation of compliance.

This article is intended to be informative only and should not be construed as legal advice.