NO P: MA Nutrient Management Regulations Take Effect

How the regulations were promulgated

In 2014, the Massachusetts Department of Agricultural Resources (MDAR) proposed a new fertilizer nutrient management regulation focused on reducing phosphorus (P) runoff and leaching that contribute to eutrophication of surface waters. In April of that year, NEBRA submitted comments, criticizing the proposed regulation's lack of clarity and its likely impacts on the recycling of organic residuals. Massachusetts Farm Bureau Federation (MFBF) and others provided comments as well. And, for about a year, NEBRA and others did not hear further about the proposed regulation.

This nutrient management regulation was driven by a law passed by the Legislature in 2012. That law required MDAR to adopt regulations by 2014 that would reduce non-point P sources, in order to “maximize the credits relative to storm water discharge or similar permits issued by the United States Environmental Protection Agency (EPA).” The pressure to get the regulation in place led to MDAR suddenly promulgating a final regulation (330 CMR 31.00) late this spring with the first effective date – for fertilization of turf – being June 5, 2015. The agricultural parts of the regulation go into effect on December 5, 2015.

In rushing the regulation into effect, MDAR provided no response to comments and no public warning. And the final version is quite similar to that proposed in 2014; it remains confusing and difficult to interpret, according not only to NEBRA members, but also according to other stakeholders, such as MFBF and Natural Resources Conservation Service (NRCS). Many comments from various stakeholders, including NEBRA, were apparently ignored.

NEBRA working to discern the intents and impacts of the regulation

Since June, the NEBRA Regulatory and Legislative Committee (RegLeg Committee) and staff have talked with numerous key stakeholders involved in or affected by the new regulation, including MFBF, NRCS, and UMass Extension. The latter is charged with implementing a lot of the details of the regulation: throughout the regulatory text are requirements to “follow UMass Extension guidelines.” Extension staff explain that they are doing what they can to help interpret the regulation, but they have been provided no funding to help MDAR with this task and the education and outreach that MDAR is planning to provide to stakeholders. Extension has in place general nutrient management guidance (best management practices) for turf, cranberries, vegetables, dairy farms, and horticulture. But these guidance documents are lengthy, complex, and appropriately rife with caveats and hedging statements (that's the way guidance is). And they were not written to be referenced by this new regulation. Reg/Leg Committee members are wondering: as the new nutrient management regulation goes into effect, who is going to determine whether or not any particular application of phosphorus (P) is in compliance with Extension guidance and, therefore, the regulation?

For the part of the new regulation that addresses fertilizing turf (effective June 5th), MDAR has provided a fact sheet. It seems to cut through any uncertainties:

“These regulations impact anyone who applies plant nutrient materials (including commercial fertilizer and various other plant nutrient materials) to both agricultural and non-agricultural land, including lawn and turf.”
“Phosphorus containing fertilizer may only be applied when a soil test indicates that it is needed or when a lawn is being established, patched or renovated.”

While in some states (e.g. New York), organic residuals have been partially exempted from this kind of strict P regulation, this is not the case in Massachusetts, according to clarifying statements by MDAR staff and the MDAR turf fact sheet:

“In determining the amounts of phosphorus and nitrogen that may be applied, the amount known to have been applied with organic plant nutrient sources (such as natural organic fertilizer, compost, and biosolids) should be accounted for.”
“The amount of phosphorus applied with organic sources shall not exceed the maintenance phosphorus rates for turf as specified in the UMass Guidelines. Soil testing provides the most accurate method for determining the phosphorus requirements.”

What does it mean for the management of organic residuals in MA?

From evaluation to date, NEBRA interprets the new regulations as follows:

The new regulation, 330 CMR 31.00 clearly applies to the application to soils of biosolids and other organic residuals – including food waste, digestate, and composts. The application to soil of any plant nutrient (i.e any concentration of N-P-K) appears to be regulated.
No P-containing fertilizer or organic residual can be applied to turf or agricultural land – and, it seems, to any soil – unless a soil test acceptable to UMass Extension demonstrates a need for P. Applications are not recommended - and thus not permitted – if soil P tests show "above optimum" or "excessive" levels of P, according UMass guidance. Such guidance is based on analysis of extractable P, using the relatively aggressive Modified Morgan extraction method.
According to the UMass soil testing laboratory and UConn Professor Tom Morris, a leading soil fertility scientist, "above optimum" or "excessive" P is commonly found in the following soils in MA (and CT) in order of prevalence based on soil tests: flower gardens > vegetable gardens > small vegetable farms > dairy farms > other agricultural soils > golf courses.
The question is: how significant are these potential outlets for organic residuals - digestates and composts? The restriction on applying P means that some, or perhaps a great deal, of these markets for organic residuals has been removed. What kinds of places in MA are left for use of P-containing residuals? Home flower and vegetable gardens, small vegetable farms, and dairy farms are likely to be mostly off-limits.
Residuals have been commonly used on turf – but can now only be used for establishing new turf, not for topdressing & maintenance (unless a soil test shows need for P).
Therefore, the growing volumes of organic residuals being produced because of the MA Department of Environmental Protection (MassDEP) 2014 regulation diverting organics from landfills will now have fewer outlets within the state. And the use of these residuals –digestates from anaerobic digestion and composts – will now require additional testing, nutrient planning (nutrient management plans required if application site is greater than 10 acres), and application best management practices.

The dynamics of P in soils and residuals is not so simple

The dynamics of P in soils is complex. Decades of research have produced many thousands of published papers. Scientists agree that P is found in numerous places in soil, including:

dissolved in soil pore water,
strongly bound to iron (Fe), aluminum (Al), calcium (Ca), etc. in mineral form
complexed in organic matter

Soil conditions, such as pH, temperature, water saturation, and microbiological activity, affect the behavior of P in the soil.

Scientists also agree that Fe, Al, and Ca bind a great deal of P, and if there is plenty of those cations available, P will be held strongly in mineral form and not be environmentally relevant for surface water eutrophication. It does not matter how much total P is in a soil; if it is all bound with Fe, Al, and Ca, the risk is small that it will move to surface waters, except by soil erosion that carries the mineral particles into surface waters (even then, chemical changes need to release the P from the mineral complexes). Therefore, some scientists still question the environmental relevance of measured high levels of total P in soil. They argue that soil P saturation – the relative abundance of P in relation to Fe, Al, and Ca – is the most important measure for understanding the environmental risk. Professor Tom Morris (UConn), who presented at a UMass Extension workshop on August 17th, noted that research is beginning to identify numerical thresholds for environmentally relevant P and that those thresholds are higher than the simple soil test thresholds for "excessive" P.

But, when it comes to setting policy, Professor Morris likes clear and simple guidance; such guidance makes it most likely that a message will get across to the most people. Therefore, in this case, he strongly advocates for not applying any further P to any soil that tests "above optimum" or "excessive." Period.

In contrast, researchers at Penn State University and University of Washington and others are interested in regulating based on the nuances of P dynamics. For example, when it comes to applying biosolids that contain relatively high levels of Fe, Al, and/or Ca, they argue that more total P can be applied because it is bound in mineral form and not environmentally available. This thinking has been integrated into the P site indices used, for example, in Pennsylvania, Ohio, and New Hampshire, which take into account the P “source coefficient” – the understanding that some sources of P, including biosolids, have lower percentages of environmentally relevant P than do, for example, commercial P fertilizers.

These more nuanced approaches to P dynamics in soils and organic residuals matter. If Massachusetts’ goal is to recycle more organic residuals (e.g. food waste banned from landfills), then a blunt, blanket approach to P nutrient management, as MDAR has done with its new nutrient management regulations, is counterproductive. Just saying no to any and all P above the optimum level determined by one particular kind of soil test may create unnecessary obstacles to the use of digestates and composts.

Consider the big picture

Making energy from residuals – a MA priority – results in digestates that must be managed; they contain abundant P.
Other organics diverted from landfills result in compost or other soil amendment products that contain P.
Applying organic residuals products to soils has many benefits – reducing irrigation needs, growing healthier plants, reducing needs for fungicides, etc., making turf more resilient, providing micronutrients, sequestering carbon, recycling local nutrients & organic matter, etc. It can be argued that environmental policy should recognize and promote the benefits of organic residuals and work more carefully on the P issue, rather than creating a blanket ban on P application that stymies their use.
Sustainable management of organics will only be possible if there are vibrant markets and customer demand for the end products; that demand will pull organics from landfills. But that demand is now stymied by the new MDAR regulations.
The Northeast, including MA, is a large net importer of P – it comes in foods and feeds from the midwest, CA, etc. It goes down the drain to WWTPs, which are doing a good job removing most of it from water, diverting it into sludges (which, when treated, are biosolids). That’s one form of residual. Other P is in manures and food waste, other residuals.
At the same time, P comes into MA in commercial fertilizers (and residuals products from out of state) that, until now, have been generally unregulated.
There’s an excess of P ending up in MA; some has to be exported or kept out. Where to and in what form and how?
WWTPs concentrate P in solids; they can strip it out fairly efficiently – there are technologies doing that now in places like Chicago (Ostara being installed there). It’s costly, but that is part of the solution. The result is a concentrated P fertilizer that can be easily shipped back to places where P is needed.
Manures & digestates are also liquid, collected materials to which the same P-stripping technology could be applied; but that would be costly, especially on the typical small scale of facilities managing these residuals.
Local residuals – food waste, manures, digestates, composts – are not easily transported long distances to places were P is needed. But, in the region where they are produced, they provide many benefits to soils, crops, and local economies, so it would make sense to have their local utilization be a priority. The new MDAR regulation acts against this priority.
A rational approach to reducing the net P in MA would be to target the commercial fertilizers, which are shipped in. It would make sense to create incentives to have farmers and landowners preferably use local sources of P (local composts, digestates, etc.), rather than TSP manufactured in Florida or overseas.

Continuing to advance understanding

NEBRA’s Reg/Leg Committee is continuing to engage in discussions about the new MDAR nutrient management regulations, corresponding with and learning from MassDEP, MDAR, MFBF, Extension, and other stakeholders. A letter to MDAR’s Commissioner, with copies to MassDEP and the Governor’s Office, is in the works (and will be posted in September on the NEBRA Members-only webpages). The question being posed is whether more nuanced regulation and management of P applied in organic residuals may be supported by the science and should be considered. The opportunity to address this question may by in the interpretation and implementation of the guidance that the regulation requires of UMass Extension. It may become possible for Extension to refine its various guidance to allow for use of water extractable or environmentally relevant P tests in determining recommendations for use of P from various sources (chemical fertilizers, manures, biosolids, other organic residuals).

But, for now, the questions mount. For example, at the Extension workshop with Professor Morris, a simple question came up regarding whether or not the regulation would allow for a small amount of starter P fertilizer to be used when planting corn, even when a soil test showed above optimum or excessive P. Use of such fertilizer is recommended by Extension guidance (and Professor Morris), no matter what the soil P level; it is a best management practice to ensure vigorous early growth ofcorn seedlings at a time when P complexed in organic matter and the soil may not become available rapidly enough. But the new MDAR regulation simply prohibits that use on soils with "above optimum" or "excessive" P, no matter what. That is an example of the blunt, black-and-white regulation standing in direct conflict with a nuanced best management practice or guidance. “Maybe the regulators will have to make an exception in that particular case,” said Professor Morris. Which leads to questions about what other special cases will be given exceptions.

NEBRA was a co-author of WEF’s fact sheet regarding the dynamics and management of P in biosolids, which provides further background on this topic.