Chesapeake Bay Action Plan

Despite all the rhetoric about how important it is to have an unpolluted and healthy Chesapeake Bay, sometimes you just have to wonder if anyone is really taking this Bay cleanup issue seriously. We’ve known for years now that agricultural operations in the Bay states are the number one source of nutrients and sediments to the watershed, yet neither state nor federal regulators have shown any willingness to do any of the things – permitting, compliance mandates and enforcement – that have worked well with so many other polluting industries.

While power plants, paper mills, sewage treatment plants and manufacturing plants have largely been cleaned up through the implementation of regulatory “stick” approaches, the chosen method of ag pollution abatement comprises of a series of unsuccessful, voluntary “carrot” approaches, including manure transport programs and nutrient trading.

After decades of failure, we’re about to reach new depths of futility with a bill, largely written by Maryland’s own Department of Agriculture, which was introduced this legislative session in Maryland by Senator Thomas Middleton. Middleton’s “Ag Certainty” bill will not only make certain that these highly polluting operations continue to pollute with officially sanctioned immunity, but it will also openly undermine the current Bay cleanup plan – the Bay Total Maximum Daily Load (TMDL).

Ag Certainty refers to a program under which agricultural operations that certify that they meet pollution reduction goals or certain pollution-control requirements will be deemed in compliance with existing and/or future water quality regulations and standards. In short, it’s a blanket immunity program designed to offer Big Ag a continuing free ride from mandatory pollution control and enforcement. Even worse, it ties regulator’s hands when it comes to implementing more protective water quality approaches when needed.

MDA and Senator Middleton’s Ag Certainty legislation could give Maryland’s roughly 5,000 farmers 10 years of immunity from any changes in future state regulation in exchange for what they are already supposed to be doing: complying with their existing nutrient management and soil conservation plans so that they don’t foul our public trust waterways.

While getting Ag to commit to current pollution abatement measures might sound like a good idea, locking in 10 more years of paper compliance with secret Nutrient Management Plans (NMPs) is a death sentence for the Bay. The Maryland Department of Agriculture likes to boast that 99 percent of farms in the state have submitted NMPs to the agency and the vast majority of farmers are complying with these plans, yet agriculture still remains the number one source of pollution in the Bay.

If farmers are all truly in compliance with their plans, this can only mean that the NMPs are broken. Plus, thanks to the recent Perdue litigation, we now know that NMPs are subject to manipulation by industry to avoid controlling pollution sources. The bill also expands on Maryland’s improper system of “Ag secrecy” to go along with its newfound certainty. Under existing state law (and the Ag Certainty bill), citizens are not even allowed to see the NMPs with which these farms are purportedly in compliance.

Ag certainty, with its immunity from future pollution abatement measures, also makes a mockery out of the Bay TMDL. Two years ago, EPA finalized this comprehensive “pollution diet” to restore clean water in the Chesapeake Bay and the region’s streams, creeks and rivers. Most importantly, to account for the “dynamic” nature of the Bay watershed and uncertain efficacy of the current plan, EPA built into the TMDL a set of checkpoints that allow for fine-tuning in case standards aren’t being met. Included in this accountability process are two-year milestones that represent key check-in points on the way to having all pollution reduction measures in place by 2025 to restore the Bay and its tidal rivers. Come 2017, the Bay TMDL calls for an even more comprehensive refinement of the plan should there be insufficient pollution reductions. EPA considers these milestones to be “a critical part of an accountability framework agreed upon by EPA and the states to assure progress.”

According to EPA’s TMDL Executive Summary, the Agency even dropped protective federal “backstops” (regulatory safety nets in case water quality was not being met) from the TMDL in exchange for some assurances from the states. For example, Maryland, Delaware and Virginia agreed to consider implementation of mandatory programs for agriculture by the end of this year if pollution reductions fall behind schedule. Not coincidentally, these are now the three states in the Bay Region that are developing Ag Certainty programs that will stop regulators from being able to make any shifts in the way Ag pollution is controlled should the Bay TMDL benchmarks not be reached.

MDA and Middleton’s Bill expressly exempts Ag operations from compliance with any changes in state or local laws necessary to meet the TMDL or the state Watershed Implementation Plans. So now Maryland, and other Bay states, are going from “mandatory” to “immunity” and those two-year checkpoints and 2017 re-visitation are rendered meaningless when it comes to the watershed’s biggest industrial source of pollution.

With Ag Certainty, we’ve just thrown a “critical” part of the TMDL out the window; the only real “certainty” that remains is that we’ll all be sitting down in 2025 again and try to come up with the next, great plan to clean up the Bay.

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Historically, land use decisions have been left up to local governments. While the State has tried to influence these decisions via various policy statements regarding smart growth, local autonomy has rarely been challenged and the laws implementing State policy generally have no “teeth.” Clearly, sprawl development has not been significantly curbed by these policies relying on voluntary compliance and recent legislation has reflected a trend to add at least the threat of a “stick” to the lure of a “carrot.”

SB236, The Sustainable Growth and Agricultural Preservation Act of 2012, encourages development supported by public sewer systems as opposed to sprawl development on septic systems. On the surface, this looked like a “win-win” piece of legislation that limits where septic systems can be used as a way to promote smart growth with a strong Chesapeake Bay cleanup component. The legislative provisions were implemented via “shall” statements to more forcefully push local government toward smart growth policies that concurrently reduce the associated growth costs born by the taxpayers and threats to the environment. However, some counties have revolted against the State’s threat to their autonomy and decided to test the State’s resolve to use the “stick.” Charles County seems poised to join the ranks of Frederick, Cecil and others who don’t have a problem with new development costs being born by the taxpayers and the water being too dirty for their children to play in.

Normally, there is some give and take between smart-growth advocates and the development community during the comprehensive land-use planning process. However, the 2012 Draft Comprehensive Plan for Charles County (The Plan) was essentially written by the development community to the exclusion of smart-growth policies, and without directives and goals based on serving the broader public’s interest. The process was permeated by the insistence of a majority of the Planning Commission (PC) that zoning density is a property right and downzoning is a “taking” of rights – a conclusion that is not supported by legal precedence, court decisions or the history and application of local zoning ordinances throughout this nation.

Therefore, any attempt to limit development anywhere in the County was automatically opposed with no regard for the obvious and well-documented potential environmental, quality-of-life, and fiscal consequences. Ultimately, this “takings” argument has set the course for a new land-use vision that will burden taxpayers with the cost of sprawl, cause further environmental degradation, and destroy resources that have public-health, ecological and economic value.

This Property-rights hysteria has led to clear violations of State policy as implemented in Maryland statutes. The development forces took complete control of the process via their sympathizers on the PC who willingly ignored and even actively conspired to circumvent State laws. The PC majority blindly embraced a tiers map developed in secret by a pro-development lobby made up of realtors, developers and farmers/speculators. Instead of complying with either the spirit or letter of SB236, the developer map ignored clear policy goals and statute text aimed at limiting septics in sensitive areas. In an attempt to circumvent the text of the Bill, the PC voted to change the zoning of over half the County to remove the word “Conservation” from the zoning classifications. There was no planned comprehensive rezoning and no assertion of a mistake or change in neighborhood as required by the Land Use Article in State Statutes. The majority of the PC just “spot-zoned” all the areas where they wanted to increase development on septics in total disregard for the law.

Apparent loop holes in the text of the Bill were exploited to increase the size of all minor subdivisions on septics from five to seven lots and also allow residue parcels to be treated as new subdivisions so some existing minor subdivisions can be expanded to 12 lots. Adequate Public Facilities mitigation is much less of a burden for minor subdivisions than for major subdivisions. Therefore, minor subdivisions are more of a burden to the taxpayers but better for the builders’ bottom lines.

The apparent corruption of sound growth and development concepts has also infected the Board of County Commissioners (BOCC) who didn’t have to endorse the PC’s biased anti-environment agenda. However, recent actions by the BOCC indicate that the development lobby has succeeded in seizing control of at least three of the five Commissioners who are willing to rubber-stamp the irresponsible decisions of the rogue Planning Commission.

Given that the state has established that the public has a right to witness the iterative process of zoning and comprehensive planning, it is critical to note that the public was not privy to details surrounding how this tiers map was developed. It was created by a private company, under the direction of a pro-development faction, and the public did not have access to the decision-making regarding what parameters were used to devise and establish the four tiers.

It remains to be seen if the political will to protect, preserve or conserve anything exists at the BOCC level.  However, it seems clear that the laws have enough “teeth” to hold Charles County accountable for The Plan and the tiers map, under review by various agencies. That the laws have been violated is not debatable; the violations are obvious and only the capability and commitment to enforce them are in question. It seems likely that Charles County will join the ranks of other counties thumbing their noses at state policies and that enforcing these policies and the laws that are being broken will fall to either the State or to coalitions of private organizations with limited legal assets.

It also seems that this type of behavior on the part of the PC majority should qualify for disciplinary action against them. According to The Land Use Article, the BOCC has the authority to remove Planning Commissioners for malfeasance. Most oaths of office include promises to honor laws and uphold the public trust, neither of which has been done in this case. However, the BOCC has not taken such action and the political will to do the right thing may not be strong enough – especially since their majority seems to mirror the same contempt for state law and the majority of Charles County citizens as does the PC. However, it should not be assumed that the residents of Charles County are unwilling to seek judicial remedies against those officials who ignore our laws and abuse the public trust. The PC-approved tiers map and comprehensive plan both fail Charles County, its citizens, and the Chesapeake Bay.

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Posted By Gerald W. Winegrad, Walter Boynton, Thomas R. Fisher, Bernie Fowler, Parris N. Glendening and Tom Horton

After 28 years of formal efforts to restore the Chesapeake Bay, the single most successful efforts have been in curbing bay-choking nutrient pollutants from sewerage treatment plants, so-called “point sources” from pipes. Maryland has been a leader in these efforts with passage of the Flush Tax in 2004 and its extension in 2012. This will assure that 69 of the largest Maryland plants will be removing both phosphorus and nitrogen to very low levels, approaching the limits of technology. These efforts are paid for by most Marylanders by fees on water and sewer bills.

Maryland is expected to meet strict nutrient reduction targets under the EPA-imposed bay pollution diet (known as the TMDL) by 2017. The state will accomplish much of that effort through these improvements to wastewater plants. Unfortunately, by 2020, the amount of nutrient pollutants will rise again and continue to rise as population increases and more wastewater flows to these plants. This is after the expenditure of more than $1.4 billion on these upgrades.

To significantly reduce nutrient pollution and meet the EPA deadlines, Maryland (and all bay states) have to do much more to reduce the flow of pollutants from nonpoint source runoff, primarily from agriculture and developed urban areas. The substantial fish kills in Baltimore area creeks and rivers reported in the past weeks by The Sun are linked to such nutrient pollution.

These nonpoint sources contribute around 80 percent of the nutrients and all of the human-caused sediment destroying the bay’s water quality and living resources. The addition of chicken manure and fertilizer to row crops on the Eastern Shore exacerbates the problem, as many creeks and rivers on the shore are seriously degraded by nutrient and sediment pollutants, the vast majority of which come from farm lands.

The Senior Scientists and Policymakers for the Bay, of which we are all members, found that the voluntary, collaborative approach under the bay program has not worked, and current efforts have been insufficient and are failing. The group found the main barriers to restoration were these nonpoint sources: agricultural pollution and the pollution from new and previously developed areas.

Agriculture is the greatest source of nutrients and sediment pollution to the bay and the most cost-effective pollution source from which to achieve reductions. We write to re-affirm the critical need to better address nonpoint pollution and to abandon the current, mostly voluntary, efforts to curb farm pollution.

The O’Malley Administration has a major opportunity to assert leadership in addressing these farm pollution sources coming from more than a million tons of untreated farm animal manure and millions of pounds of chemical fertilizers applied to farmlands. The pending nutrient management regulations from Maryland’s Department of Agriculture are long overdue, and as proposed, they fall well short of what is needed and supported by sound science.

We stand behind theBay Scientists group’s unanimous conclusion that all raw, untreated farm animal manure be handled the same as treated human sludge when placed on farm fields.  The Maryland Department of Environment has strictly regulated human sludge since 1985. Why should the land application of untreated animal waste be treated differently than the treated sewage sludge from advanced wastewater treatment plants that destroy pathogens and remove all or a high percentage of contaminants? (Here is a copy of the letter sent to Governor in December 2012 on this subject)

Specifically, the proposed regulations from MDA should mirror the MDE requirements for human biosolids and should:

•Prohibit winter application of manure and all nutrients from November 1 through March 1. This requirement should be met beginning on October 1, 2013 and not be postponed until 2016 as proposed by MDA. The prohibition should be from November 1 statewide and not be allowed to slip to November 16 for all western shore farms as proposed by MDA. This two-week period is critical to prevent much more nutrient pollution.

•Require all manure and biosolids to be incorporated into the soil by the end of each working day. Allowing a 48-hour deadline, as proposed by MDA, would allow for the release of much more nutrients.

•Prohibit the application of manure and other phosphorus-containing nutrients to agricultural land where the soils are already phosphorus saturated (as is the case in a large fraction of Maryland’s Eastern Shore farmland). The MDA proposed regulations do not change the weak current requirements on this.

•Require the planting of a winter cereal grain cover crop by October 31 when manure or biosolids are applied earlier, which the proposed regulations do not require.

•Establish buffers as exist for sludge applications to protect streams and rivers from runoff, including a 100- foot buffer in the critical area. The proposed MDA changes only require a maximum 35-foot buffer, with significant exceptions, and the proposed changes do not cover ditches and other water bodies covered under the MDE regulations for sludge applications.

Finally, it is critical that MDE be given joint authority with MDA for adequate monitoring and enforcement of the provisions of the nutrient management regulations. Current farming practices are not being properly monitored, and laws are not properly enforced.

The requirements for human sludge have assured that only 25 percent of treated sewage sludge is applied to Maryland agricultural land. Nearly 90 percent of farm animal manure is deposited on farm fields. Sensibly regulating farm pollutants as noted above would reduce nitrogen pollution by more than removing all 425,000 septic systems in Maryland and would remove much more of the polluting phosphorus.

Unlike the Flush Tax, these changes might not cost the taxpayer a dime unless farm operatorsapply for the many grants available to them. For example, the Maryland Agricultural Cost Share Program has provided about $140 million in taxpayer funded grants to farmers, including up to 87.5 percent of the cost of manure handling structures as well as subsidies to transport manure off the farm where it is produced. (here is a letter from farmers expressing support for stronger regulations)

If the O’Malley administration does not stand up to the opposition from the agriculture lobby and the major chicken conglomerates that have successfully blocked the necessary changes to farm practices, efforts to restore the bay could be doomed. Maryland has been and must again assert leadership and properly regulate farm pollutants, particularly from manure. We can turn around the decline of the Chesapeake Bay estuary, but not with half-measures.

Gerald W. Winegrad and Bernie Fowler are former members of the Maryland Senate. Parris Glendening is a former Maryland governor. Walter Boynton is an ecologist with the University of Maryland’s Chesapeake Biological Laboratory. Thomas Fisher is a professor at the University of Maryland Center for Environmental Science. Tom Horton is an author and former Sun reporter. The views expressed are their own and not necessarily those of the organizations with which they are affiliated.

This post was published on June 18, 2012 in the Baltimore Sun:

www.baltimoresun.com/news/opinion/oped/bs-ed-manure-regulations-20120617,0,1876551.story

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(Posted by Gerald Winegrad)
 
The Maryland Department of Agriculture announced the development of weakened proposed regulations that are well short of the positions advocated by the Senior Scientists and Policymakers for the Bay to address the pollution from millions of tons of chicken and other farm animal manure that is poisoning ground and surface waters.  Some key elements of the proposals don’t even go into effect until 2016, allowing four more years to do just some of what has been required for land application of treated human sludge since 1985!

The reports from the University of Maryland scientists appointed by the Administration were kept from us and the public until just before the announcement of the proposals for regulations. These scientists recommended much more than was incorporated into the regulations and noted that the EPA’s Bay Program found that farm animal manure is responsible for 24 percent of the phosphorus (this is more than all the municipal WWTPs and industrial dischargers) and 15 percent of the nitrogen flowing to and choking the Bay. This does not include the atmospheric contribution of nitrogen from the volatilization of manure and fertilizer, and subsequent atmospheric deposition of the nitrates estimated at 7% of total bay nitrogen. Septic tanks Baywide are somewhere around 3 percent of the nitrogen, near zero of the phosphorus and for Maryland it’s 6 percent of the nitrogen and near zero of the phosphorous.

Please see our letter to the Governor’s Bay Cabinet urging action on new regulations. The new regulations ignore our science-based recommendations to conform chicken manure and other animal waste and nutrients placed on farm fields with the 1985 requirements for treated human sludge including:  prohibition on winter application after November 1, better buffer requirements including a 100′ buffer in the Critical Area, and a prohibition on the application of manure and other nutrients with phosphorus when the soils are already super-saturated with phosphorus. Also rejected was a requirement that there be adequate monitoring and enforcement of the Nutrient Management Regulations, which is currently lacking.

Please see The Sun article on the cozy relationship between Governor O’Malley and Perdue’s General Counsel and the Food and Water watch release on this issue.

It’s hard to win when you are playing against a stacked deck.

Also see the letter from two full-time working farmers on the need for better nutrient management regulations and in support of our positions.

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(Posted by Erik Michelsen)

In preparing for the 2012 Maryland Legislative session, the memories of largely unproductive sessions for the environment in 2010 and 2011 were very fresh. The combined environmental community – the Clean Water, Healthy Families coalition – resolved to be more focused, to pursue a direct request of legislators, and to focus on goals that would have a measurable impact on improving water quality. Those goals were:

• Finish upgrading the wastewater treatment plants that Maryland has already committed to upgrade.
• Ensure that local governments have resources to reduce polluted stormwater runoff and implement their local clean water plans.
• Reduce pollution from poorly planned development – including limiting new septic systems.
• Require that all wastewater discharges, including septic systems, are treated at the highest levels to protect public health and ensure clean water.

The first two goals were explicitly stated in Maryland’s Watershed Implementation Plan (WIP) and comprised the core funding strategies for the state’s efforts to address pollution from its central urban and suburban corridor. The last two were focused on ensuring that we don’t erase any gains we make via the first two by developing in a way that creates a staggering amount of new pollution.

As the clock ran down on the legislative session yesterday, the future of the Chesapeake and Maryland’s rivers hung in the balance. Early in the day, legislation to double the Bay Restoration Fund (or “flush fee”) passed, followed by a bill aimed at limiting sprawling growth by restricting where septic-served subdivisions can be located. The debate on a bill to require the 10 largest jurisdictions in the state to create dedicated stormwater restoration fees carried on late into the evening, with opponents, largely from the eastern shore and western Maryland, attempting to filibuster until the end of session, at midnight.

At one point, the floor leader for the bill, Senator Paul Pinsky, asked the opponents – many of whom had invented, and then promulgated, the notion of a “war on rural Maryland”  – why, when they opposed additional water quality regulations on farms on the grounds that agriculture wasn’t the only source of pollution to the bay,  they opposed a bill whose impacts fell most heavily on the densest areas of the state. The opponents fell back to a line of defense that can only be characterized as diversionary. They argued that Maryland’s overall pollution contribution was insignificant compared to the contribution of other states, that the cost of compliance was too expensive, and that the Chesapeake Bay TMDL “pollution diet” was in litigation, so there was no need to rush to address it.

Never mind the fact that the bill was aimed at jurisdictions with an MS4 stormwater permit, which has conditions and requirements that exist independent of the TMDL. Eventually though, the filibuster was shut down, those in favor of the bill in the Senate prevailed, and the bill was sent back to House and passed with 10 minutes to spare in the session.

The community still intends to pursue, through regulations, a requirement that all new septic systems be built using the best available technology, but we ended the evening with three of our four goals in hand and a strong commitment to address the fourth. There can be little doubt that the 2012 session will go down in Maryland lore as the “Session of the Bay,” despite the fact that it was tumultuous in many other respects.

And, with the close of the 2012, Maryland’s cities, town, and suburban enclaves are well positioned to meet their pollution reduction goals going forward. They have developed their plans and now have been given the tools to implement them in a timely fashion. There still remains important work to be done in other sectors, though, with Maryland’s nutrient management regulations still under consideration and an agricultural community divided over its willingness to be a full player in the recovery of Maryland’s most valuable natural resource. The session has ended, but the journey to restoration has just begun.

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