Chesapeake Bay Action Plan

A decision is expected soon in the highly publicized federal lawsuit Waterkeepers Alliance, Inc., vs. Alan and Kristen Hudson Farm and Perdue Farms, Inc. The outcome is anyone’s guess, but already testimony from the trial has made clear that Maryland’s effort to oversee and enforce nutrient management plans needs more muscle.

Nutrient management plans are developed to guide farmers in their fertilizer use and manure management to prevent water pollution. State officials say the plans are crucial to restoring Maryland’s waters. Yet testimony in this case shows how readily the process of developing and reviewing these required plans can go awry.

In the following excerpt, a lawyer for the Waterkeepers questions Mr. Hudson, the poultry grower, about his Comprehensive Nutrient Management Plan (CNMP), a plan he had developed during the lawsuit and paid for with public dollars.

Q:  In early February of 2012, in fact, February 15th of 2012, (the consultant who wrote the plan) sent you an updated [C]NMP, correct?

A:  Probably, yes.

Q:  But you told him that you needed to send it to your lawyers for comment, correct?

A:  Yes.

Q:  And then you got — you received information back (from the lawyer) – you called (the consultant), or he called you, and you had a phone conversation where you relayed the information on the changes that you wanted in the CNMP, correct?

A:  Probably.

Q:  And one of the changes you wanted removed was the notation that (the consultant) had made that in 2011 too much phosphorus had been applied on to some of your fields, correct?

A:  It could have been.

Q:  And another change that you asked him to make is (the consultant) had recommended what are known as vegetative environmental buffers, correct?

A:  He could have.

Q:  Well, those are the rows of trees that are planted in front of the fans to block emissions, correct?

A:  That’s what was in the plan.

Q:  That was in the plan. And you told him to take that out too?

A:  Yes.

Q:  There was also a pipe, a — that was going to be put in Ditch 3, correct?

A:  Yes.

Q:  And the purpose of the pipe in Ditch 3 was so that you could cover over Ditch 3 and plant vegetative buffers, so that the blow out of the fans would blow on to dirt in this area and not into the ditch, correct?

A:  That’s what was in the plan.

Q:  You told him to take that out?

A:  Yes.

Q:  (The consultant) also had a reference to dust from the poultry houses coming out. And you told him to take that out as well, didn’t you?

A:  Yes.

So, the farmer’s lawyer suggests the plan writer remove any mention that the poultry operation might pollute; the plan writer-paid with public money-alters his professional recommendations to satisfy this wish, and the farmer, whom it would seem from his testimony doesn’t want a plan to stop pollution, signs one that obfuscates his farm’s pollution sources.

Where does such a plan provide a public benefit in exchange for that public money?

Will the state officials catch it?

During the trial, officials of Maryland Department of Environment (MDE), the agency overseeing this CNMP, testified they visited the farm to verify basic facts like the number of chicken houses and had overlooked potential pollution routes, such as a pipe draining the production area. They said they had not been aware that measures to prevent pollution had been removed from the plan.

But one case can’t tell the tale for all farms, so to get a broader understanding consider this. The Maryland Department of Agriculture (MDA) and the MDE oversee the development and implementation of approximately 5,500 nutrient management plans, with MDA responsible for all but approximately 500 plans, the Comprehensive Nutrient Management Plans, which are written for farms that raise animals and which MDE oversees. Farmers are required to update their plans every three years and to file annual implementation reports detailing nutrient use. MDA checks to see the reports are filed, and in 2011 audited 450 farms to check on compliance.

The audits found 30 percent of farms had some problem: 20 percent had outdated plans; five percent revealed improper timing of nutrient applications, were incomplete, or backed by poor records; and five percent revealed an over application of nitrogen or phosphorus.

The department had to send 1,276 warning notices to farmers who had failed to file their implementation reports on time. By year’s end, 98 percent had submitted their reports, but 53 farmers failed to, and were fined.

I suspect, given the testimony, the 20 percent outdated plans, the slow reports on implementation, and oversight that borders on rubber-stamping, that MDE and MDA cannot ensure the development of effective plans or their enforcement as they are operating now. We need the legislature to fund enough MDA and MDE inspectors, stiffen penalties, and pass laws that will hold plan writers, farmers and growers and agri-businesses accountable for inadequate plans, and ultimately their pollution.

Dr. Tom Jones, President

Assateague Coastal Trust

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Thousands of tons of raw animal manure is put on Maryland farm fields each year from tens of millions of chickens and hundreds of thousands of pigs, cows, and other farm animals. Under pressure to reduce this significant source of Bay pollutants, the Maryland Department of Agriculture proposed soft new nutrient management regulations to deal with this problem last October but withdrew them under pressure from the farm and environmental community. These regulations were to better manage the farm application of manure, human sludge, and other fertilizers but were greatly weakened to meet the objections of the ag lobby.

After eight months of negotiations and efforts to strengthen the regulations as we have advocated in our Bay Action Plan [Nutrient Management Letter to Governor-Bay Cabinet], new regulations were proposed and published in the Maryland Register on June 29. These regs are still much too weak and fall well short of the Senior Scientists and Policymakers for the Bay science-based positions. Representatives of our group had discussed our positions in detail with the Bay Cabinet at a meeting last September. We have continued to advocate these common sense positions and members of our group sent detailed letter to the Governor and published an Op-ed in the Baltimore Sun ]NMR Sun OpEd No more half-measures June 18 2012 detailing the need for better management of animal manure and other nutrients.

Essentially, our recommendations center on the belief that that all animal manure—and all biosolids—should be regulated the same as human sludge from advanced wastewater treatment plants is regulated under MDE regs when these nutrient-containing materials are applied to farm land. Working with all major Maryland environmental groups, our recomemndations were fine tuned and those of other groups were combined in a JOINT STATEMENT calling for the adoption of the proposed regulations with 8 ESSENTIAL CHANGES. These changes address the shortcomings in the proposed manure regulations. The 8 Essential Changes in the proposed regs would do a lot to reduce nutrients that are choking the Bay–more than almost any other proposed or current law or regulation. NMR ENVIRO STATEMENT W Sign ons July 3 2012

WHAT CAN YOU DO?

The conservation community needs your help in working to gain the changes we have long supported. Remember the serious diseased fish and human infections in 1997 linked to excess nutrients from manure and other farm activities? Here’s help you can help in our uphill battle to improve the regulations:

1. SEND IN AN EMAILED LTR OF SUPPORT TO THE AELR COMMITTEE.

The Joint Committee on Administrative, Executive, and Legislative Review held a legislative hearing on July 10 at which the Maryland Farm Bureau and rural legislators attacked the proposed regulations. Conservation groups testified in support of the adoption of the proposed regulations with the 8 Essential Changes. Please send a letter supporting the adoption of the proposed regulations with the 8 ESSENTIAL CHANGES. you should email it to the AELR Committee Chairs: Senator Paul Pinsky via Ian Ullman, <IUllman@senate.state.md.us> and Delegate Anne Healey at: anne.healey@house.state.md.us  Address the email to: Joint Committee on Administrative, Executive and Legislative Review, c/o Department of Legislative Services, Legislative Services Building, 90 State Circle, Annapolis, MD 21401 and send copies to the two Legislative Services staff members, Mr. Isaacson: evan.isaacson@mlis.state.md.ud and Ms. Razulis at: marie.razulis@mlis.state.md.us asking that your email ltr be delivered to all AELR Committee members.

2. ATTEND AND SPEAK AT A REGIONAL MDA HEARING ON THE REGS.

Our group of Senior Scientists and Policymakers is working with others in the conservation community to assure a good turnout and to present a unified stand at the MDA hearings on the regs. You can present your support for adoption of the regulations as in the Joint Statement and of the 8 ESSENTIAL CHANGES and add your own personal insights and try to have others attend the meetings in Easton and Prince Frederick. The meetings run from 7:00 p.m. to 9:00 p.m.

Eastern Shore

Monday, July 23, 2012

Talbot Community Center

10028 Ocean Gateway

Easton, MD 21601

Southern Maryland

Wednesday, July 25, 2012

Calvert County Fairgrounds

140 Calvert Fair Drive

Prince Frederick, MD 20610

3. SEND IN AN EMAILED OR FAX’D LTR OF SUPPORT TO MDA.

Written comments may be sent to Jo Mercer, Ed.D., Program Manager, MDA’s Nutrient Management Program, Maryland Department of Agriculture, 50 Harry S. Truman Parkway, Annapolis, MD 21401, or email: jo.mercer@maryland.gov, or fax to (410) 841-5950. Comments will be accepted through August 13, 2012. Urge adoption of the proposed nutrient management regulations with the 8 ESSENTIAL CHANGES.

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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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(Posted by Gerald Winegrad)

Maryland’s 2012 General Assembly Session is now more than halfway over, and while elected officials are currently focused on the state’s budget, several pieces of important Chesapeake Bay legislation that would help clean up our waters await committee votes.

Today the Executive Council of the Senior Scientists and Policymakers for the Bay delivered this letter to key legislators in support of the following legislation that is in line with our 25-step “action plan,”  specifically with respect to science-based recommendations to control agricultural pollution, foster clean development, upgrade septic systems, and improve wastewater treatment plants:

• Reduce pollution from the spreading of animal waste on farm fields (Senate Bill 594)–See my recent Baltimore Sun op-ed and Will Morrow’s letter to the editor on the need for this legislation.
• Finish upgrading the wastewater treatment plants that Maryland has already committed to upgrade with enhanced revenues from the Bay Restoration Fund (Senate Bill 240 / House Bill 446)
• Ensure that local governments have resources to reduce polluted stormwater runoff and that they implement their local clean water plans (Senate Bill 614 / House Bill 987)
• Reduce pollution from poorly planned development by limiting new septic systems (Senate Bill 236 / House Bill 445)
• Require that all wastewater discharges, including septic systems, are treated at the level of best available technology to protect public health and ensure clean water (Through Amendments to Senate Bill 236 / House Bill 445 or by Regulation)

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