Maryland Senate Hearings on Phosphorus Regulations

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The following is an account from my colleague, Neil Saunders, on the recent Maryland Senate hearings on phosphorus management, which he attended on February 24, in Annapolis. The hearing addressed the recent phosphorus management regulations proposed by former Governor Martin O’Malley, and reversed by newly inaugurated Governor Larry Hogan.

Listening to testimony provided in the Senate committee hearing on the proposed Phosphorus Management Tool bill, one theme that continued to be raised is that of unintended consequences. Proponents of the bill, Senator Pinsky who sponsored the bill and the environmental and scientific community, argued that not taking action necessary to address the problem of excessive phosphorus pollution entering the Chesapeake Bay watershed would have the unintended consequences of continuing to degrade the Bay’s poor water quality. Opponents of the bill, Secretary Bartenfelder and concerned partners of agriculture, countered that passage of the overly restrictive legislation would have the unintended consequences of mismanaging the state’s efforts to reduce nutrient pollution within the agricultural community. They do not oppose the PMT outright, but instead advocate for implementation of the PMT through flexible administrative regulations. Given the history of water quality policy around the Chesapeake Bay, it is clear that one side isn’t as sincere as they want to appear.

On February 24th, the Maryland Senate Committee on Education, Health, and Environmental Affairs heard testimony on a proposed bill to put into law the same PMT regulations that were stopped at the last minute by newly elected Governor Hogan. The bill, Senate Bill 257, was sponsored by Senator Pinsky to address the excessive phosphorus levels in the Chesapeake Bay watershed, which has for decades contributed to the degradation of the Bay’s water quality. Specifically, the bill would update the method by which soil is measured for phosphorus and restrict the amount of animal manure, which is rich in the nutrient, that may be applied to farmlands where phosphorus levels are too high.

Under Maryland law, farmers must comply with a nutrient management plan to manage the application of nitrogen and phosphorus to their fields to prevent pollution to the Bay. The purpose of the nutrient management plan is to account for the nutrient needs of the crops as well as the risk of excessive nutrient runoff that can reach surface waters and ultimately pollute the Bay watershed. Currently, the Maryland Department of Agriculture relies on a model called the Phosphorus Site Index (PSI) to measure phosphorus levels and guides the department in making recommendations as to proper application rates. Senate Bill 257 would replace the PSI with a revised model for measuring phosphorus levels known as the Phosphorus Management Tool (PMT). The PMT, developed by the University of Maryland, more accurately identifies areas where there is high potential for phosphorus loss to nearby surface waters. The PSI, which was first developed in 2000 and revised in 2005, has been criticized by scientists to under-measure the risk of phosphorus loss, resulting in over-application of animal manure. The PMT would be implemented gradually over six years, with those fields with the highest phosphorus levels given the most time to be in compliance.

Senator Pinsky sponsored the bill after Governor Hogan recently blocked the PMT regulations from taking effect last month as part of outgoing Governor Martin O’Malley’s last moves before leaving office. Governor Hogan has since released his own proposed regulations immediately prior to the senate committee hearing; the debate is now whether the PMT should be adopted as regulations or passed as a piece of legislation. During testimony over the bill, Senator Pinsky acknowledged that adopting the PMT as an administrative regulation provides advantages in allowing flexibility to make minor changes in the future, but expressed serious concern that the Governor’s proposed regulations would ever be implemented and were not an attempt to delay implementation and save political face. Under Maryland law, the regulations proposed by the Governor cannot take effect until June 8th at the earliest. The previous regulations would have taken effect during the first week of February.

Senator Pinsky’s concerns do hold merit. For one, the environmental and scientific communities have advocated for years for new regulations to address excessive phosphorus caused by over application of animal manure. Several individuals from organizations such as the University of Maryland, Chesapeake Bay Foundation, Chesapeake Bay Commission, U.S. Ecological Survey, and Environmental Integrity Project joined the Senator before the Senate committee to express support for the bill. The consensus among them was that this bill is long overdue and fundamental to addressing phosphorus pollution from agriculture. Despite huge efforts under the EPA TMDL program, parts of the Bay watershed are still impaired and others, including the Lower Eastern Shore where chicken farming is heavily concentrated, are worsening.

Opponents to the bill included newly-appointed MDA Secretary Bartenfelder and members of the agricultural community. These individuals also expressed their concern for phosphorus management, but strongly advocated for the committee to vote down the legislation and allow the MDA to implement the revised regulations proposed by Governor Hogan. The complexity of phosphorus management, they contend, warrants greater study. The reality is, however, that this issue has been debated and studied for years. According to Senator Pinsky, these PMT regulations have been proposed and pull back four times prior to proposal of the current bill. The agricultural community has been well aware that changes must be made in how animal manure is used as fertilizer but has long argued that it is too costly or unfair to farmers. To argue that now, after opposing similar PMT regulations for so long, that the proper course of action is to go with the more flexible regulation route, leaves too open the possibility that such regulations will never be imposed. When questioned on this possibility, the Secretary gave his word that they would. The real question is, what has this Hogan-appointed secretary done in his short time in office besides already pull back the same regulations once.

Another concern is that the Hogan regulations, while fundamentally similar to the previous PMT regulations, include changes that may have significant substantive consequences. First, the Hogan regulations would alter the schedule of implementation and provide an initial two-year period wherein the PSI model would remain in effect so that farmers may study the effects that the PMT model will have on their farmlands and prepare for whatever added costs they will face going forward. After the two-year period, a five-year phase in period will begin, with full PMT implementation by 2022, and not 2021 under the proposed bill. Second, the regulations would impose an immediate ban on phosphorus application to fields that have a P FIV (Phosphorus Fertility Index Value) of only over 500. While this is ultimately a good thing for reducing potential phosphorus loss, for reference the optimal FIV level is between 50 and 100. Finally, and potentially most significantly, is the inclusion of language that conditions restrictions on animal manure application to the ability to market the manure and provide adequate alternate uses. The agricultural community has long advocated that this problem is too costly and too detrimental to farmers to fix through additional regulations.

The reality is that phosphorus loss caused by excessive animal manure application is an issue that will continue to worsen if not addressed. The state of Maryland has delayed taking action through administrative regulation for too long. Passing legislation will finally provide the incentives to address this issue. Advances in technology exist to turn unused animal manure into alternative energies, but, as mentioned during the senate committee hearing, require certainty in legislation to justify investments in these technologies. Also, the bill provides adequate phased-in implementation to make the transition easier for those farmers most affected by these changes, and Senator Pinsky affirmed during the hearing that he is ready to make additions to the budget to support the additional costs of the bill.

Instead of arguing about unintended consequences, we should be arguing about the intended consequences of a cleaner Bay.

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